CJnrtipU IGatu irijnnl SItbraty Cornell University Library KFP 529.T85 1913 V.I Treatise on practice in tlie civil courts 3 1924 024 704 086 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704086 A TREATISE Practice in tlie Civil Courts of Record OF PENNSYLVANIA. BY FRANCIS J. TROUBAT and WILLIAM W. HALY. SIXTH EDITION. Revised, Rewritten and Greatly Enlarged BY ALBERT S. BOLLES and WILLIAM S. KIRKPATRICK. IN FOUR VOLUMES. VOL. I. PHILADELPHIA: THE GEORGE T. BISEL COMPANY, law publishers and booksellers. 1913. A TREATISE Practice in the Civil Courts of Record OF PENNSYLVANIA. FRANCIS J. TROUBAT and WILLIAM W. HALY. SIXTH EDITION. Revised, Rewritten and Greatly Enlarged BY ALBERT S. BOLLES and WILLIAM S. KIRKPATRICK. IN FOUR VOLUMES. VOL. I. PHILADELPHIA: THE GEORGE T. BISEL COMPANY, LAW PUBLISHERS AND BOOKSELLERS. 1913. Copyright 1913 by Thb GnoRGE T. BisEi, Company. PUBLISHERS' NOTE In seeking for a reviser of Troubat and Haly's Practice, the publishers appHed to Mr. Bolles, whose industry and competency were known to us through his Modern Law of Banking and other well known legal works. Consent was given on condition of his obtaining the assistance of his friend of many years, the Hon. William S. Kirkpatrick, formerly President Judge of the Third Judicial District and Attorney-General of Pennsylvania. The publishers therefore take great pleasure in stating that the manuscript, prepared by Mr. Bolles, has been read by Judge Kirkpatrick, and his suggestions, corrections, etc., have been faithfully observed. He has also read the proofs. Those who may use Troubat and Haly's Practice may be assured that the revisers have conscientiously sought to make a thorough revision of the work, which has so long held a great place in the estima- tion of the legal profession of Pennsylvania. THE GEORGE T. BISEL COMPANY. PREFACE TO THE SIXTH EDITION There could be no higher proof of the great merits of Troubat and Haly's work than that no other, covering the same broad field, and explaining the origin and development of legal practice in Pennsylvania, has ever appeared. Since the last revision num- erous statutes have been enacted modifying in many ways the law. The courts, too, have been busy adding their heavy weight of decisions to the great accumulation previously existing. Nev- ertheless, the greater part of the foundation on which rests the structure of Pennsylvania legal practice is of older date. Let any one who doubts the truth of this assertion conceive a system of practice containing only the additional statutes and decisions since the last edition of this work, and he will be speedily con- vinced. Much of the old has been retained to explain the new ; thus while all reviews in the appellate courts are now called appeals, their essential nature has not been changed by applying one name to all; and the importance of understanding what is a writ of error and a certiorari is not lessened by the enactment of the law of 1889. Those who use volumes one and two are reminded that two more volumes will, in due time, appear treating of the different legal actions or remedies now in use, and that many matters which might have been presented in these volumes are reserved for presentation in them. Many, perhaps most matters, might be presented with equal appropriateness in the general chapter to which they relate, or in the chapter dealing with the particular action or remedy to which they are also related. If therefore they are not found in these volumes, the reader is besought to trust the revisers' statement that they are reserved for the other volumes. It certainly is their intention to include in the entire work all the principles and rules of practice and every important case applying to them. Another feature of the present edition is the addition of a very large number of forms. Besides those in volumes one and two, many more will appear in the two concluding volumes ; in short, this edition will aim to give all the forms deemed most useful to the legal practitioner. A. S. B., April 15, 1913. W. S. K. TABLE OF CONTENTS VOL. I. Chapter I. Page Of the Courts, I Chapter II. Administration of Equity under the Forms of Common Law, 54 Chapter III. Principles of Equity, 99 Chapter IV. General Powers of the Court, 167 Chapter V. Of the Officers of the Courts, 177 Chapter VI. Of Attorneys, 189 Chapter VII. Commencement of Actions, 228 Chapter VIII. Appearance, Entry and Opening of a Default, 282 Chapter IX. Of the Capias ad Respondendum, 302 Chapter X. Of the Warrant of Arrest, 349 Chapter XI. Commencement of Actions by Attachment, 364 Chapter XII. Of Amicable Actions, 396 Chapter XIII. Of the Statement, 400 Chapter XIV. Of Judgment by Default after Appearance, 490 Chapter XV. Of Judgment by Confession, 582 Chapter XVI. Of the Writ of Inquiry and Assessment of Damages, 614 Table of Contents. Chapter XVII. Page Proceedings between Statement and Plea, 629 Chapter XVIII. Of Pleas, 671 Chapter XIX. Of Discontinuance and Nolle Prosequi, 710 Chapter XX. Of the Replication and Subsequent Pleadings, 721 Chapter XXI. Of Demurrer, 726 Chapter XXII. Of Proceedings from Issue to Trial, 741 Chapter XXIII. Trial and Its Incidents 846 COMMON LAW PRACTICE IN PENNSYLVANIA CHAPTER I. Op the Courts. I. CONSTITUTIONAI, PROVISIONS. IV. 1. Diversities of courts. 2. Common law pleading and practice. II. Organization of the Su- preme Court. 3. Number of judges and tenure of ofSce. 4. Arrangement of districts. 5. Return-days. 6. Argument weeks. III. Jurisdiction 01? the Supreme Court. 7. Jurisdiction. 8. Writs that may be issued. 9. Appellate jurisdiction. 10. Limitation in amount. 11. Use of certiorari. 12. Are justices of oyer and termi- ner. 13. Authority in injunctions. 14. May issue writ of habeas corpus. 15. Mandamus proceedings. 16. Quo warranto. 17. Limitation of authority. 18. May establish rules of practice. Jurisdiction of the Superior Court. 19. Extent of its jurisdiction. 20. How limitation in amount is determined. 21. Effect of act of 1889. 22. Mandamus proceedings. 23. Rules of practice established by legislature. 24. Terms and return-days. V. Organization of Courts of Common Pleas. 25. History of the court. 26. Judicial districts. 27. How courts are organized. 28. Distribution of business. 29. Removal of cases. VI. Jurisdiction of the Courts OF Common Pleas. 30. Original jurisdiction. 31. What matters are included. 32. What matters are excluded. 33. Jurisdiction in divided coun- ties, etc. 34. Appeals. 35. Time for taking them. 2 Common Law Practice in Pennsylvania. 36. Affidavit is required. 43- Proceedings on appeals from a 37. Affidavit required in Philadel- justice. ^' , . 44. When certiorari may be grant- pnia. ^^ 38. Appellant must give bail. ^^ ^^^- ^^p^^, ^^.^^ ^^„ant of 39. How imperfect bail may be ^^^^^^ ^^^ ^^^ treated. perfected. ^g 1^;^^^^ ^jjg„ certiorari must be 40. Appeals nunc pro tunc. taken. 41. Right of appeal is favorably ^y_ Eifect of not doing so. regarded. 48. Certiorari in landlord and ten- 42. Mandamus to compel allow- ant cases. ance. 49. Equity jurisdiction. I. Constitutional Provisions. 1. Diversities of courts. By the constitution of Pennsylvania/ the judicial power is vested in a supreme court, in courts of common pleas, courts of oyer and terminer and general jail delivery,^ courts of quar- ter sessions of the peace, orphans' courts, magistrates' courts, and in such other courts as the general assembly may from time to time establish. But the legislature is prohibited from creat- ing other courts, to exercise the powers thereby vested in the judges of the courts of common pleas and orphans' courts;^ and from establishing any court of original jurisdiction, to be pre- sided over by one or more of the judges of the supreme court.* The constitution further provides that all laws relating to courts shall be general, and of uniform operation; and that the organi- zation, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judgments of such courts, shall be uniform." But this provision has been held not to repeal special laws.* 2. Common law pleading and practice. The courts of Pennsylvania have retained the common law 1 Art V. §1. 2 See Turner v. Commonwealth, 86 Pa. 54. 3 Art. V. §26. 4 Art V. §21. 5 Art V. §26. The legislature cannot, under pretext of classification, pass a law which can have no effect, except in a single county of the state. Commonwealth v. Patton, 88 Pa. 258; McCarthy v. Common- wealth, no Pa. 243; Morrison v. Bachert, 112 Pa. 322; Perkins v. Phila- delphia, 156 Pa. 554. 6 Bright v. Oak Dale Coal & Mining Co., 31 L. I. 141. Of thb Courts. 3 system of pleading and practice. This system, matured by the wisdom of ages, and founded on principles of truth and sound reason, has been abolished in many of our states, and, in its stead, codes have been adopted.^ The code has not abolished the distinction between legal and equitable remedies; nor has it af- fected the fundamental principles which govern the different forms of action. That which is, in reality, an action of trover is as distinct from one of replevin, under the code, so far as re- spects the principles of the action, as at common law. The diffi- culties which have sometimes arisen from a mistake in the form of action, have been remedied, in this state, by a simple enact- ment, which authorizes the courts, in a proper case, to allow an amendment of the form of action, in furtherance of the inter- ests of justice ; while the Act of 1887, abolishing the distinctions previously existing between actions ex contractu and all de- mands in debt, assumpsit and covenant, and rendering them re- coverable in one form of action, possesses a still wider scope.* II. Organization of the Supreme Court. 3. Number of judges and tenure of office, (a) The constitution provides that the supreme court shall consist of seven judges, who shall be elected by the qualified electors of the state at large. They shall hold their offices for the term of twenty-one years, if they so long behave themselves well, but shall not be again eligible. The judge whose commission shall first expire shall be chief justice, and thereafter, each judge whose commission shall first expire, in turn, be chief justice. 4. Arrangement of districts. The Act of 1834 divided the state into four districts, for the purpose of holding the supreme court — ^the Eastern, Northern, Middle and Western districts; but, by the Act of 5 May 1876,^ the court is authorized, in its discretion, to change and transfer from one district to another, any county or counties of the com- monwealth; and, for the purpose of expediting the disposal of the business of the county or counties so transferred and changed, to change the return-days of the terms of the several districts in a 2 Vale 3441, 4796. 7 Act 10 May, 1871, P. L. 265, i Purd. §6, p. 312. 8 May 25, P. L. 271, 3 Purd. §1, p. 3608. 9 P. L. IIS, 4 Purd. §10, p. 4509. See Ibid, note (a). • ■ 4 Common Law Practice in Pennsylvania. the commonwealth; to change, increase or diminish the number of weeks of the respective terms in any district; and to make all the orders, rules and decrees necessary to carry these provisions into effect. Under the authority thus conferred, the court has made the fol- lowing re-arrangement of the several districts, by wnich the Northern district is virtually abolished. The Eastern district is composed of the counties of— Adams, Erie, Northumberland, Bedford, Fayette, Philadelphia, Berks, Franklin, Perry, Blair, Huntingdon, Pike, Bradford, Juniata, Potter, Bucks, Lackawanna, Schuylkill, Cameron, Lancaster, Snyder, Carbon, Lebanon, Sullivan, Chester, Lehigh, Susquehanna, Centre, Luzerne, Tioga, Clearfield, Lycoming, Union, Clinton, McKean, Warren, Columbia, Mifflin, Wayne, Crawford, Monroe, Wyoming, Cumberland, Montgomery, York. Delaware, Montour, Elk, Northampton, Middle District- Dauphin, Fulton. Western District — Allegheny, Forest, Somerset, Armstrong, Greene, Venango, Beaver, Indiana, Washington, Butler, Jefferson, Westmoreland. Cambria, Lawrence, Clarion, Mercer, The supreme court holds three terms anually : one, at Philadel- phia, for the Eastern district, on the first Monday of January; one, at Harrisburg, for the Middle district, on the first Monday of May; and one, at Pittsburgh, for the Western district, on the first Monday of October." 10 Act May s, 1871, see 4 Purd. note (b) 4510. Of the Courts. 5 5. Return days. "The first and last day of every term of the supreme court in each district shall be a common day of return of all writs and process, whether original, mesne or judicial, or other proceeding issuing from the court in the respective district, at the election of the party suing it out, provided nevertheless that judicial process which shall bear teste on the first day of any term shall not be made returnable on the last day of the same term except in such cases as the court by their rules or special order shall direct. The last Monday in July is also a day for the teste and return of all writs in the Eastern district, in the same manner as at the regular terms of the court." "The return day of appeals for the second period of Philadelphia County shall be the twelfth Monday of the term."^^ 6. Argument weeks. The argument weeks are as follows : Eastern District. The first, second, third and fourth Mondays of January for the county of Philadelphia. The fourth Monday following the first Monday of January in each year for the counties of Lehigh and Montgomery. The fifth Monday following the first Monday of January for the counties of Chester, Delaware and Bucks. The sixth Monday following the first Monday of January for the counties of Schuylkill, Lebanon and Lycoming. The seventh Monday following the first Monday in January for the counties of Lackawanna, Wayne, Pike and Wyoming. The eighth Monday following the first Monday in January for the counties of Berks, Montour and Adams. The ninth Monday following the first Monday in January for the counties of Northampton, Carbon, Monroe and Franklin. The tenth Monday following the first Monday in January for the counties of Bradford, Clinton, Cameron, Sullivan and Sus- quehanna. The eleventh, twelfth and thirteenth Mondays following the first Monday of January for the county of Philadelphia. The fourteenth Monday following the first Monday in January for the counties of Luzerne and Columbia. II April 14, 1834, §§"-13. P- L- 342, 4 Purd. §§18-20, p. 4510, Sup. Ct. Rule 2S. 6 Common Law Practice in Pennsylvania. The fifteenth Monday following the first Monday in January for the counties of Blair, Centre, Clearfield and Huntingdon. The sixteenth Monday following the first Monday in January for the counties of Crawford, Erie and Cumberland. The seventeenth Monday following the first Monday in Janu- ary for the counties of Warren, McKean, Tioga, Potter and Elk. The eighteenth Monday following the first Monday in January for the counties of Bedford, Fayette, Union, Snyder, Northum- berland, Juniata, Mififlin and Perry. The nineteenth Monday following the first Monday in January for the counties of Lancaster and York. Middle District. The twentieth Monday after the first Monday of January for the counties of Dauphin and Fulton. Western District. The first Monday in October for the counties of Armstrong, Cambria, Clarion, Forest, Jefferson, Mercer, Somerset, Venango and Westmoreland. The second Monday in October for the counties of Beaver, Butler, Greene, Indiana, Lawrence and Washington. The third Monday in October, and continuing until the list has been heard, for the county of Allegheny.^^ III. Jurisdiction of the Supreme Court. 7. Jurisdiction, (b) By the act of 22 May, 1722,^^ a court of record was estab- lished, styled the supreme court of Pennsylvania. The 13th sec- tion of this act conferred on the judges power "to hear and de- termine all causes, matters and things cognisable in the said court; and also to hear and determine all and all manner of pleas, plaints and causes which shall be removed or brought there from the respective general quarter sessions of the peace, and courts of common pleas, or from any other court of this province, by virtue of any of the said writs ; and to examine and correct all and all manner of errors of the justices and magistrates of this province, in their judgments, process and proceedings in the said courts, as well in all pleas of the crown, as in all pleas, real, per- sonal and mixed; and thereupon to reverse or afifirm the said b 2 Vale 3430, 4793. 12 Sup. Ct. Rule 36. 13 §13, I Sm. Iv. 140, 4 Purd. §26, p. 4512. Of thb Courts. 7 judgments, as the law doth or shall direct; and also to examine, correct and punish the contempts, omissions and neglects, favors, corruptions and defaults of all or any of the justices of the peace, sheriffs, coroners, clerks and other officers, within the respective counties ; and also shall award process for levying as well of such fines, forfeitures and amerciaments, as shall be entreated into the said supreme court, as of the fines, forfeitures and amerciaments which shall be sent, taxed and set there, and not paid to the uses they are or shall be appropriated; and generally shall minister justice to all persons, and exercise the jurisdiction and powers hereby granted, concerning all and singular the premises, accord- ing to law, as fully and amply, to all intents and purposes what- soever, as the justices of the court of king's bench, common pleas, and exchequer, at Westminster, or any of them, can or may do." The court still possesses these great powers, except so far as they have been limited by subsequent constitutional and statutory provisions. It has frequently been determined that the appellate jurisdiction of the supreme court cannot be taken away, except by express terms or irresistible implication.^* 8. Writs that may be issued. The act of 1722 further provides that every supreme court justice may issue writs of habeas corpus, certiorari and writs of error, and all remedial and other writs and process returnable to that court.^^ Under this statute the supreme court has issued writs as a common law writ and preserved the common law prac- tice in all proceedings thereon.^* Again, a justice has power at chambers to make an admonitory order previous to the hearing of a case in equity though the court may be sitting in banc at the time in another district.^' Being ex-officio a justice of the peace,^' if he should sit on election day to hear questions arising from breaches of the peace and illegal acts committed by election of- ficers, he would sit merely as a committing magistrate.^* 14 Burginhofin v. Martin, 3 Yeates 479; Overseers v. Smith, 2 S. & R. 363; Moore v. Albright, 4 S. & R. 234; Commonwealth v. Beaumont, 4 R. 366; Hummel's Case, 9 W. 430; Commonwealth v. Betts, 76 Pa. 465; Chase v. Miller, 41 Pa. 403; Nobles v. Piollet, 16 Super. Ct. 386. 15 May 22, §11, I Sm. L. 139, 4 Purd. §27, p. 4513. 16 Commonwealth v. Barnett, 199 Pa. 161, 178. 17 Erie & North East R. Co. v. Casey, 26 Pa. 287. 18 Respublica v. Cobbett, 3 Yeates 93. 19 Election Court Case, 204 Pa. 92 8 Common Law Practice tn Pennsylvania. As the jurisdiction of the supreme court extends over the Btate,^" the legislature has no power to limit or prohibit the court from issuing its process at any time to all parts of the common- wealth.^i The division of the state into districts does not aflfect its jurisdiction ; it may direct that a cause or preliminary ques- tion, no matter where it arose, be heard in the district where the supreme court is sitting.^^ The act of 1836 "^ also provides that it shall be the duty of the supreme court, at their sessions in banc, from time to time, to de- vise and establish, by rule of court, such new writs and forms of proceedings, as in their opinion shall be necessary or convenient to the full, direct and uniform execution of the powers and juris- diction possessed by the said court, or by the courts of common pleas or orphans' courts; provided, that they shall not enlarge, abridge or alter the jurisdiction of any of the courts, or impair the right of trial by jury, or dispense with or supply the use of any form of proceeding which shall be made necessary by stat- ute. Whenever the court shall devise and establish any new writ or form, or make any rule or order relative thereto, they shall cause notice thereof to be given to the courts, or to the president judges of the courts, for which such writ, form or rule shall be made or appointed; and also, to the governor of the common- wealth, for the information of the legislature at their next meet- ing; ,and the courts, or the president judge of the courts, to which any such rule shall be made known, shall cause the same to be published in open court, and to be recorded with the rules of court ; and after the expiration of three months from the recording of such rule, the same shall be obligatory and in full effect. g. Appellate jurisdiction, (c) The act of 1836 "* declares that the supreme court shall have power to hear and determine causes which shall be brought or c 2 Vale 4793. 20 Const. 1874, Art. V. §3. 21 Commonwealth v. Allegheny County Commissioners, 37 Pa. 237. 22 Pennsylvania R. Co. v. Canal Commissioners, 21 Pa. 9; Hazen v. Commonwealth, 23 Pa. 355; Commonwealth v. Pittsburgh Councils, 34 Pa. 496; Ewing V. Filley, 43 Pa. 384; Kraft's Appeal, 94 Pa. 449. But see Commonwealth v. Hanover & Carlisle Turnpike Road Co., 9 S. & R. 55. 23 June 16, §§3-7, P. L. 786, 4 Purd. §§39-43, P- 4Si8. 24 June 16, P. L. 78s, 4 Purd. §30, p. 4514. Op the Courts. 9 removed there from any other court of the commonwealth, to ex- amine and correct all errors of justices and courts, as well in criminal as in civil pleas, and to reverse, modify or afifirm judg- ments and decrees; and generally, to minister justice to all per- sons, fully and amply, imder the constitution and laws of the commonwealth ; and to issue execution and other process as may be required. The court has inherent power to revise the pro- ceedings of all inferior jurisdictions, and to correct errors in their ^^ proceedings unless expressly excluded by statute; and may issue all kinds of process and adopt and use all kinds of legal forms needful to render its supervisory authority effective.^^ The use of certiorari and of habeas corpus is expressly sanc- tioned by the act of June 16, 1836.^^ And the act of 191 1 further provides that whenever any appeal from a final decree of the common pleas or orphans' court, on any question of distribution, shall be taken to the supreme court, all other appeals from the same decree and involving the same question shall also be taken.^' 10. Limitation in amount, (d) By act of 1899 in a joint action brought by husband and wife for damages suifered by her, or by parent and child for damages suffered by the child, in which several judgments are entered, if either judgment is greater than fifteen hundred dollars, appeals from both judgments may be taken directly to the supreme court ; also appeals in all cases of disbarments f^ also in cases of felon- ious homicide.^" 11. Use of certiorari. (e) Moreover the supreme court can issue a writ of certiorari to bring up an indictment pending in the quarter sessions of oyer and terminer and all proceedings thereunder, can assign one of d I Vale 893, 2 Vale 4793. e I Vale 811. 25 Daniels v. Commonwealth, 7 Pa. 371 ; Torrence v. Comraonwealtli, 9 Pa. 184; Carpenter's Case, 14 Pa. 486; Mills v. Commonwealth, 13 Pa. 630; Beale v. Commonwealtli, 25 Pa. 11; White v. Commonwealth, 3 Brewst. 30. 26 Gosline v. Place, 32 Pa. 520; Schmuck v. Hartman, 222 Pa. 190. See Commonwealth v. Shortall, 206 Pa. 165, 178. 27 §7, P. L. 78s, 4 Purd. §43, p. 4518; Gosline v. Place, 32 Pa. 520. 28 P. L. 889, Purd. Supp. §S, p. 257. 29 May S. §S, P- L- 2S0, 2 Purd. §§22, 23, p. 1440. 30 June 24, 189s, P. L. 215, 2 Purd. § 26, p. 1441- 10 Common Law Peactice in Pennsylvania. its number to preside at the trial, or can send the record to the proper court of another county for trial.*^ Though having un- questioned authority to depute one of its members to hold an election court in Philadelphia on election day,^^ it will not thus act when no application has been made to the two judges of the quarter sessions who are to sit during the term within which the day of election falls, or to any other of the judges of the court of common pleas of Philadelphia, or when a sufficient case for the holding of a special election court has not been made out.** Nor has this power been taken away by the constitution of 1874 f* nor by the act of March 18, 1875.*" It must be exercised, how- ever, with extreme caution, to aid and not embarrass the adminis- tration of justice.'* And if the supreme court should grant a rule for a certiorari to the quarter sessions on the ground of shortness of time allowed the defendant to prepare his defence and the public excitement caused by newspaper comment, and at the time of hearing the rule conditions had changed so that the defendant was no longer at a disadvantage, the court should dis- charge the rule.'^ On a petition, however, for a certiorari to the court of oyer and terminer to remove the record and proceedings under an indictment, and for an order to change the venue, the supreme court will be governed by the appellate court's judgment of the facts.** The act of 1875,*^ changing the venue in civil cases, was intend- ed to introduce a system applicable to all cases that might arise, 31 Commonwealth v. Lyon, 4 Dall. 302; Commonwealth v. McGinnis, 2 Wh. 113; Commonwealth v. Simpson, 2 Grant 438; Commonwealth v. Mickel, 2 Phila. 147; Commonwealth v. Frowenfield, 3 Grant 99. 32 Constitution, Art. VIII. §14. 33 Election Court Case, 204 Pa. 92. 34 Art. V. §3; Commonwealth v. Balph, Jii Pa. 365; Commonwealth V. Delamater, 145 Pa. 210. 35 §i> P. L. 30, I Purd. §s6, p. 1042; Commonwealth v. Smith, 185 Pa. 553; Quay's Petition, 189 Pa. 517; Commonwealth v. Ronemus, 205 Pa. 420. 36 Commonwealth v. Mickel, 2 Phila. 147; Commonwealth v. Dela- mater, 145 Pa. 210; Commonwealth v. Smith, 185 Pa. 553; Common- wealth V. Green, 185 Pa. 641 ; Quay's Petition, 189 Pa. 517. 37 Commonwealth v. Fletcher, 208 Pa. 137. 38 Commonwealth v. Ronemus, 205 Pa. 420. 39 March 30, P.,L. 35, 3 Purd. §3, p. 3610. Of the Courts. ii and repealing the act of 1834,*" but did not take away the power of the supreme court to remove causes by certiorari from the quarter sessions, or from oyer and terminer.*^ Nor did this act repeal the act of 1856,*^ which provides that when the president judge is a party to a suit or proceeding in any court over which he presides it shall be tried by another who is disinterested.** It is therefore a cumulative act,** while the acts of 1878*° and 1907 *° extend the causes of removal. By the act of 1909 " the oath of the applicant desiring the change, required in the fifth di- vision of section one of the act of 1875, is omitted. 12. Are justices of oyer and terminer. (f) The constitution of 1874*' provides that the jurisdiction of the supreme court shall extend over the state, and its members are, by virtue of their office, justices of oyer and terminer and general jail delivery in the several counties. Each justice has power to hold such a court,*^ and on the certificate of the presi- dent judge of the proper district showing his inability to try a prisoner the supreme court will appoint one of its members to try him.*" Again, the supreme court has power to send a criminal case removed into that court by certiorari to another county for trial and, if need be, by one of its own members.*^ He has power to sit and try indictments in any county,'^ and the jury for the trial in the oyer and terminer of the supreme court will be taken from the panel of jurors returned to the venire from the county court of oyer and terminer.*^ Moreover the prothonotary of the f 2 Vale 3437. 40 Denny v. Cresson & Clearfield Co. R., 2 C. C. 645; Felts v. Del., Lack. & Western R., 170 Pa. 432, 3 Purd. §10, p. 3613. 41 Commonwealth v. Smith, 185 Pa. 553; Commonwealth v. Quay, 189 Pa. 517. 42 April 22, P. I/. Soo. I Purd. §82, p. 634. 43 Wallace v. Jameson, 179 Pa. 98. 44 Ibid. 45 May 22, P. L. 98, 3 Purd. §11, p. 3613. 46 June I, P. L. 374, 5 Purd. §§2-4, p. 5847. 47 March 18, P. L. 37. S Purd. 5847. 48 Art. V. §3. 49 Commonwealth v. Ickhoff, 33 Pa. 80. 50 Commonwealth v. Drum, 58 Pa. 9. 51 Commonwealth v. Balph, in Pa. 365; Quay's Case, 189 Pa. 517. 52 Ibid. 53 Commonwealth v. Drum, 58 Pa. 9. 12 Common Law Practice in Pennsylvania. common pleas is ex-officio clerk of the oyer and terminer of the supreme court in a county where there is no prothonotary of the supreme court.°* 13. Authority in injunctions, (g) The justices of the supreme court have original jurisdiction in cases of injunction where a corporation is a party defendant, of habeas corpus, of mandamus to courts of inferior jurisdiction, and of quo warranto to all officers of the commonwealth whose jurisdiction extends over the state.^° The jurisdiction of the su- preme court in such cases is not exclusive; and the jurisdiction of the common pleas in cases of injunction against corporations is not thereby taken away.^® As jurisdiction in such cases is option- al, the supreme court will not assume it unless the case be of unu- sual importance, which must appear in the bill.^' Nor will the su- preme court assume jurisdiction and grant an injunction when a bill for the same purpose is pending in the common pleas.°' Again, when the injunction is merely incidental to the main relief asked, and that relief is without the jurisdiction of the court, the bill cannot be entertained.^^ The supreme court therefore has jurisdiction of a bill filed by a lessee railroad company to prevent the lessor railroad company from interfering with its use of the road.*" The statute is broad enough to include municipal cor- poration cases in which they are defendants,'^ but in no case of an injunction will the court make a decree against an individual g 2 Vale 4793. 54 Act April 14, 1834, §61, P. L. 352, 3 Purd. §38, p. 3731. 55 Const. 1874, Art. V. §3. 56 McGeorge v. Hancock Steel Co., 11 Phila. 602. 57 Wheeler v. Philadelphia, 77 Pa. 338; Buck Mountain Coal Co. v. Lehigh Coal & Nav. Co., 2 W. N. C. 241 ; Clark v. Borough of Washing- ton, 145 Pa. 566; De Walt v. Bartley, 146 Pa. 262. But see Commonwealth V. Baroux, 36 Pa. 262; Hottenstein v. Clement, 41 Pa. 502; Baptist Con- gregation V. Scannel, 3 Grant 48. 58 Cleveland, Painesville & Ashtabula R. v. Erie City, 27 Pa. 380. 59 Fargo v. Oil Creek & Allegheny River R., 8l Pa. 266; McClure v. People's Freight R., 32 L. I. 448. 60 Pittsburgh & Connellsville R. v. Mt. Pleasant & Broad Ford R., 76 Pa. 481. 61 Bruce v. Pittsburgh, 161 Pa. 517; De Walt v. Bartley, 146 Pa. 525 ; Wheeler v. Philadelphia, TJ Pa. 338. The supreme court will assume jurisdiction over a bill filed by a citizen of a municipal corporation to re- strain it from issuing bonds involving an increase of indebtedness beyond the legal limit. Bruce v. Pittsburgh, 161 Pa. 517. Of the Courts. 13 who is not a necessary party to the suit,^^ ©r grant an injunction against assignees for the benefit of creditors of an insolvent cor- poration.** 14. May issue writ of habeas corpus. (h) In issuing a writ of habeas corpus the supreme court has au- thority whenever a person is prosecuted for a non-indictable of- fense, or an offense over which the court below has no jurisdic- tion."* And if the return to the writ shows that the relator is held under a commitment for contempt from a subordinate court which wholly fails to show the nature of the contempt,*^ if there is not prima facie evidence of guilt against a prisoner he should be discharged.** But when a defendant gives recognizance to appear at the quarter sessions and afterwards voluntarily surren- ders himself to the sheriff, he is not entitled to a habeas corpus and certiorari from the supreme court.*' In all cases this au- thority should be exercised with extreme caution.*' Again, the inherent power of the supreme court, or of any member in vaca- tion, to grant a common law writ of habeas corpus whenever nec- essary in aid of a pending appeal is unquestioned, if not expressly conferred by statute.** Though a habeas corpus is a common law writ and may be al- lowed by a single judge, it must be heard before the court in banc.''* It cannot be substituted for a writ of error.''^ And when a party is in custody by virtue of a final decree or judgment, or process thereon, of a court of competent jurisdiction, no inquiry may be had into the process on which was founded the decree and no relief may be administered on habeas corpus.'^ But certiorari h 4 Vale 11194. 62 Crawford County v. Pittsburgh & Erie R. Co., 32 Pa. 141. 63 Coxe V. Bank of Pennsylvania, 30 Pa. 516. 64 Commonwealth v. Ketner, 92 Pa. 372. 6s Commonwealth v. Perkins, 124 Pa. 36. 66 Commonwealth v. Shortall, 206 Pa. 165. 67 Commonwealth v. Green, 185 Pa. 641. 68 Quay's Petition, 189 Pa. 517; Commonwealth v. Seechrist, 27 Super. Ct. 423. 69 Commonwealth v. Gibbons, 9 Super. Ct. 527. 70 GosUne v. Place, 32 Pa. 520. 71 Commonwealth v. Deacon, 8 S. & R. 72; Commonwealth v. Lecky, I W. 66; Commonwealth v. McCabe, 22 Pa. 450; Passraore Williamson's Case, 26 Pa. 9; Commonwealth v. Keeper of the Jail, 26 Pa. 579. 72 Commonwealth v. Seechrist, 27 Super. Ct. 423. 14 Common Law Practice in Pennsyi^vania. and habeas corpus may be severally used as ancillary to each other." And if a habeas corpus issues and the return shows that the prisoner is held by virtue of proceedings in a court over which the court issuing the habeas corpus has a supervisory power, that court may issue a certiorari to bring up the record, and may de- cide the case, or may review and correct the proceedings to give efficacy to the writ of habeas corpus. If a certiorari be issued to bring up a case into a higher court for hearing or review, the court may also issue a habeas corpus to bring up the defendant, and may admit him to bail, the form of recognizance being adapted to the exigencies of the case.'* 15. Mandamus proceedings, (i) The jurisdiction of the supreme court in mandamus proceed- mgs is limited to courts of inferior jurisdiction.'^ It cannot man- damus an executive officer,'^ or compel a register of wills to cer- tify a case to the orphans' court ;" nor does this restriction confer on the common pleas the power thus denied to the higher court.'* The supreme court will not entertain an original petition for a mandamus to a court of common pleas to vacate an order dis- charging a rule to show cause why an auditor should not be dis- missed, and to order a trial in open court of the petitioner's com- plaint.'* Nor will the attorney general grant permission to file in the supreme court in the name of the commonwealth a petition for a mandamus to compel a common pleas judge to appoint view- ers for the purpose of freeing a bridge from tolls.*" Lastly, there can be no mandamus to a court what to decide, but simply to hear and determine the case.*^ Nor is a mandamus i 6 Vale 16431. 73 Commonwealth v. Gibbons, 9 Super. Ct. 527. 74 Gosline v. Place, 32 Pa. 520; Byers v. Commonwealth, 42 Pa. 89; Commonwealth v. Superintendent of County Prison, 97 Pa. 211; Com- monwealth V. Keeper of Workhouse, 6 Super. Ct. 420; Commonwealth v. Keeper of County Prison, 26 Super. Ct. 191. 75 Const. 1874, Art. V. §3; Commonwealth v. Hartranft, ^^ Pa. 154. 76 Commonwealth v. Hartranft, ^^ Pa. 154. ']7 Burn's Will, i W. N. C. 270. 78 Commonwealth v. Wickersham, 90 Pa. 311. 79 Powel's Estate, 209 Pa. 76. 80 Taxpayer's Petition, 32 C. C. 499; Commonwealth v. Shafer, 54 P. L. J. 59- 81 Judges of Phila. Common Pleas, 3 Binn. 273; Newlin's Petition, 209 Pa. 76; Taxpayer's Petition, 32 C. C. 499; Commonwealth v. Shafer, 54 P. L. J. 59- Oi THE Courts. 15 a substitute for an appeal ; consequently it does not bring up for review the soundness of the discretion used, or the correctness of the court's conclusion.*^ The supreme court in any district shall exercise throughout the state original jurisdiction in the cases authorized by the organic law, and if not decided before the close of its session in that dis- trict shall have them certified to and filed for action with the pro- thonotary of the court where the next session shall be held, and from district to district until finally decided.** Prior to this act the supreme court had declared that it had authority to issue a mandamus to any part of the state without regard to the district in which the court was sitting.** 16. Quo warranto.(j) The jurisdiction of the supreme court in quo warranto pro- ceedings extends to all officers of the commonwealth whose juris- diction extends over the state.*^ This court therefore and the judges have exclusive original jurisdiction to issue writs of quo warranto to associate judges of the common pleas.** Consequent- ly the common pleas cannot entertain a writ of quo warranto di- rected to such judges.*' Whether a member of the soldiers' or- phan school commission is an officer of the commonwealth within the meaning of the constitution is an open question.** 17. Limitation of authority. In no other cases than those mentioned can the supreme court exercise original jurisdiction. It therefore has no jurisdiction of a proceeding to reproduce a lost deed ;** nor of a bill to approve the charter of a beneficial association f nor of a bill for specific performance;^^ nor of a bill of discovery in aid of an execution j 7 Vale 22250. 82 NewHn's Petition, 123 Pa. 541 ; Johnson's License, 165 Pa. 315. 83 Act June 8, 1893, §32, P- L. 3S0, 4 Purd. §29, p. 4514- 84 Pennsylvania R. Co. v. Canal Commissioners, 21 Pa. 9; Common- wealth V. Pittsburgh Councils, 34 Pa. 496; Commonwealth v. Allegheny- Co. Commissioners, 37 Pa. 277. But see Commonwealth v. Hanover & Carlisle Turnpike Road Co., 9 S. & R. 59. 85 Const. 1874, Art. V. §3. 86 Commonwealth v. Dumbauld, 97 Pa. 293. 87 Leib V. Commonwealth, 9 W. 200. 88 Skinner v. Commonwealth, 14 C. C. 347. 89 Nichol's Petition, 180 Pa. S91. 90 Tara Benevolent Society, 9 Phila. 287. 91 Sunbury & Erie R. Co. v. Cooper, 33 Pa. 278. i6 Common Law Practice in Pennsylvania. in another court f^ nor authority to direct a conveyance by a trus- tee, residing within the state, of the outstanding legal title to lands in another state ;^^ nor can take jurisdiction of a bill to re- strain a municipal corporation from doing an illegal act if the re- sult of delay does not clearly appear or if other relief is open.** But a justice may, in vacation, grant a rule to show cause why a judgment of non pros entered by the supreme court should not be stricken off, for this is not an exercise of original jurisdiction ;°' nor is the court prevented by the constitution from passing judg- ment on taxing officers who have neglected to impose a penalty on a taxpayer for not paying his tax.*° i8. May establish rules of practice, (k) By the act of 1836 the supreme court has authority to establish such rules for regulating practice and expediting the determina- tion of proceedings as they shall judge proper, not inconsistent with the constitution and laws of the state.'' By virtue of this authority rules have been established for the more effective pro- cedure of all matters in law and equity. These have the force of a statute and cannot be suspended by the inferior courts ; nor can they adopt other rules that are inconsistent with them.'* More- over they do not require special adoption by the inferior courts." IV. Jurisdiction of the Superior Court. 19. Extent of its jurisdiction. (1) The superior court has the same appellate jurisdiction that the supreme court previously had in all those cases enumerated in the act of 1895."" The superior court therefore has final, exclu- sive jurisdiction of all appeals from the courts of quarter ses- k 2 Vale 47gg. 1 I Vale 895, lois, 2 Vale 4800. 92 Davis V. Gerhard, 5 Wh. 466. 93 Vaughan v. Barclay, 6 Wh. 392. 94 Clark V. Borough of Washington, 145 Pa. 566. See DeWalt v. Hartley, 146 Pa. 525. 95 Lebanon Mutual Ins. Co. v. Erb, i At. 571. 96 Commonwealth v. Phila. & Reading Coal & Iron Co., 145 Pa. 283. • 97 §20, P. I1. 792, 4 Purd. §49, p. 4520. 98 Gibbons' Appeal, 104 Pa. 587; Cassidy v. Knapp, 167 Pa. 305; Ches- ter Traction Co. v. Phila., Wil. & Bait. R., jSo Pa. 432; Peterson v. At- lantic City R. Co., 177 Pa. 335, 2 Vale 4799. 99 Rauschman v. City Bank, i C. P. Rep. 17. 100 June 24, §7, P. L. 215, 4 Purd. §18, p. 4500 and other acts; Thomp- son V. Preston, 5 Super. Ct. 154. Of the Courts. 17 sions, except cases involving the right to a public office, even though involving the construction and application of the constitu- tion;^"^ also an appeal from a judgment of a quarter sessions where the only question is liability in a contested election ;^''= but when no facts are disclosed, the superior court cannot review an order of the court of quarter sessions refusing to resubmit an indictment to the grand jury.^"^ The superior court also has jurisdiction of all cases arising in the court of oyer and terminer except those of felonious homicide.^"* It has the same jurisdic- tion as the supreme court formerly exercised on certiorari.^"" It also has jurisdiction on certiorari of a refusal of the court below to allow an appeal from the judgment of a justice's court.^"^ This court or any judge in vacation can grant writs of habeas cor- pus,^°^ but its jurisdiction in this regard to annul decrees and judgments of a lower court is limited to revisory jurisdiction by the act of 1895.^°* It will not therefore exercise jurisdiction in habeas corpus in such a manner as to hinder and delay the trial of an indictment.^"' But it has power to review proceedings for improving county roads ;^^" on the other hand, it has no power to review evidence on an appeal from an order certifying the residence of a pauper.^^^ 20. How limitation in amount is determined. Its jurisdiction also extends to any action, claim, distribution or dispute of any kind in the common pleas whether originating there or reaching it by appeal or certiorari from a justice of the peace, alderman, magistrate or orphans' court, if the subject of controversy be either money, chattels, real or personal, or the pos- loi Commonwealth v. Dunham, 174 Pa. 436; Commonwealth v. Glad- felter, 174 Pa. 438; Springdale Township, 20 Super. Ct. 381. It has no jurisdiction in cases of contempt in refusing to testify in a proceeding in that court. Commonwealth v. Gibbons, 9 Super. Ct. 527. 102 Hayes' Election, 214 Pa. 551. 103 Commonwealth v. Charters, 20 Super. Ct. 599. 104 Shoemaker's Case, 175 Pa. 159. los Commonwealth v. Joseph Kohnle Brewing Co., i Super. Ct. 627. 106 Thompson v. Preston, S Super. Ct. 154. 107 Commonwealth v. Gibbons, 9 Super. Ct. 527. 108 Scotfs Petition, 10 Super. Ct. 286. 109 Commonwealth v. Keeper of County Prison, 26 Super. Ct. 191. no Middletown Road, 15 Super. Ct. 167. Ill Galeton Poor District v. Stewardson Poor District, 18 Super. Ct. i8 Common Law Practice in Pennsylvania. session of or title to property, and if the amount or value really in controversy in such single proceeding be not greater than fifteen hundred dollars, excluding costs, and is not brought nor defended by the attorney general.^" In actions of ejectment and all other actions involving the title to real property the certificate of the judge before whom the case was tried "shall be conclusive proof of such value.""' In all proceedings for tort or breach of con- tract, "the amount of the judgment decree or award ^^* shall be conclusive proof of the amount really in controversy, but if he recovers nothing the amount really in the controversy shall be determined by the amount of damages claimed in the statement of claim, or in the declaration." ^^^ Jurisdiction is determined by the amount of the appellant's interest ;^^'' nor can the jurisdiction of the superior court be taken away and conferred on the supreme court by lumping the claims of different appellants.^^' By the act of 191 1 ^^^ when any appeal from a final decree of any court of the common pleas or orphans' court, on any question of dis- tribution, shall be cognizable by and taken to the supreme court, so shall all other appeals be taken from the same decree and in- volving the same question. Again, if a creditor of a dece- dent is awarded a claim in the orphans' court amounting to more than $1,500 an appeal lies to the supreme court although the lega- tee appealing has an interest in the controversy less than the amount, nevertheless he can appeal because the amount of the award fixes the jurisdiction.^^" The act of 1899 fixes the amount of the money judgment in any kind of proceeding as conclusive proof of the amount really in controversy.^^" The certificate of amount in controversy required by the act, is indispensable, and 112 Mays, 1899. P- Iv. 248, 2 Purd. §§27, 28, p. 1441 ; also 4 Purd. §§21, 22, p. 4501. 113 May S, 1899, P. L. 248, 4 Purd. §23, p. 4502. 114 Ibid; May's Estate, 208 Pa. 64. 115 Ibid, §23, p. 4502. 116 Staib's Estate, 188, Pa. 238. 117 Staib's Estate, 188 Pa. 238; Samson's Estate, 201 Pa. 590; Jen- ning's Estate, 195 Pa. 406; May's Estate, 218 Pa. 64, 67. 118 Act April 27, P. L. loi, Purd. Supp. §8, p. 668. 119 May's Estate, 118 Pa. 64. 120 Prentice v. Hancock, 204 Pa. 130; Spring City Brick Co. v. Mar- tin Brick Machine Mfg. Co., 221 Pa. 385; Green v. Duffee, 231 Pa. 393. See Weaver v. Cone, 189 Pa. 298; Astwood v. Wanamaker, 209 Pa. 103; Makof V. Sherman, 17 Dist. 55. Of the Courts. 19 the parties can substitute no valuation therefor by agreement.^^^ On motion, in an appeal, the court will certify to the value of the land in dispute.^^^ And when the record in de lunatico proceed- ings fails to show the value of the property in controversy, evi- dence should be adduced so that the certificate can be given.^^' Again, when the purchase price of real estate, sold under an order of the orphans' court, is less than $1,500, the appeal from the order confirming the sale lies to the superior court.^^* 21. Effect of act of i88g. The act of May 9, 1889, transforming a review by certiorari into an appeal is in effect a certiorari, and the superior court is re- stricted to a review of the record proper; and the court exer- cises the same jurisdiction as the supreme court formerly did on certiorari.^^^ Nor did the acts of 1889 and 1895 enlarge the re- visory jurisdiction of the appellate courts.^^" The superior court will not suspend an appeal pending the disposition of an appeal of the same case to the supreme court.^^^ Moreover the certificate of the prothonotary of the lower court that an appeal has been taken and perfected in accordance with the statute must ^^* be filed within a reasonable time.^^^ 22. Mandamus proceedings. In mandamus proceedings no appeal lies to the superior court from a judgment commanding a defendant to permit the plaintiff to inspect the books of a corporation. In such a case the writ will be quashed, but the case will be certified to the supreme court.^^" And an appeal from an order refusing to open a judgment in quo warranto proceedings and from a decree awarding a peremptory mandamus, lie to the supreme court where an appeal, from the original judgment is pending.^^^ 121 Matthews v. Rising, 194 Pa. 217. 122 Bigler v. Pennsylvania Coal Co., 177 Pa. 28. 123 In re Misselwitz, 177 Pa. 359. 124 Walker's Estate, 25 Super. Ct. 256. 125 Himtingdon Co. Line, 14 Super. Ct. 571; Springdale Township, 20 Super. Ct. 381. 126 May 9, 1889, P. L. 148, 2 Purd. §45. P- I445. June 24, §7, P- L. 215, 4 Purd. §18, p. 4500; Commonwealth v. Rogers, 15 Super. Ct. 461. 127 Harris' Petition, 15 Super. Ct. 471. 128 June 24, 189s, §8, P. L. 212, 2 Purd. §34, p. 1443- 129 Ferree v. Bradenburg, i Super. Ct. 21. 130 Neubert v. Armstrong Water Co., 20 Super. Ct. 608. 131 Henderson v. O'Donnell, 7 Super. Ct. 49. 20 Common Law Practice in Pennsylvania. 33. Rules of practice established by legislature. The following rules of practice have been established by the legislature i"'^ "Whenever it is reasonably possible, the full bench of seven judges shall sit at the hearing and shall also take part in the ex- amination and decision of each appeal, but four judges shall be a quorum and may conduct the business of the court. (35) So far as practicable, appeals shall be heard in the order of time in which they are taken, and as speedily as a due regard for the convenience of the parties and the court will allow. And it shall be the duty of the court to make such rules as will accom- plish these two results. (36) The practice in the said superior court shall be governed by the rules which do now or may hereafter govern the practice in the supreme court, so far as the same may be applicable, except that no short list or hour list as provided by said rules shall be en- forced, and except also that the superior court may, in its discre- tion, make such other or different rules as it may consider to be necessary or desirable upon any subject connected with its juris- diction or its procedure. (37) The superior court may non pros any appeal for want of due prosecution. It may affirm, reverse, amend or modify any order, judgment or decree as it may think to be just, or it may return the record for further proceedings in the court below. But it may not increase (although it may reverse) and sentence upon any indictment. (38) And no judgment or decree for the payment of money, which is entered for the first time by the superior court, shall be a lien until the record is returned to the court below, when, at the re- quest of any person interested in said judgment or decree, it shall be entered by the prothonotary upon the proper dockets, and from the time of such entry it shall be a lien. But if an appeal is taken to the supreme court from such judgment or decree for the payment of money thus entered for the first time by the su- perior court, so that the record cannot immediately be returned to the court below, a certificate or (of?) such judgment or decree shall, at the request of any person interested therein, be made by the prothonotary of the superior court and be entered in the proper dockets by the prothonotary of the county from which the 132 §§3S-4i, 4 Purd. 4504. Of ths Courts. 21 appeal is taken, and from the time of such entry it shall be a lien. (39) If the money is collected upon execution issued within three weeks from the entry of the judgment, order or decree, or upon execution issued upon a judgment or decree which is afterwards reversed, the superior court may make an order of restitution. (40) Where it shall be made to appear to the superior court that the same questions, and those only, are raised on an appeal to that court as are raised on an appeal pending in the supreme court, the superior court may stay all proceedings before them until the decision by the supreme court of the appeal there pending, or may certify said cause to the supreme court, with the same effect as if originally properly taken thereto." (41) 24. Terms and return days. The judges of the superior court annually hold terms of the court, and appeals are returnable at the following times and places, except as provided in Rule 7 :^'' First — At Philadelphia : The first Monday of October, for the county of Philadelphia. The second Monday of October, for the county of Philadelphia. The third Monday of October, for the counties of Philadelphia, Franklin, Fulton and Wyoming. The fourth Monday of October, for the counties of Bedford, Blair, Centre, Clearfield, Huntingdon, Lebanon, McKean, North- umberland and Potter. The second Monday of November, for the counties of Berks and Lancaster. The third Monday of November, for the counties of Bradford, Bucks, Chester and Delaware. The first Monday of December, for the counties of Lehigh, Montgomery, Northampton, Schuylkill and Monroe. The second Monday of December, for the counties of Philadel- phia and Carbon. Second — ^At Williamsport : The first Tuesday after the last Monday of February, for the counties of Cameron, Clinton, Elk, Lycoming, Sullivan, Tioga and Union. Third— At Scranton : 133 Superior Court Rule 45. 22 Common Law Practice in Pennsylvania. The first Monday of March for the counties of Columhia, Lackawanna, Luzerne, Montour, Pike, Susquehanna and Wayne. Fourth — At Harrisburg: The second Monday of March, for the counties of Adams, Cumberland, Dauphin, Juniata, Mifflin, Perry, Snyder and York. Fifth— At Pittsburgh : The second Monday of April, for the counties of Allegheny, Crawford, Erie, Forest, Venango and Warren. The third Monday of April, for the counties of Fayette, Greene, Washington and Westmoreland. The fourth Monday of April for the county of Allegheny. The first Monday of May, for the counties of Cambria, Clarion, Indiana, Jefferson, Somerset and Allegheny. The second Monday of May, for the counties of Armstrong, Beaver, Butler, Lawrence and Mercer. V. Organization of the Courts of Common Pleas. 25. History of the court. In the early times of the Province of Pennsylvania, a civil and criminal jurisdiction was vested in the county courts ; they were founded on a plan similar to that of the county courts of Eng- land in their pristine greatness. In the year 1722, these jurisdic- tions were separated ; and power was only given to this court to hear and determine all civil pleas and causes, personal, real and mixed. The criminal jurisdiction was, at the same time, trans- ferred to a court, then instituted, and styled the general quarter sessions of the peace and goal delivery. At present, a court of common pleas is established for each county, under the state con- stitution. The state is divided into judicial districts, and for each of these districts a president judge, learned in the law, is elected by the qualified electors of the district over which he pre- sides, whose term of office is ten years. Not more than four counties can, by the provisions of the constitution, be included in any one judicial district.^^* 26. Judicial districts, (m) Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law and the general assembly shall provide m 2 Vale 3424. 134 Art. V. §4. Of the Courts. 23 for additional judges, as the business of the said district may re- quire.^^" Counties containing a population less than is sufficient to constitute separate districts, shall be formed into convenient sin- gle districts, or, if necessary, may be attached to contiguous dis- tricts, as the general assembly may provide. Where a new county is erected, by the division of an old one, which was a separate judicial district, it is the duty of the judge of the court of com- mon pleas of such county to organize the courts of the new coun- ty thus erected, though it contain more than forty thousand in- habitants.^'^ By the act of igoi ^'' the state is divided into fifty-six judicial districts. The largest of these outside Philadelphia is the fifth district, composed of the county of Allegheny, and having twelve judges. The act describes their mode of election and tenure of office. In all counties having more than one court of common pleas, a board of judges, composed of all the common pleas judges of the county, shall adopt and enforce uniform rules of practice and procedure. These shall provide for uniform lists for the disposition of the current business, for the arguments, and for causes to be tried in equity and at law, and for a uniform method and time for calling the lists and hearing causes.^'^ 27. How courts are organized. In the county of Philadelphia all the jurisdiction and powers theretofore vested in the district courts and courts of common pleas, are, by the constitution vested in five distinct and sep- arate courts of equal and co-ordinate jurisdiction, composed of three judges each. The said courts, in Philadelphia are designated respectively as the court of common pleas No. i. No. 2, No. 3, No. 4, and No. 5, but the number of said courts may be by law increased, from time to time, and shall be in like manner designated by successive numbers.^'^ 13s The legislature may create an additional law judge, in a district composed of several counties. Turner v. Commonwealth, 86 Pa. 54. 136 Commonwealth v. Harding, 6 W. N. C. 305. 137 July 18, P. L. 66g, i Purd. §§22-49, P- 623. 138 May 21, 1901, P. Iv. 287, I Purd. §95, p. 636. See also act relating to their powers and other matters, March 15, 1907, P. L. 20, S Purd. §§i- i7> p. S30I- The oflSce of associate judge, not learned in the law, is abol- ished in counties forming separate districts. Art. V. §5. 139 Const. Amendment, 1911, Purd. Supp. §1, p. 2. They do not take judicial notice of each other's records. Seltzer v. Greenwald, 2 W. N. C. 395- 24 Common L,aw Practice in Pennsylvania. In the county of Allegheny all the jurisdiction and powers heretofore vested in the several numbered courts of common pleas shall be vested in one court of common pleas, composed of all judges in commission in said courts. Such jurisdiction and powers shall extend to all proceedings at law and in equity which shall have been instituted in the several numbered courts, and shall be subject to such changes as may be made by law, and sub- ject to change of venue as provided by law. The president judge shall be selected as provided by law. The constitution also provides for increasing the number of judges from time to time."" 28. Distribution of business. In Philadelphia, all suits shall be instituted in the courts of common pleas, without designating the number of the court ; and the several courts shall distribute and apportion the business among them, in such manner as shall be prescribed by rules of court; and each court, to which any suit shall be thus assigned, shall have exclusive jurisdiction thereof, subject to change of venue, as shall be provided by law.^*^ By rule of court "all ac- tions and proceedings, except as otherwise provided, shall be as- signed by the prothonotary to the several courts of common pleas in rotation, one thousand cases to each court, exclusive of election matters." ^*^ "Bills in equity for discovery or to enjoin pending proceedings at law, and new suits upon the same cause of action wherein a discontinuance or non-suit has been entered, shall be assigned by the prothonotary to the court, term and number of the original action or proceeding." ^*^ The constitution provides that each court shall have its separate 140 Ibid. 141 Ibid. 142 J'hila. rule No. i. A former rule provided that the distribution, apportionment and assignment so made by the prothonotary should be conclusive upon all parties to such actions or proceedings; and the court to which the cases should be respectively distributed and assigned by the prothonotary, should, as provided by the constitution, have exclusive juris- diction thereof. 143 Phila. rule No. 2. Of the Courts. 25 dockets, except the judgment docket, which shall contain the judg- ments and liens of all the said courts, as is or may be directed by law.^" By the act of 1905 the judges of the separate orphans' courts, where called upon by the president or other law judge of any court of common pleas, may hear and determine all issues and other matters in equity as fully as may be done by the courts of common pleas or the law judges sitting in equity in accordance with the rules and practice governing the exercise of equity jurisdiction."" 29. Removal of cases, (n) "When actions or proceedings are pending in different courts which it would be convenient to have tried or determined by the same court, the court in which the one last brought shall be pend- ing, of its own motion, or upon a rule to show cause, may transfer it to the court in which the prior action or proceeding is pending." ^*^ And where a bill has been filed in one of the courts of common pleas to compel a trustee to account, a petition for his removal will, on motion of the respondent, be removed to the same court, although no answer has been filed.^*^ Likewise a purchaser at sheriff's sale of the interest of a member of a firm must file a bill for an account in the court from which the execu- tion issued.^** Also an action of debt on a recognizance of bail in error must be brought in the court of common pleas wherein the original suit was begun.^*' "Alias and pluries writs, executions, attachments and issues arising thereon, writs of scire facias to revise judgments, writs of scire facias on mechanics' and municipal claims and against n 2 Vale 4812. 144 Art. V, §7. 145 April 18, igos, P. L. 208, 5 Purd. §13, p. 5815. 143 Phila. court rule, adopted Dec. 6, 1907. See French v. Railroad Co., 36 L. I. 302. 144 Art. V. §7. 145 April 18, 190S, P. L. 208, S Purd. §13, p. 5815. 146 Phila. rule No. S, Daniel's Case, 10 C. C. 190; Griffith v. Church Extension Society, 17 Phila. 156. 147 Daniel's Case, 10 C. C. 100. 148 Bryan v. Dailey, 37 L. I. 322. 149 Wahl V. Wanamaker, 8 W. N. C. 306; Lukens v. Bryson, 9 W. N. C. S40. 26 Common Law Practice in Pennsylvania. garnishees, possessory actions under the act of April 20, 1905/^" and all other writs, actions and proceedings, which are founded upon or are ancillary to some original action or proceeding, shall be assigned by the prothonotary to the court, term and number of the original action or proceeding." ^^'^ "If the attorney for the plaintiff shall certify that a proceeding about to be commenced grows out of or is directly connected with litigation then pending or therefore decided by one of these courts, such proceeding shall be assigned to the court of the prior litigation; but that court, of its own motion or upon a rule to show cause, may transfer the proceeding to the court to which the current business was assigned when the proceeding was begun." "== The prothonotary is required to keep a separate general appearance docket for each court, wherein shall be entered all actions and proceedings of every kind assigned to the said courts respectively, except mechanics' and municipal claims and proceedings thereon.^^^* Mechanics' claims are to be kept in the mechanics' lien docket of the proper court; and all proceedings relative thereto entered in the same docket, and entitled as of the same term and number.^^^'' A Philadelphia rule of court also prescribes that "no record shall be removed from the office of the prothonotary except when needed for use in court, or by referees, auditors, masters, or other similar officers appointed by the court, who shall return it within three months after its taking, unless the court authorizes its longer retention." ^^^^ VI, Jurisdiction of the Common Pleas. 30. Original jurisdiction, (o) By the act of 16 June, 1836, §12,"= the court of common pleas has jurisdiction of all causes civil, personal, real and mixed, o 2 Vale 4801. 150 s Purd. §§16-34, p. 5476. 151 Phila. rule No. 3. 152 Ibid. No. 4. iS2a Phila. rule No. 8. iS2b Ibid. No. 9. IS2C Ibid. No. 13. 153 P. L. 787. I Purd. §90, p. 63s. Of the Coukts. 27 according to the constitution and laws of this commonwealth. Its original jurisdiction is without limit as to amount ; but, by the act of 1810,"* if any person shall commence, sue or prosecute any suit, for any debt or demand made cognisable, by that act, before a justice's court, in any other manner than is thereby directed, and shall obtain a verdict or judgment therein, which, without costs of suit, shall not amount to more than one hundred dol- lars, not having caused an oath or affirmation to be made, before the obtaining of the writ, and having filed the same in the pro- thonotary's office, that he, she or they so making oath or affirma- tion, did truly believe the debt due, or damages sustained, ex- ceeded the sum of one hundred dollars, he, she, or they so prose- cuting shall not recover costs in such suit. In actions not within the jurisdiction of a justice, the plaintiff, in general, is entitled to costs, without regard to the amount. Justices have no jurisdic- tion in ejectment; replevin; slander; actions on real contracts, where the title to lands may come in question ; actions for breach of promise of marriage; trespass, where the defendant makes affidavit that the title to lands will come in question ; assault and battery; false imprisonment, and actions for consequential dam- ages, recoverable only by special action on the case. In these cases, no previous affidavit is requisite.^°° 31. What matters are included. The common pleas can enforce the terms of a settlement and release between guardian and ward;^^^ also mandamus proceed- ings against state officers if they waive their privilege of exemp- tion and consent to the jurisdiction.^^' The court can strike from the medical register of a county names improperly registered;^"' entertain a petition for the reproduction of a lost deed ;^'^ also a suit for damages brought by a consumer of water against a water company for its failure to supply it,^*" and a suit pertaining to 154 5 Sm. L. 172. 155 For cases relating to jurisdiction of a justice's court, see 2 Vale 4999- 156 Lewis V. Browning, iii Pa. 493. 157 Commonwealth v. Bamett, 199 Pa. 161. 158 Campbell's Case, 197 Pa. 581. 159 Nichol's Petition, 180 Pa. 591. 160 Brace Brothers v. Pennsylvania Water Co., 49 P. L. J. 169. 28 Common Law Practice in Pennsylvania. the rates charged for the use of water ;"^ or a suit in a contro- versy between a physician and a poor district for compensation for services rendered a pauper.^"^ The court may confirm a trus- tee appointed by a majority of bondholders to fill a vacancy in the triisteeship ;^^^ has jurisdiction of a testamentary trust, vested in the trustees nomination, though they be also executors;^" in short, in all cases of testamentary trust except where exclusive jurisdiction belongs to the orphans' court ;^^^ of the appointment of a new trustee on the application of a beneficiary in place of a deceased trustee created by deed."" It may compel a trustee for the benefit of creditors to account ;^^^ also the guardian of minor children who is also a trustee ;^^* and may appoint a trus- tee who is to exercise his trust distinct and collaterally from his executorship.^*" It may compel payment to the executor of a charge on real estate created by contract in the life of the de- cedent who has directed the executor to receive it ;^^° of the claim by a surviving partner of the decedent for a balance due, no ac- count having been settled in the decedent's lifetime i"'^ of the lia- bility of the owner of land by virtue of covenants in the line of his title ;^'^ of an order for the sale of real estate to pay the ex- penses of lunacy proceedings allowed by the common pleas ;^'^ and may fill a vacancy of mine inspector appointed by the gover- nor who resigns.^'* The common pleas also has jurisdiction of a suit for apprais- ers' fees in a decedent's estate ;^^° of the balance of the proceeds i6l Schroeder v. Gas & Water Co., 20 Super. Ct. 255, affg. 7 Lack. I, N. 277. 162 Redmond v. West New Castle Borough Poor District, 18 C. C. 276. 163 Tarbell's Appeal, 7 Super. Ct. 283. 164 Johnson's Appeal, 9 Pa. 416. 165 Seibert's Appeal, 19 Pa. 49. 166 Ex parte Conrad, 2 Ash. 527. 167 Whitney's Appeal, 22 Pa. 500. 168 Baskin's Appeal, 34 Pa. 272. He cannot blend one account as trus- tee and guardian in the orphans' court. Ibid. 169 Anderson v. Henszey, 39 Phila. 14; Nixon's Estate, 7 Phila. 505. 170 Capp V. Brunner, 132 Pa. 417. 171 Miller's Estate, 136 Pa. 349. 172 South Mahoning Township v. Marshall, 138 Pa. 570. 173 Young's Estate, 8 Pa. C. C. 4. 174 Martin's Case, 209 Pa. 266, affg. 29 C. C. 290. 17s Andrews v. Smith, 9 Del. 300. Op the Courts. 29 of a sheriff's sale of realty of a decedent under foreclosure of a mortgage given by him in his lifetime ;"^ of an appeal from the award of a jury of view ;"'' of matters relating to highways cross- ing a railroad at grade ; but not of the crossing of a highway by a lateral railroad;"* of matters pertaining to the opening of streets in cities of the third class,"' and under the act of Decem- ber 9, 1783, the quarter sessions and common pleas have concur- rent jurisdiction to remit or moderate recognizances taken or forfeited in the quarter sessions;^*" also of a case brought by a resident of another state and of all atixiliary questions relating to attachment.^*^ The appearance of counsel to defend in an action against a nonresident gives the court jurisdiction.'^*'' The com- mon pleas also has jurisdiction over property that has escheated to the state.'*^ 32. What matters are excluded. Turning to the negative side, the court of common pleas has no power to make an order on the executor of a lunatic to pay the costs of an inquisition, unless it was found before his death;'** or authority to strike from the register names of veterinary sur- geons registered within the time prescribed by a statute, for the remedy is exclusively in the quarter sessions;'*" or jurisdiction to order a trust fund into court not under its control ;'*' or au- thority to interfere with the acts of voluntary and unincorporated associations where no right and property is involved ;'*' or juris- diction to place children neither bad nor vagrant, whose parents have deserted them, under the custody of the house of refuge i^" 176 Fidelity Ins. & Trust Co. v. Sampson, 209 Pa. 214, affg. 13 Dist. 343- 177 Liberty St., 27 C. C. 156. 178 Pennsylvania R. Co. v. Bogert, 209 Pa. 589; Clifton Heights Bor- ough V. Kent Mfg. Co., 9 Del. 369. 179 Spring St., 112 Pa. 258. 180 Commonwealth v. Phillips, 8 Kulp 230. 181 Greevy v. Tome Institute, 2 Blair 249. 182 Wilson V. Hilliard, 17 W. W. C. 325- 183 Acts of May 2, 1889, P. L. 66, 2 Purd. §1, p. 1468, and of May 11, 1911, P. L. 281, Purd. Supp. 259. 184 Ebling's Estate, 134 Pa. 227. 18s Veterinary Surgeon's Case, 8 C. C. 185. 186 Gingerich's Estate, 9 C. C. 16. 187 Kears v. Howley, 188 Pa. 116. 188 Miles' Case, 10 Kulp 467. 30 Common Law Practice in Pennsylvania. or of an appeal where the justice had no jurisdiction of the cause of action ;^'^ or an appeal from the quarter sessions where special jurisdiction has been conferred in an action of a public officer ;^*" or authority to compel a magistrate to grant an appeal ;^°^ or of a bill of a remainderman to compel the executor of a tenant for life to apply the assets in his hands in discharge of arrears of ground rent which accrued during the lifetime of his testator ;^®'' or of a suit brought by two executors against their co-executor to recover assets of the state which they allege were collected as agent and appropriated to his own use ;"^ or a bill in equity filed by an executor of a husband against the executor of a wife where both estates are in process of settlement in the orphans' court ;^°* or the sale of a tug boat and division of the proceeds among the owners;^"* or authority to enter judgment against a guardian to the estate of a ward for necessaries ;^°^ nor interfere in the admin- istration of a trust created by a creditor's composition under the bankrupt act which has been confirmed by the federal court ;^^^ nor authority to revise or equalize the assessment of realty for the purpose of taxation;^** nor to cite trustees to account or re- move them who have been appointed by a federal court ;^'* nor to attack the goods of a bankrupt in the possession of a federal re- ceiver appointed in disregard of an injunction order made by the common pleas f" nor decree the distribution of a fund in the pos- session of a trustee among the heirs or next of kin of a deceased beneficiary f°^ nor appoint a trustee to execute a trust created by will to be performed by the executors f^ nor to appoint a trustee 189 Diehra v. Snell, 119 Pa. 316. 190 Campbell v. Grooms, loi Pa. 481. 191 Shaflfer v. Dohan, 5 C. C. 384; Klinetob v. Rood, 2 Kulp 419. 192 Macknison v. Macknison, 2 Grant 286. 193 Laflferty v. Corcoran, 40 W. N. C. 31. 194 Tyson v. Rittenhouse, 186 Pa. 137. 195 Schact V. Eschbacher, 7 Dist. 437. The jurisdiction is exclusive- ly for an admiralty court. Ibid. 196 Hale V. Capp, 10 Dist. 285. 197 Brown & Sons Case, 11 Dist. 685. 198 Bell's Appeal, 11 Dist. 732. 199 Brown & Sons Case, 28 C. C. 11. 200 Bethlehem Steel Co. v. Damon Safe & Iron Works Co., 4 Lack. Jur. 386. 201 Johnson's Estate, 2 Wh. 120. 202 Commonwealth v. Barnitz, 9 W. 252; Olwine's Appeal, 4 W. & S. 492. Of the Courts. 31 of a mere naked trust so long as heirs of the survivor are in being ;^°* nor to interfere with the sheriff in determining the suf- ficiency of a claim property bond in replevin,^"* though since 1903 this matter has been regulated by statute.^"^ 33. Jurisdiction in divided counties, etc.(p) It is a rule of the widest application that when a party selects a county in which to bring a suit, he cannot afterward question the jurisdiction.^"* Article V. of the Constitution providing for the organization of separate judicial districts in counties contain- ing more than forty thousand inhabitants, is not self-executing. It simply provides a method of legislative procedure.^"' And if another county is attached to one having that number, it has all the rights of a special judicial district notwithstanding.^"* A newly created county may be erected into a separate judi- cial district.^"* And when after a conditional verdict in ejectment the county is divided and the land falls into the new county, the record may be transferred to that county and proceedings had therein to enforce the verdict by an order of sale.^^° The act of 1878 '^^^ was not imperative in requiring all cases to be removed to the new county, and the court of the original county has juris- diction until the case is removed."^ The act of 1895 provides that all local actions originally begun in the county from which the new county has been taken may on the application of any party thereto and the order of the court of the original county, be removed to the new county.^^* A municipal corporation can be sued only in the county where p 2 Vale 3424, 4809. 203 Carlisle's Appeal, 9 W. 331. 204 Hill V. Mervine, 29 C. C. 260. 205 March 19, P. L. 39. 4 Purd. §9, p. 4140. 206 Fredericks v. Canal Co., 40 L. I. 24. 207 Commonwealth v. Harding, 87 Pa. 343. 208 Commonwealth v. Dumbauld, 97 Pa. 293; Clark v. Common- wealth, 29 Pa. 129. 209 Commonwealth v. Handley, 106 Pa. 245. 210 April 17, P. L. 17, repealed by the act of 1895. 211 Heath v. Gardner, 10 W. N. C. 495- 212 Hosie V. McCann, 2 Penny. 134. 213 June 27, P. L. 398, I Purd. §46, p. 842. 32 Common Law Peactics in Pennsylvania. it is situated,"* and this rule must be applied to a case in which the county is divided while the action is pending.^^^ The court may also review the action of city or ward com- mittee in compiling returns of a primary election,^^* but not the returns of township or borough elections under the acts of 1874 and 1899, ^s these apply only to general elections held for county, state or national officers f" nor review by certiorari the proceed- ings of the boards of ward commissioners elected in Bradford county under special acts, as such boards are not superior courts of record within the meaning of the constitution.^^* Lastly the equity side of the common pleas has jurisdiction to enforce the payment of legacies charged on land notwithstanding the conferring of such jurisdiction on the orphans' court by the act of 1834;^^° but the act of June, 1895,^^" changes the jurisdic- tion from the quarter sessions to the common pleas in equity pro- ceedings for apportioning indebtedness when a new school district is created.^^^ 34. Appeals. Amount, (q) The court of common pleas has jurisdiction by appeal from the judgment of a justice's court, where the amount in controversy exceeds five dollars and thirty-three cents (forty shillings), and the justice has decided against either party to that amount; or where referees appointed by the justice have decided against either party to the extent of twenty dollars.^^^' It is the amount of the demand or sum in controversy, and not the amount of the judgment, that regulates the right of appeal."* Thus, if the de- fendant have a bona fide cross-demand, exceeding five dollars and thirty-three cents, and the decision of the justice be against his q 2 Vale 5184. 214 Hecksher v. Philadelphia, 20 W. N. C. 52. 215 Church V. Scranton, 2 Kulp 515. 216 Falkenstein's Case, 30 P. L. J. 255; Douglas' Nomination Case, 30 P. Iv. J. 259. 217 Forkston Township Case, 12 Dist. 348. 218 Nobles V. Piollet, 16 Super. Ct. 386. 219 Brotzman v. Brotzman, i North. 13. 220 June 24, P. L. 2S9, i Purd. §97, p. 658. 221 Munhall Borough School District v. School District of Mifflin, 28 C. C. 360, afifd. 207 Pa. 638. 222 Act 20 March, 1810, §3, s Sm. L,. 162, 2 Purd. §62, p. 2107. 223 Downey v. Ferry, 2 W. 304; Stewart v. Keemle, 4 S. & R. 72; Bonham v. Santee, i Luz. L. R. 21. Of the Courts. 33 set-off, he is entitled to his appeal.^^* So, if there be a decision against a portion of the plaintiff's claim to an extent exceeding five dollars and thirty-three cents, he is entitled to an appeal.''^^ And, by act of 20 March 1845,228 the defendant is entitled to an appeal, whenever such right exists in favor of the plaintiff.^^^ It has been contended that the amount of the judgment, and not the sum in controversy, regulates the right of appeal f^^ the earlier construction of the statute has certainly been the most gen- erally followed.229 And when it is doubtful from the record whether the amount in controversy is over $5.33 or not, on a motion to strike off the appeal, the court will resolve the doubt in favor of the appellant.-'"' Again, the sum in controversy may be shown by parol. ^^^ But when the amount in dispute is less than $5.33 and there is no cross demand, there can be no ap- peal.^^^ Nor will a mandamus lie to compel the justice to allow an appeal in such a case.^^^ If however the sum in controversy be more than $5.33 the defendant's right of appeal is not cut off by the plaintiff's reduction at the trial of the sum claimed below those figures.25* But the plaintiff may by suing for one install- ment only of purchase money, though all are due, deprive the de- fendant of the right of appeal.^^^ With respect to a judgment on an award of referees no appeal lies if the claim does not exceed twenty dollars,^^^ but if the arbi- 224 Klinginsmith v. Nole, 3 P. & W. 120; Soop v. Coats, 12 S. & R. 388; McGonnegal v. Hopper, i Ash. 195. 225 Mack V. Thayre, 2 Phila. 291. 226 §3, P. L. 189, 2 Purd. §102, p. 2124. 227 Prestly v. Ross, 11 Pa. 410. 228 Garvey v. Murphy, i Wilcox 137; Elliott v. Palmer, 10 C. C. 427. See note (w), 2 Purd. 2108. 229 Downey v. Ferry, 2 W. 304; Klinetob v. Rood, 2 Kulp 419; Yotingblood v. Folkener, 2 Kulp 429; Bonham v. Santee, I L,uz. L. R. 21. 230 Flumm V. Markowitz, 2 Leh. Co. L. J. 61. 231 StoUars v. East Finley Township, 3 C. C. 209. 233 Ellis V. Brewster, 6 W. 277; Wallace v. Hickey, i Chester 166. 233 Lehigh Valley Coal Co. v. Saunders, 9 Kulp 171. 234 StoUars V. East Finley Township, 3 C. C. 209; Sample v. Shidel, 20 C. C. 427. But he may remit a part of the interest due. Leighow v. Northumberland Bridge Co., 2 C. C. 622. 23s U. S. Standard Pub. Co. v. Lane, 13 Dist. 599. 236 Ulrick V. Larkey, 6 S. & R. 285; Zane v. Johnson, i Ash. 42; Hoops V. Worthington, i P. A. Bro. 336; McGonnegal v. Hopper, i Ash. 19s; McCloskey v. McConnell, 9 W. 17; McKim v. Bryson, 2 S. & R. 34 Common Law Practice in Pennsylvania. trators reduce a claim which exceeded that amount to a smaller one the plaintiif may appeal.^" His right of appeal however is not extended by the act of 1845 "' providing for the right of ap- peal from judgments on the awards of referees to defendants in all cases wherein the right of appeal is enjoyed by the plaintiff. ^^^ Several questions have arisen relating to set-offs. If the de- fendant's claim is more than $5.33 he has the right of appeal,"" though the plaintiff's claim be less than that amount.^*^ And on a rule to strike off an appeal, the defendant may show that he of- fered a set-off for a larger sum than $5.33 which the justice re- fused to put in his record.^*^ The proof or averment of the amount must of course appear.^*' And where no record is con- tained in the docket the fact may be established by a written ac- count presented to the justice at the hearing and certified and sent up by him on appeal.^** No appeal lies where a matter exceeding $100 is referred to the justice by consent.^*' But if the demand is within the juris- diction of the justice an appeal will not be granted because the dclaration demands more than $100.^*® Lastly a defendant may not make payment of that portion of the judgment which he admits to be due and appeal for the bal- ance, as the cause of action would thereby be changed.^*^ 35. Time for taking them.(r) To confer jurisdiction on the common pleas, the appeal must be entered before the justice, within twenty days after judgment r I Vale 911, 2 Vale 5208. 463; Story V. Yost, 12 6. & R. 385; Bayard v. Hawk, 3 P. & W. 174; Walter v. Bechtol, S R. 228. But see Downey v. Ferry, 2 W. 304. 237 Soop V. Coats, 12 S. & R. 388; McGonnegal v. Hopper, i Ash. 19s; Marks v. Swearingen, 3 Pa. 454. 238 20 March, §3, P. L. 189, 2 Purd. §102, p. 2124. 239 Cook V. Dunkle, 25 Pa. 340; Markline v. Myers, 2 York 52. 240 Rafferty v. Clark, 18 W. N. C. 378; Steele v. Walton, 3 C. C. 211; Leary v. McKeeby, 7 Luz. L. R. 19S ; Henion v. Morton, 2 Ash. 150. 241 Schineller v. Herrman, i C. C. 145; Dobison v. Haddock, s Kulp 254. 242 Baldwin v. Burgess, i Wilcox 223. 243 Stetter v. Delaware & Hudson Canal Co., 8 Lack. L,. N. 49. 244 Klingensmith v. Nole, 3 P. & W. 119. 24s Harris v. Harrison, i P. A. Bro. 161. 246 Hoffman v. Dawson, 11 Pa. 280. 247 Wade V. Hook, 11 Super. Ct. 54. Oi THE Courts. 35 rendered; in computing which, the day of judgment is to be ex- cluded f*^ and if the twentieth day fall on Sunday, the appeal may be entered on the next day.^*® A large number of questions have arisen under this twenty-day limitation. First with respect to holidays. An appeal may be entered on a legal holiday.^°° And if the twentieth day fall on a legal holiday/^^ or Sunday,^^^ an appeal may be perfected on the following day; this rule, how- ever, has no application when the twentieth day after judgment falls on labor day.^°^ Again, a party may withdraw a defective appeal on Sunday and enter a new appeal on the following day, which is the return day.^^* The method of computation is to exclude the day on which the judgment is entered.^'^ If judgment be not entered on the day of hearing, the time for appeal begins to run ten days after the final hearing. ^^^ And the same rule applies by the act of 1877, when the defendant has no notice of the entry of judgment.^^' Prior to the passage of this act the right of appeal existed when- ever the justice held the case under advisement for twenty days after notice of the entry of the judgment.^^* Furthermore, if a justice reserves his decision until a certain date and then fails to decide, a party after waiting a reasonable time may depart, and his right to appeal begins to run from the end of ten days from that date or the date of special notice of the judgment if given be- 248 Act March 20, 1810, 5 Sm. L. 21, 2 Purd. §72, p. 1458; Browne v. Browne, 3 S. & R. 496; Cromelian v. Brink, 29 Pa. 523. See Vol. II. Chap. I, § 249 Goswiler's Estate, 3 P. & H. 201; Harker v. Addis, 4 Pa. 515, 250 Worthington v. Hobensack, 8 C. C. 65. 251 Linville v. Dalsam, S W. N. C. 528; Snyder v. Kemper, 15 lann L. Rev. 116. 252 John v. Hock, 4 Del. 109; Divire v. Weber, i W. N. C. 64. See Singer Co. v. Rice, i Chester 108. 253 Patterson v. Gallitzin B. & L. Assn., 23 Super. Ct. 54. 254 Gehring v. Lambert, i Leg. Gaz. 85. ,255 John v. Hock, 4 Del. 109; Thomas v. Loan Association, 3 Phil? 42s; Browne v. Browne, 3 S. & R. 496. 256 Imler v. Houser, 2 Del. 132. See Bower v. Sturn, i Lane. L. Rev 19. 257 Haines v. Townsend, 12 Lane. Bar 160; John v. Hock, 4 Del. 109; Orth v. Groflf, 8 Lane. L Rev. 12; March 22, P. L. 13. 2 Purd. §68, p. 21 16. 258 Taylor v. Smith, 2 Clark 318; Snyder v. Snyder, 7 Phila. 391; Frantz v. Dehart, i C. C. S. See John v. Hock, 4 Del. 109; Orth v. Groff, 4 Del. 348. 36 Common Law Practicb in Pennsylvania. fore the ten days expire.^'* Again, time does not begin to run from a secret entry of judgment by the justice.^*" And when judgment is entered by default and the justice grants a rule to show cause why it should not be opened, the defendant may ap- peal, on the discharge of the rule, though the twenty days have expired."*^ An order therefore striking off an appeal will not be disturbed when the appeal was not taken within twenty days after the judg- ment ;^°2 nor can an appeal which was taken too late be cured by a false entry that it was taken within the prescribed time sup- ported by the oral testimony of the justice f^^ nor will ignorance of a judgment from which an appeal long afterward is allowed by the justice prevent the court from striking it off.^** On the other hand an appeal will be effectual which is filed within the prescribed time, even though an execution was issued and a bill of sale has been posted.^"^ It is too late, however, after the sale and payment of the money.^*' Lastly, the placing of a case on the trial list is a waiver of the right to object to the appeal because it was not taken in time.^^' In irregular judgments if a judgment is opened by the justice the time for an appeal runs from its reaffirmance f^^ but if opened illegally the appeal must be taken within twenty days of the orig- inal judgment.^"" Again, when the proceedings are irregular the time for allowing an appeal or certiorari does not begin to run until the defendant has notice of the judgment against him.^'" And in case of neglect by the justice to furnish a transcript, an 259 Boyd V. Ward, lo C. C. 9. See Lehighton Borough v. Gombert, 7 North. 169. 260 letter v. Jetter, 19 C. C. 255. 261 Read v. Dickinson, 2 Ash. 224; Sleek v. King, 3 Pa. 211. 262 Bessen v. Gregoir, S Super. Ct. 303; Fleming Mfg. Co. v. Hector Township, I Dist. 731. 263 Horan v. Dieter, 7 Kulp 560. 264 Kutz V. Skinner, 7 Super. Ct. 346. If a taxpayer files his appeal in the quarter sessions instead of the common pleas after the expiration of the term fixed by law, the appeal will be quashed. Lehigh Township Auditors, 20 Dist. 759. 26s Worthington v. Hobensack, 8 C. C. 65. 266 Patterson v. Peironnet, 7 W. 337. 267 Order of Odd Fellows v. Reilly, 21 C. C. 552. 268 Dicks V. Carter, 21 L- I. 340. 269 Wise V. Hagerman, 3 North. 212. 270 Martin v. Wiggins, i Lane. L. Rev. 141. Op the Courts. 37 appeal will not be stricken off if not perfected within the pre- scribed time.^'^ But the proper practice is, if an appellant has a defective transcript he should file it and move for its correction ; or else, if he perfects it before filing, he must do so before the time for the appeal expires.^" In rehearings the defendant has twenty days after final judg- ment to perfect his appeal.^'* But an ineffectual attempt to ob- tain one after the lapse of twenty days does not give the right of appeal.^^* 36. Affidavit is required. (s) By the act of March 25, 1903,-^^ no appeal is allowed from the judgment of a justice of the peace or alderman unless the appel- lant or his attorney makes an affidavit at the time of taking the appeal that it is not for delay and because he believes that injus- tice has been done. The prerequisites of this act must be ob- served or an appeal cannot be entertained,^'® therefore if no af- fidavit is filed the appeal will be stricken off."' The law provides for making this by an agent,^'^ but if made by a stranger the ap- peal will be quashed.^'^ It must also be made at the time of tak- ing the appeal. It cannot be made and filed afterward nunc pro tunc.^*" Under the prior act of 1897 it was held that the affidavit was in time if filed in the common pleas at the same time as the s I Vale 921, 2 Vale 5204. 271 Gallagher v. Silkman, s Lane. L. Rev. 353; Kuyk v. Eldridge & Co., 29 C. C. 500; Leisey v. Wise, 21 Lane. L. Rev. 350. 272 Bell v. Snyder, 3 Del. 265. 273 Farra v. Kelly, 3 Del. 421 ; Kremery v. Ameisen, 9 Dist. 708. 274 Russel v. Smith, i Phila. 425. 27s P. L. 61, 2 Purd. §111, p. 2133. See Vol. II, Chap. 27, Part XXI. 276 McCrea v. Pittsburgh & Lake Erie R., 2 P. L- J. iiS; Brown v. Chandler, 3 P. L- J. 9; Neely v. Fell, 30 C. C. 470. 277 Buncoske v. Keystone Coal Co., 9 Kulp 186; Lutsey v. Stout, 11 Kulp 229; Leibson v. Bauer, 11 Kulp 230; Brown v. Chandler, 3 P. L. J- 9; Sturtevant v. Frazier, 14 Dist. 448. 278 McCassen v. Waterhouse, i Camp. 223; Cobb v. Steiger, 23 C. C. 293- 279 Union Furniture Co. v. Housenick, 11 Kulp 122. 280 McCrea v. Pittsburgh & Lake Erie R., 2 P. L. J. nS; Brown v. Chandler, 3 P. L. J. 9; Neely v. Fell, 30 C. C. 47°; Sturtevant v. Frazier, 14 Dist. 448. 38 Common Law Practice in Pennsylvania. transcript,^*^ and was permitted to be filed nunc pro tunc even though no very strong excuse was given.^*'' It has been held that an appeal did not lie from an order refusing to strike off an ap- peal on condition that a proper affidavit be filed within fifteen days/^^ though leave has been refused in cases of gross negli- gence, or when the other party would be prejudiced.^** But the court may in a proper case allow an affidavit nunc pro tunc.^'* Moreover the justice should inform the appellant of the require- ment of the act and all the needful steps to perfect his appeal. And in cases where the justice and not the appellant is responsible for the irregularity in taking the appeal the proper practice is to grant a rule to show cause why the appellant should not perfect his appeal, or in default thereof, why the appeal should not be stricken from the record.''®* The affidavit may be made before any other justice than the one who tried the cause and gave the transcript,^'^ or before a prothonotary,^** but an oral oath is not sufficient.^*^ Neither act requires that the making of the affidavit be restricted to the justice before whom the case was instituted.^*" The affidavit may be filed nunc pro tunc if the appellant was misled or misinformed by the justice ;^'^ but the affidavit need 281 Bates V. Evans, 7 Dist. 259; Myers v. Bradbeck, 12 York 134; Culbertson v. Leightner, 12 Dist. 11. 282 L,inhart v. Cunningham, 6 Dist. 788; McNair v. Rupp, 3 L,ack. L. N. 269; Clements v. Miller, 20 C. C. 270; Swift v. Shylock, 21 C. C. 307; Kile V. Hill Elgin Butter Co., 22 C. C. 417; Shimer v. Marcus, 6 North. 370; Engle v. Lehigh & Wilkes-Barre Coal Co., 10 Kulp 70; Roush v. Moyer, 10 Dist. 392. 283 Anderson v. McMichael, 6 Super. Ct. 114. 284 Miller v. Culver, 21 C. C. 489; Cinder v. Steinraetz, i Leh. Co. 14; Secher v. Daughters of America, i Leh. Co. 12. 28s Musser v. Dout, 29 C. C. 41. 286 Dunlap v. Chips, 12 Dist. 147; Altemose v. Heiney, 30 C. C. 545. 287 Eby V. Great Eastern Casualty & Ind. Co., 30 C. C. 50; Williams V. Smith, 30 C. C. 269. Contra— McCrea v. Pittsburgh & Lake Erie R., 2 P. L. J. 115. 288 Bates V. Evans, 7 Dist. 259. 289 Black V. Cochran, 21 C. C. 326 ; Neely v. Fell, 30 C. C. 470. 290 Williams v. Smith, 30 C. C. 269; Eby v. Eastern Casualty & In- demnity Co., 14 Dist. 551 ; Oliver Mfg. Co. v. Burchfield, 18 Dist. 853. 291 Altemose v. Heiney, 30 C. C. 545- See Schrack v. Herlacher & Co., 17 Dist. 594. Of thb Courts. 39 not be attached to the transcript.''''^ The affidavit under the act of 1903,"°* amending the act of 1897, must state that the appeal is not for delay and must be in writing,^^* and if the language be, "not for the purpose of securing delay or any other improper advan- tage," it will be sufficient.^'" So is the justice's certificate that the appellant solemnly swore before him that the appeal was not for delay.^^^ Lastly, the court is without jurisdiction to allow the affidavit to be filed nunc pro tunc after the appeal has been taken.^" John Smith V. Richard Jones. FORM OF AFFIDAVIT OF APPEAI,. Before Peter Bell, a Justice of the Peace for the ^ County of Northampton. No. Judgment obtained. Richard Jones, the above named defendant, being duly sworn according to law, deposes and says that the appeal taken in the above case is not for the purpose of delay, but because he verily believes that injustice has been done and that if the proceedings appealed from are not removed he will be required to pay more money than is justly due. and subscribed before me this day of A. D. 19 . Witness my hand and official seal of said court, the day and year above written. Petsr Bell (Seal.) Justice of the Peace. 37. Affidavit required in Philadelphia. In Philadelphia, the defendant, or some one acting in his be- 292 Schrack v. Herlacher & Co., 17 Dist. 594. 293 March 25, §1, P. L. 61, 2 Purd. §111, p. 2133. 294 Neely v. .Fell, 47 C. C. 470; Brown v. Chandler, 3 Justice 9; Mc- Crea v. Pittsburgh & Lake Erie R. Co., 2 Justice 115; Tiers v. Karpeless, 18 Dist. 593, 594. 29s Murphy v. Lightner, 3 Justice 243. 296 Neely v. Fell, 14 Dist. 686. 297 Sturtevant v. Frazier, 14 Dist. 44S; Neely v. Fell, 14 Dist. 686; Plum V. Wittig, 16 Dist. 801; Mosteller v. Dietrick, 16 Dist. 803. But there are some decisions to the contrary, see the opinion in the Plum case. 40 Common Law Practice in Pennsylvania. half, having knowledge of the facts of the case, must file with the justice an affidavit, setting forth that the appeal taken is not for the purpose of delay, but that, if the proceedings appealed from are not removed, he, or the defendant, will be required to pay more money, or receive less, than is justly due; which affi- davit must be attached to the justice's transcript, and filed in the court to which the appeal is taken ^'^ on a monthly return day.^°' A. B. "^ PHILADELPHIA FORM OF AFFIDAVIT. Before E. F., Magistrate of Court No. C. D. p ■ I Judgment obtained. City of Philadelphia, ss. C. D., the above named defendant, being duly (sworn or af- , firmed) according to law, deposes and says that the appeal taken in the above case is not for the purpose of delay, but that if the proceedings appealed from are not removed, he will be required to pay more money than is justly due. and subscribed before^ me, this day of , A. D. 1912. Witness my hand and official seal of said court, the day and year above written. E. F., Magistrate of Court No. (Seal.) 38. Appellant must give bail.(t) The appellant is also required to give bail absolute, in double the probable amount of costs accrued and likely to accrue, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such case against the appellant.'"" Corporations (municipal corporations excepted) must give bail absolute for the payment of the debt, t 2 Vale 5196. 298 Act March 27, 1865, P. L. 794, 2 Purd. §112, p. 2134. 299 May I, 1861, §2, P. L. S3S. 2 Purd. §113, 2134. 300 Act March 20, 184s, P. L. 188, 8 Purd. §105, p. 2125. See 2 Vol. Chap. I, §145 and Chap. 2, §45. Op the Courts. 41 interest and costs, on the affirmance of the judgment.^"^ The entry of bail should be made before the justice and not in the common pleas,^"^ and may also be done by the agent for the ap- pellant.*"^ And if an attorney should become surety though pro- hibited from thus acting by a rule of court, the appeal is not void, the proper practice is to allow the appeal to be perfected.^"* The defendant need not join with his surety in the recognizance.*"^ In trover appeals the appellant is not required to give bail in double the amount recovered before the justice, but in double the amount of costs accrued and that are likely to accrue. Money cannot be deposited as bail,*"® nor a certified check.*"^ The error, however, may be corrected before the first day of the term at which the transcript is filed.*"* A municipal corporation is not required to give a bond,*^" but other corporations must give them,*^^ and a foreign corporation must give bail absolute for debt, interest and costs.*^^ The recognizance should be in a sum certain,*^* but if "in twenty dollars or such sum as may be neces- sary to pay all costs that have or may accrue in the case in prose- cuting this appeal" is sufficient.*^* 301 Act March 15, 1847, P. L. 361, 2 Purd. §io6, p. 2126; Towhill v. Dayton Construction Co., 12 Dist. 560. Bail given on appeal from arbi- trators by a corporation is governed by act of March 20, 1845, P. L. 188, 1 Purd. §38, p. 353. See also act April 25, 1850, §12, P. L. 57i. i Purd. §39, P- 353. and 2 Vol. Chap, i, §53. 302 McMuUen v. Maxwell, i W. N. C. 39. 303 Colb V. Steiger, 9 Dist. 147. 304 Shugar V. Mumford, i Dist. 324; Short v. Rudolph, i Pitts. 50. 30s Cavence v. Butler, 6 Binn. 52. 306 Chism v. Myers, 9 Del. 291 ; Steam Heat & Power Cc v. Hutch- inson, 14 C. C. 491 ; Hughes v. Hughes, 10 Kulp 85. 307 Kohl v. Allen, 12 Dist. 94. 308 Ibid. 309 lams v. Hall, 4 Dist. 259, See acts March 20, 1845, P. L. 188, 2 Purd. §105, P- 2125, May 29, 1907, P. L. 307, 5 Purd. §7, p. 5629. 310 King v. Penn District, i Phila. 402. 311 Germantown & Perkiomen Turnpike Co. v. Naglee, 9 S. & R. 227; Benedict v. Pennsylvania R. Co., 4 Luz. L. R. 8. 312 Dreibelbis v. Lancaster Paper Mills Co., 17 Lane. L. Rev. 399; Adams v. Paper Mill Co., 10 Dist. 266. 313 Williamson v. Mitchell, i P. & W. 9; Caldwell v. Brindle, 11 Pa. 293. 314 Seidenstriker v. Buffrun, 14 Pa. 158. 42 Common Law Practice in Pennsylvania. BAIL FOR appeal. John Smith ^ Before Peter Bell, a Justice of the Peace for V. >the County of Northampton. No. Richard Jones J Judgment obtained. Now, Tuesday, March 9, 1912, defendant files his affidavit and appeals. Same time I, Samuel Weller, hold myself indebted to the plaintiff in this case, in the sum of fifty dollars for all costs that have accrued or that may accrue in this case up to the final determination thereof, and that the defendant will prosecute his appeal with effect. Samuel Weller. 39. How imperfect bail may be perfected, (u) Where the recognizance is alleged to be imperfect the proper practice is for the appellee to apply for a rule on the appellant to show cause why the appeal should not be perfected within a specified period ; on default to dismiss, a rule to strike off should not be first taken.*'° The objection to the recognizance must be made at the first opportunity; it is too late after the lapse of a year and the filing of an amended return.'^^ But when the recog- nizance is defective and the perfecting of it causes no delay, no injury to the other side, this may be done even after the appeal day.^^^ Nor will the court allow an appeal to be perfected if the appellant has not entered into a recognizance merely because of his own negligence, and not through any fraud, negligence or mis- take of the justice.^^' But if an appeal is defective caused by the u I Vale 937, 2 Vale S2or. 315 Means v. Trout, 16 S. & R. 349; Huntingdon Co. v. Jackson, 2 P. & W. 431; Adams v. Null, 5 W. & S. 363; Weidner v. Mathews, 11 Pa. 336; Koenig v. Bauer, 57 Pa. 168; Carr v. McGovem, 66 Pa. 437; Kerr v. Martin, 122 Pa. 436; Kohr v. Fake, 7 C. C. 191; Worthington v Hobensack, 8 C. C. 65; Keller v. Musselmen, 18 C. C. 407; Frederick v. Lesher, 15 Dist. 737; Rought v. Rought, 13 Dist. 566; Steam Heat & Power Co. v. Hutchinson, 3 Dist. 658; Oliver Mfg. Co. v. Burchfield, i^ Dist. 853; Brackbill v. Strasburg Township Supervisors, 16 Dist. 1009; Schrack v. Herlacher & Co., 17 Dist. 594; Rosenberg v. Segal, 19 Dist. 735; Fairchild v. Best, 6 Dist. 478. 316 Cochran v. Parker, 6 S. & R. 549; Shank v. Warfel, 14 S. & R. 205. 317 Womelsdorf v. Heifner, 104 Pa. i. 318 Guilky V. Gillingham, 3 S. & R. 93 ; Uhler v. Kelcherra, I W. N. C. 3; Souder v. Potteiger, 2 Wood. 18; Fairchild v. Best, 6 Dist. 478; Fogarty v. Manville Colliery Benevolent Association, 18 C. C. 420. Of ths Courts. 43 defendant's negligence and not by the act of the justice, no re- lief will be granted.'" But a justice who gives a rehearing under the act of March, 1810, and finds that the defendant has no ac- count to set off (as an action) will not affect the defendant's right of appeal.'^" 40. Appeals nunc pro tunc.(v) Appeals are asked and are granted or refused in another large class of cases nunc pro tunc. The granting or refusing them in such cases is a matter of sound discretion.^^^ L,et us first consider the reasons which have been deemed sufficient for granting them. In no case is an appeal allowed unless the party desiring it is en- tirely free from laches.'^^ A defendant will be permitted to file his appeal who has been misled by the mistake, negligence, or fraud of the justice or of the opposite party and swears to a good defence f^^ and moves at once to file his appeal f^* or by the action of the justice in not giving proper information concerning the requirements of an appeal,'^" or if he demand his costs when V 2 Vale 5190. 319 Cressman v. Bossing, 6 Sadler 260. 320 Farra v. Kelly, 3 Del. 421. 321 Kutz V. Skinner, 7 Super. Ct. 346; Detweiler v. Smith, 14 Montg. 61 ; Press Co. v. Boetticher, 9 Kulp 171 ; Shipton v. Alexander, 9 Kulp 378; Holazasz v. Osman, 9 Kulp 450; Crawford v. Stewart, 47 P. L. J. 123; Henderson v. Risser, 17 Lane. L. Rev. 17; Grady v. Townsend, 8 Dist. 79; Garner v. Crowl, 17 Lane. L. Rev. 113; Gable v. Bear, 10 Dist. 630; Eichenberg v. Leed, 19 Lane. L. Rev. 389. 322 Hibbs v. Stines, 8 Phila. 236 ; Nutz v. Barton, 9 Phila. 526 ; Patter- son V. Gallitzin B. & L. Association, 23 Super. Ct. 54; Biemesderfer v. Dornbach, 22 Lane. L. Rev. 213. 323 McNully V. McCarty, 4 W. N. C. 478; Schoneman v. Sternber- ger, 7 W. N. C. iii; Freeman v. Orr, 4 Kulp 222; Devine v. Boyle, 4 W. N. C. 139; Donnelly v. Purcell, i Susq. L. Chron. 47; Voorhis v. O'Mal- ley, 9 C. C. 193 ; Shrope v. Cauley, 12 C. C. 217 ; Myers v. Keen, 4 Del. 139; Newton v. Hofsomer, 5 Kulp 420; Reed v. Dickinson, 2 Ash. 224; Noble v. Honk, 16 S. & R. 421 ; Prague Flouring Mills v. Fry, 19 Dist. 783; Frantz v. Wagoner, 5 Kulp 452; Bradley v. Ritchie, 6 Montg. 36; Van Winkle v. Crumlish, 8 Montg. 112; Butterworth v. Pratt, i Chester S3; Zeiber v. Dunkle, 19 Dist. 873; John Electric Co. v. Shields, 20 Dist. 683; Grothey v. Moyer, 16 Dist. 804, citing Womelsdorf v. Heifner, 104 Pa. I ; Altemose v. Heiney, 14 Dist. 451 ; Musser v. Dout, 13 Dist. 529 ; Kile V. Hill Elgin Butter Co., 8 Dist. 543; Nickey v. Harrisburg Trust Co., 16 Dist. 859; Patterson v. Gallitzin B. & L. Assn., 23 Super. Ct. 54. 324 Pumell V. Griffiths, 4 Kulp 98. 325 Vandermark v. Borough of Nanticoke, 3 Kulp 457. 44 Common Law Practice in Pennsyi Common Pleas, No. . Term, 1912. No. CD. J 337 Mundy v. Soult, 2 Kulp 418; Hepperd v. Van Horn, 2 W. N. C. 67; Deery v. Tamony, 5 Kulp 516; Donnelly v. Purcell, 4 Del. 55; John V. Hock, 4 Del. 109. See Myers v. Keen, 4 Del. 139; Bellas v. Gonimer, 6 Kulp 439; Kichline v. Shimer, 12 C. C. 279. 338 Deery v. Tamony, 5 Kulp 516. 339 Perkins v. Ward, i Camp. 239. 340 Vargason v. Eldred, 4 C. C. 93. 341 Ward V. Letzkus, 152 Pa. 318; Brown v. Garlock, 15 Dist. 629; De Phillipi v. Stella, 20 Dist. 991. 342 Brendle v. Gorley, 13 C. C. 654. 343 O'Malley v. Mandeville, 6 Kulp 44. 344 Davis V. Rowe, 11 Lane. L. Rev. 249. 345 Wertzler v. Herchelroth, 8 Dist. 426. 346 Anderson v. Mergelkamp, 8 Del. 586. 347 Haines v. Hillary, 9 Phila. 526. 348 Dobson v. Fell, 14 W. N. C. 456. 349 Buck V. Decker, 6 Kulp 172. 350 Commonwealth v. Reiser, 147 Pa. 342. 351 Cuffles Wooden Ware Co. v. Howe, 164 Pa. 25, 46 Common Law Practice in Pennsylvania. And now (date), on motion of E. F., plaintiff's (or defend- ant's) attorney, the court grant a rule to show cause why an ap- peal unc pro tunc should not be filed in the above case. Returnable (date), lo a. m. Proceedings to stay. 41. Right of appeal is favorably regarded, (w) The court will give a liberal construction to a statute in favor of the right of appeal.^'^ If an appeal is improperly refused by a justice of the peace, the common pleas will not, on a rule to show cause, require him to allow the appeal,'"^ but will allow the entry of the appeal as though it had been regularly taken.^^* Nor is it essential to the right of appeal that the claim be set forth on the docket, it is the demand that confers the right, nevertheless facts warranting the appeal must be shown.^^® Again, when part of the plaintiff's claim is not within the jurisdiction the defendant may appeal, and on the hearing such part will be rejected.^^^ One of two defendants also may appeal notwithstanding the dissent of the other,^'^ the dissenter may, however, be severed.^^* In tres- pass also against several against whom arbitrators have given sep- arate damages some of the defendants may appeal, and the plain- tiff may appeal as to the other.^^^ And when judgment is re- covered against three joint trespassers, and only two of them appeal in the specified time, the court will allow the other to ap- peal nunc pro tunc on giving bail.'°° 42. Mandamus to compel allowance, (x) A mandamus will be granted to compel a justice to allow an appeal improperly refused.^*^ And under the acts of March, w 2 Vale 5x75. X 6 Vale 16498. 352 Devanna v. Crane, 8 Leg. & Ins. Rep. 205; Riegel v. Beatty, 15 Dist. 654; Womelsdorf v. Heifner, 104 Pa. i. 353 Shaffer v. Dohan, S C. C. 384. 354 KHnetob v. Rood, 2 Kulp 419. See Bogart v. Ink, 2 Pitts. 332; Harrison v. Harrison, i P. A. Bro. 161 . 355 Klingensmith v. Nole, 3 P. & W. 119. 356 Bunce v. Stanford, 27 Pa. 265; La Fitte v. La Fitte, 2 S. & R. 107. 357 Gallagher v. Johnson, i S. & R. 492. 358 La Fitte v. La Fitte, 2 S. & R. 107. 359 Cresswell v. Baker, i P. A. Bro. 225. 360 Edsall V. Ford, 5 C. C. 72. 361 Beach v. Evans, 7 C. C. 241. Of the Courts. 47 1868, or June, 1885, a justice will be compelled by mandamus to grant an appeal in forma pauperis though he thinks the appellant's affidavit is untrue.'^^ Again, the plaintiff is not entitled to notice of mandamus proceedings to compel a justice to give a transcript for appeal.^*^ 43. Proceedings on appeals from a justice, (y) On appeal from a justice, the proceedings are de novo, as to the statement, pleadings and evidence; but the cause of action must continue the same.'*^ It is enough, however, that the cause of action appears to be substantially the same as before the jus- tice, though somewhat differently stated.^"^ But the common pleas, on an appeal, has no jurisdiction of a set-off, beyond the jurisdiction of the justice.^*® If the justice have not jurisdiction, the common pleas has none on appeal.^*' Thus, if a justice give judgment for a certain sum and interest, in the whole above his jurisdiction, and the defendant appeal to the common pleas, al- though he there plead the general issue and go to trial, judg- ment will be arrested.'"* The statement, however, need not show that the claim was within the justice's jurisdiction ; it is enough, that it appears on the trial.'"* The court has also jurisdiction, on appeal from the judgments of justices, in landlord and tenant proceedings, under the acts of 3 April, 1830,''° and 14 December, 1863.'" y 2 Vale 5218, 5222. Z(a Walsh v. Ford, 8 Kulp 220; Commonwealth v. Greby, 10 Kulp 207. 363 Crawford v. Stewart, 47 P. L. J. 123. 364 Owen V. Shelhamer, 3 Binn. 45; Stehley v. Harp, 5 S. & R. 544; Caldwell v. Thompson, i R. 37°; Schlect v. Restein. 3 W. N. C. 95 ; Deihm v. Snell, 119 Pa. 316; Taylor v. Coal Co., 2 Kulp 236; Hastings V. Hastings, i Lane. L. Rev. ^T, Reitze v. Meadville & L. R. Co., 126 Pa. 437; Knappenberger v. Roth, 153 Pa. 614; Wade v. Hook, 11 Super. Ct. 54; Scheidy v. Huey, 18 Dist. 967. 365 Bechtol V. Cobaugh, 10 S. & R. 121; Scheidy v. Huey, 18 Dist. 967, 968. 366 Walden v. Berry, 48 Pa. 4S6- 367 Wright V. Guy, 10 S. & R. 227; Collins v. Collins, 37 Pa. 388. 368 Moore v. Wait, i Binn. 219; Laird v. McConochy, 3 S. & R. 290; Wright V. Guy, 10 S. & R. 227; Holden v. Wiggins, 3 P. & W. 469; Col- lins V. Collins, 37 Pa. 387; Baer v. Garrett, 3 Luz. L. R. 120. 369 Hackman v. Flory, 16 Pa. 196. 370 P. L. 187, 2 Purd. §38, p. 2199. 371 P. L. 1 125, 2 Purd. §33. P- 2194- 48 Common Law Practice in Pennsylvania. 44. When certiorari may be granted, (z) The constitution provides '" that the judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace and other in- ferior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done. And by the provisions of the act of 1810,'''^ no writ of certiorari issued by or out of the supreme court to any justice of the peace,^'* in any civil suit or action,^" shall be available to remove the proceedings had before a justice of the peace. The writ of certiorari may issue from the common pleas whenever a new jurisdiction is con- ferred upon magistrates, and the proceeding'' is summary.^" Otherwise, where a statute provides that the only remedy of the party aggrieved shall be by appeal.^" The defendant cannot take both an appeal and a certiorari.^^^ But the entry of an ineffectual appeal is no bar to a certiorari, within the time prescribed by law."» 45. Appeal from warrant of arrest may be treated as a certiorari. An appeal taken from a warrant of arrest will be considered as on certiorari. The evidence taken at the hearing is not part of the record and will not be reviewed;^*" the appellate court will sim- ply determine whether the affidavit is sufficient; it will only re- view the regularity of the proceedings,^^^ and will not examine z 2 Vale 5250. The subject of certiorari will be fully considered in Vol. II., Chap. 27. 372 Art. V. §10. 373 5 Sm. L. 172, 2 Purd. §70, p. 1451. 374 This does not apply to the proceedings of two justices under the landlord and tenant act. Lenox v. McCall, 3 S. & R. 95. 375 A proceeding under the stray law is within the prohibition of the act. Frick v. Patton, 2 R. 20. So is a qui tarn action to recover a pen- alty for breach of ordinances. Spicer v. Rees, 5 R. 119. Otherwise, if the suit be in the nature of a criminal prosecution. Commonwealth v. Betts, 76 Pa. 465. 376 Wilt V. Philadelphia & Lancaster Turnpike Co., i Brewst. 411. 377 Hill V. Olmstead, i W. N. C. 387. 378 Philadelphia v. Kendrick, i Brewst, 406; Ward v. Harligan, i W. N. C. 72. 379 Commonwealth v. Fiegle, 2 Phila. 215. 380 Hapgood Shoe Co. v. Saupp, 7 Super. Ct. 480; Miller v. Summers, 13 Super. Ct. 127. 381 Berger v. Small, 39 Pa. 302. Of the Courts. 49 the subsequent ones.*^^ The plaintifiF may review on certiorari the quashing of a warrant of arrest, but is restricted to the reg- ularity of the proceedings as they appear of record.'*' The opin- ion of the judge may be used to show that there was no hearing on the merits.'** 46. Time when certiorari must be taken, (aa) A certiorari does not lie to remove a justice's judgment, under the act of 1810, unless sued out within twenty days from the rendition thereof, unless it be apparent on the face of the record that there was no jurisdiction of the subject-matter,'*^ or that the summons was not served in the manner directed by statute, and there was no appearance by the defendant.'*^ If, however, the defendant had notice of the decision, he must take his cer- tiorari, within twenty days after such notice."^ The applicant for a writ of certiorari must also make affidavit that it is not for the purpose of delay, but that, in his opinion, the cause of action was not cognisable before a justice, or that the proceedings pro- posed to be removed, are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige him to pay more money, or to receive less from his opponent than is justly due.'** 47. Effect of not doing so.(bb) If the certiorari is not taken out within twenty days after the aa I Vale 875, 2 Vale 5250. bb 2 Vale 5250. 382 Hart V. Cooper, 129 Pa. 297. 383 Grieb v. Kittner, 135 Pa. 281. 384 Ibid. 385 O'Malley v. Dempsey, 3 Leg. Gaz. 225; Masters v. Turner, 30 L. I. 337; Adams v. Hill, 29 L,. I. 126; Ingham v. Sickler, 2 Luz. L- R. 105, Lacock V. White, 19 Pa. 495; Graver v. Fehr, 89 Pa. 460; Fawler v. Eddy, no Pa. 117; Mertz v. Nickel, 11 Dist 569; Harbold v. Bailey, 11 Dist. 736; American Hotel Supply Co. v. Bryant, 19 Dist. 702; Martin v Wiggins, I Lane. L. Rev. 141; Hoover v. Van Loon, 2 Del. 22; Minoque V. Ashland Borough, 14 Dist. 464; Goldman v. Teitlebaum, 10 Dist. 53; Brennan v. Miner's Mills Borough, 10 Dist. 64. 386 Paine v. Gotshall, 29 L. I. 12 ; Neff v. Gallagher, 16 C. C. 219. 387 Campbell v. Penn District, 10 L- L 46; Dailey v. Bartholomew, i Ash. 13s; Brookfield v. Hill, i Phila. 437; Scheafer v. Smith, 2 Foster S3; Harrison v. Wilkinson, i Luz. L- R. 89; Hillside Coal & Iron Co. v. Featherman, i Kulp 314 ; Shirtzer v. Gonder, 10 Lane. Bar 51 ; Streuber V. McFayden, 14 Dist. 242; McGovern v. McTague, 13 Lane. L. Rev. ii9- 388 March 20, 1810, 5 Sm. L- 171, 2 Purd. §72, p. 1458. 50 Common Law Practice in Pennsylvania. defendant first learns of the judgment, it will be affirmed,*^* or the writ may be quashed.'"" It will also be quashed if taken out by one who is not a party to the suit, and especially after the statutory period has passed.'"'^ But the twenty day rule does not apply to cases wherein the justice had no jurisdiction ;'°^ nor to cases of illegal service by summons in which the defendant did not appear at the hearing;'"' nor when the justice's record fails in some particular to show affirmative jurisdiction.'"* A certio- rari, however, issued more than twenty days after the judgment entered by default without proof of the plaintiff's claim will be sustained.'"" Again, if the defendant has notice within twenty days of the rendition of the judgment and actually takes a transcript for the purpose of entering an appeal, he forfeits his right to take a certiorari after the time has elapsed by reason of his laches.'"* PRECIPE and AEEIDAVIT FOR CERTIORARI TO A MAGISTRATE OR JUSTICE. . A. B. ^ V. > Common Pleas, 'Term, 191 2. No. CD. J Sir: Issue writ of certiorari in the above case to , 389 Streuber v. McFayden, 14 Dist. 242; Brookfield v. Hill, i Phila. 439; Dailey v. Bartholomew, i Ash. 135; Hartman v. Kottcamp, 2 York 215. See Heft v. Hammill, i Phila. 394. 390 Naille v. Keogy, 2 York 43. 391 Fenner v. McDaid, 10 C. C. 262. 392 Haggarty v. Seitzsinger, i Kulp 109; Marvel v. Jones, 7 Kulp S08; Torbert v. Yocum, 3 Foster 71; Simpson v. Musser (No. 2), 7 York 74; McGovern v. McTague, 13 Lane. Bar 119; Nalen v. Burke, 12 C. C. 490; Creveling v. Kindig, 2 Del. 257. 393 Springfield Fire Ins. Co. v. Pyle, 4 Kulp 316; Neal v. Duncan, 9 Montg. 93; Crosscups v. Bissell, 4 W. N. C. 560. 394 Martin v. Wiggins, i Lane. L. Rev. 141; Hoover v. Nan Loon, 2 Del. 141. 395 Montgomery v. Souder, 8 Lane. L. Rev. 185; Worst v. Souder, 8 Lane. L. Rev. 187. See Hildebrand v. Bowman, 12 Lane. Bar 51. 396 Shirtzer v. Gonder, 10 Lane. Bar 51; Hillside C. & I. Co. v. Featherman, i Kulp 314; Harrison v. Wilkinson, i Kulp 89; Dailey v. Bartholomew, I Ash. 135; Scheafer v. Smith, 2 Foster 53. See 2 Vale 5253 for more eases. Of the Courts. 51 Esq., Magistrate of Court No. , or (justice of the peace, as the case may be). Returnable sec. leg. To , Prothonotary of Common Pleas. Attorney for Defendant. (Date.) City and County of , ss. , The defendant in the above case and applicant for the above writ of certiorari, having been duly sworn according to law, deposes and says that said writ is not for the purpose of delay, but that in the defendant's opinion the cause of action was not congnizable before a magistrate (or that the proceedings proposed to be removed are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige the said applicant to pay more money than is justly due). Sworn to and subscribed before me, ) (Signature.) } this day of , 1890. FORM OF CERTIORARI TO A MAGISTRATE OR JUSTICE. City and County of , ss. The Commonwealth of Pennsylvania to , Magis- trate of Court No. (or justice of the peace), greeting: We being willing, for certain causes, to be certified of a certain plea, etc., between plaintiff , and defendant , before you depending, do command you, that .'ic plea aforesaid, with all things touching tne same, before our judges of our Court of Common Pleas, No. , at Philadelphia, there to be held the Monday of next, so full and entire as before you they now remain, you certify and send, together with this writ: that we may further cause to be doi.e thereupon that which of right and according to the laws and Constitution of this Commonwealth ought. Witness the Honorable , President of our said court, at Philadelphia, the day of , in the year of our Lord one thousand eight hundred and eighty- Prothonotary. RETURN TO CERTIORARI. To the Honorable the Judges within named : The plea within mentioned, with all .things touching the 52 Common Law Practice in Pennsylvania. same so full and entire as before me they remain, I hereby re- spectfully certify and send, as within I am commanded, to- gether with this writ. Magistrate of Court No. (or Justice.) 48. Certiorari in landlord and tenant cases, (cc) A certiorari lies to remove the proceedings in landlord and ten- ant cases ; and, in Philadelphia, such writ is a supersedeas, if sued out within ten days after judgment, the applicant making oath that it is not for the purpose of delay, but that the proceedings are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due; and also giving security for the payment of all costs that have ac- crued or may accrue, and of the rent that has already, or may become due, up to the time of the final determination of said certiorari, in the event of the same being determined against him.'" The bail is liable for the rent, until the final determina- tion of the case, or the plaintiff obtains possession.^"' In other parts of the commonwealth, a certiorari in a landlord and tenant case, does not operate as a supersedeas.'"* 49. Equity jurisdiction. The courts of common pleas are likewise invested with the jurisdiction of a court of chancery, by bill, in many cases specially provided for by statute. But a consideration of the jurisdiction of courts of equity, is so obviously foreign to a treatise on com- mon law practice, that it will not be treated of at large in this work. The courts are also, by many statutes, given jurisdiction, by petition, of special proceedings properly cognisable in equity; these are for the most part, also foreign to our design. Among them may be enumerated cases of divorce, of lunacy, and of as- signments in trust for creditors ; all of which belong to the equity cc 5 Vale 15073. 397 Act April 26, i8ss, §2, P. L. 304, 2 Purd. §45, p. 2203. A certiorari is not a supersedeas of a writ of possession issued under the act of 1772, notwithstanding this act; such case is removable by the common law writ of certiorari. DeCoursey v. Guarantee Trust & Safe Deposit Co., 81 Pa. 217. And the act does not apply to proceedings by a purchaser at sheriff's sale, under the act of 1836. Jackson v. Gleason, 6 Phila. 307. 398 Clapp V. Senneff, 7 Phila. 214. 399 Duddy v. Hill, 3 Leg. & Ins. Rep. 59. Of the Courts. 53 side of the court. But, as the courts of Pennsylvania, before the conferring of equity jurisdiction by bill, administered the prin- ciples of equity by means of common law forms and proceedings, it will be proper to consider this branch of their jurisdiction; which will be done in the next section. It has been frequently de- cided, that the statutes conferring chancery powers upon the courts, do not oust the equitable jurisdiction previously exercised under the forms of the common law.*"" 4CW Aycinena v. Peries, 6 W. & S. 243 ; Biddle v. Moore, 3 Pa. 161 ; Church V. Ruland, 64 Pa. 433. CHAPTER II. Administration of Equity Under the Forms of Common Law. Administration of Equity under the Forms of Common Law. c. Set-off. 11. Equitable pleas. 12. Conditional verdict. 13. Verdict may be moulded. 14. Lien of judgment. 15. Opening of a judgment. 16. Audita querela. 17. Subrogation. a. When it is allowed. b. What is taken by it. c. When not allowed. d. In partnership matters. e. Sureties. f. Bail. 1. Equitable actions. 2. Assumpsit. a. In what cases it will lie. b. When it will not lie. 3. Covenant. 4. Replevin. 5. Ejectment. 6. Partition. 7. Excuse for profert. 8. Deceased joint debtors. 9. Equitable plaintiffs. 10. Equitable defences. a. Evidence. b. Payment. I. Equitable actions. Equity is a part of the law of Pennsylvania.^ But in conse- quence of the want of appropriate equitable remedies, our su- preme court and courts of common pleas exercised, from the beginning, the power of giving relief and administering equity through the ordinary common-law remedies and forms ; ^ that is, 1 Pollard V. Shaaffer, i Dall. 210; Commonwealth v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47, 53; Jordan v. Cooper, 3 S. & R. 564; Funk v. Voneida, 11 S. & R. 109; Hawthorn v. Bronson, 16 S. & R. 269; Thompson's Appeal, 107 Pa. SS9, 574; Hauberger v. Root, S Pa. 108; Church V. Ruland, 64 Pa. 432. 2 Mathews v. Stephenson, 6 Pa. 498; Rice v. Findlay Company, 19 Dist. 601. In Wharton v. Morris, i Dall. 125-6, McKean, C. J., remarked, that "the want of a court with equitable powers, like those of the chancery in England, had long been felt in Pennsylvania. The institution of such a court, he observed, had once been agitated here; but the houses of assembly, antcedent to the revolution, successfully opposed it; because they were apprehensive of increasing by that means, the power and in- fluence of the governor, who claimed it, as a right, to be chancellor. For this reason, many inconveniences have been suffered. No adequate rem- edy is provided for a breach of trust; no relief can be obtained in cases 54 Administration oif Equity. 55 through the medium of the usual actions; the pleadings approp- riate to each; conditional verdicts; special judgments; and the final process adequate to obtain and enforce the fruit of them. The common-law remedies that have long been made the vehicles of equitable rights in this state, are the actions of assumpsit, debt, covenant, replevin, ejectment and partition. Perhaps, indeed, all the personal actions may be here called equitable remedies ; ^ as, from the right of the defendant to plead an equitable defence to any one of them, the reply to such a defence may take the same complexion, and thus, at last, the action may result in procuring for the plaintiff the fruits of a merely equitable right.* The mode of administering equitable relief, through the medium of common-law proceedings, is well illustrated by Justice Tod, in Bixler v. Kunkle.^ The learned judge there said — "To the argument that this demand is founded on mere equity, and can- not be enforced by any form of action of the common law, I of covenants with a penalty, &c. This defect of jurisdiction has neces- sarily obliged the court, upon such occasions, to refer the question to the jury, under an equitable and conscientious interpretation of the agree- ment of the parties." And see Barnes v. Hart, i Yeates 226, 228; Seitzinger v. Ridgway, 9 W. 498. 3 The action of trespass for mesne profits is, with us, an equitable one. Heckart v. Zerbe, 6 W. 260 ; Ewalt v. Gray, 6 W. 427 ; Means v. Presby- terian Church, 3 Pa. 97; Zimmerman v. Eshbach, 15 Pa. 417; Kille v. Ege, 82 Pa. 102 ; Ege v. Kille, 84 Pa. 333. 4 Schrader v. Decker, 9 Pa. 16; Knox v. Flack, 22 Pa. 339; Roberts V. Williams, 5 Wh. 184-5. Equitable relief has been invariably granted, when it could be done consistently with the forms known -to the common law. Martzell v. Stauffer, 3 P. & W. 401 ; Cope v. Smith, 8 S. & R. iiS- 5 17 S. & R. 308. In Silvis v. Clous, 6 Dist. 614, 615, Judge Endlich said: "It is true that, in this State, the distinction between equitable and legal remedies is weakened by the rule that equity is administered in common law actions by the fact that certain matters are concurrently cognizable at law and in equity, and possibly by the consideration that, even in the method and form of procedure, the new equity rules assimilate causes in equity and at law. Yet some of the fundamental principles dif- ferentiating the two jurisdictions remain unaffected, not so much in re- spect of the subjects to which they apply, as in respect of the degree of proof required to establish an allegation denied (see Rowley's Appeal, IIS Pa. 150; Huston v. Harrison, 168 Pa. 136) ; the right of the plaintiff, upon the facts proven, to the relief sought, as absolute or merely ex gratia (see Richard's Appeal, 57 Pa. 105; Huckenstine's Appeal, 70 Pa. 102; Walters v. McElroy, 151 Pa. 549); the effect of the judgment or decree (see Commonwealth v. Bridge Co., 176 Pa. 394) ; the incident of costs (see Gyger's Appeal, 62 Pa. 73), and the like." S6 Common Law Practice in Pennsylvania. would say, that ever since the time of Kennedy v. Fury,^ in which a cestui que trust maintained an ejectment in his own name/ and, I believe, long before, mere equitable rights have been every day recovered in our courts. It seems to me, that the rules of equity have, by immemorial usage, become rules of property in our state, and cannot, I apprehend, be now departed from without legisla- tive authority. Cases need not be cited, to show how rights purely equitable have been sued for with success, in the forms of action known only to the common law, and how relief has in- variably been granted, whenever it could be granted in any way consistent with these forms; generally, by the courts, with the aid of a jury — often, without. Not only have conditional judg- ments repeatedly been given, but, in the Lessee of Mathers v. Akewright,' the court, on a general verdict for the plaintiff, and judgment thereon, ordered a stay of execution, until the defend- ant should be secured in his title to another piece of land, accord- ing to an article of agreement. In the case of Morris's Executors V. McConaughy's Executors,' the court, on motion, directed a contribution among the several holders of land bound by the same mortgage." 2. Assumpsit, (a) The action of assumpsit, though in form an action on a promise, gives effect to the same principles that are administered through a I Vale 1710. 6 I Dall. 72. And see Campbell v. Galbreath, I W. 78; Power v. HoUman, 2 W. 221. 7 A cestui que trust, if he be entitled to the possession, for the pur- pose of enabling him to enjoy the trust-estate in the manner that was in- tended, may maintain ejectment for it, in his own name, either against the trustee himself, or any other person. It is only where it is proper that the trustee should have the possession, for the purpose of enabling him to execute the trust, in the manner prescribed by the deed declaring it, that he can resist the claim of the cestui que trust to it. Presbyterian Congre- gation V. Johnston, i W. & S. 56; School Directors v. Dunkleberger, 6 Pa. 29; Caldwell v. Lowden, 3 Brewst. 63. But, if ejectment be brought in the name of the trustee, a wrongdoer cannot set up the title of the cestui que trust, to defeat a recovery. Hunt v. Crawford, 3 P. & W. 426; Houston V. Wickersham, 8 W. 519; McHenry v. McCall, 10 W. 456; Lee V. Parker, S W. 342 ; Heath v. Knap, I Pa. 482 ; Dull v. Heath, 7 Pa. 85 ; Lair V. Hunsicker, 28 Pa. 115; Townsend v. Roy, 9 Phila. 120. 8 2 Binn. 93. And see McCall v. Lennox, 9 S. & R. 315. 9 2 Dall. 189. Administration of Equity. 57 a bill in equity ; and its sufficiency as a remedy has almost entirely withdrawn parol contracts from the jurisdiction of chancery.^" It is an equitable action, in which a plaintiff can recover only where, in equity and good conscience, he ought to recover.^^ With us, it is frequently used as a substitute for a bill in equity ; and in such cases, it is to be decided on equitable principles/^ Thus, we permit incorporated religious societies to sue on a contract made with them in their associate capacity, and for the legitimate purposes of their association, even though there be no persons named or described in the contract, as trustees or commit- tee-men on behalf of the society, and if the English common-law forms are insufficient for such cases, we admit of the infusion into our law of the plain equity principle, that allows a committee of a voluntary society to sue and be sued, as representatives of the whole. In the case of Chambers v. Calhoun,^^ the congre- gation had been formed, and the contract of subscription was for the purpose of erecting a new church, and it contained a promise to pay to the building committee, which had not then been ap- pointed, and when appointed, the promissor was one of them; yet the action against him, in the name of his fellows, on behalf of the congregation, was sustained.^* The action of assumpsit for money had and received has, in Pennsylvania, been made an ordinary vehicle of equitable juris- diction. Though there may be some positions in Moses v. Mac- ferlan,^^ advanced by Lord Mansfield, which his successors have cancelled from it, the leading doctrine of the nature of this action has never been questioned. The great objection to some of his positions is, that they have been laid down too broadly, when he says, that a court of common law may sustain this action wher- ever one man has money which another ought to have, or wher- ever one man has an equitable right to the money, he also has a 10 Menges v. Oyster, 4 W. & S. 23. "It is nevertheless equally true that it cannot be maintained wherever a bill in chancery will lie." Brown V. German- Am. Title & Ins. Co., 174 Pa. 443> 447; Finney v. Finney, 16 Pa. 380. 11 Insurance Bank of Columbus v. Bank of the United States, 4 Clark 125. 12 Gochenauer v. Cooper, 8 S. & R. i99- And see Work v. Work, 14 Pa. 318. 13 18 Pa. 13. 14 Phipps V. Jones, 20 Pa. 263. 15 2 Burr. 1005. And see Neat v. Harding, 6 Exch. 349. S8 Common Law Practice in Pennsylvania. legal action. Since courts of common law cannot administer equity in the same way courts of equity can, we have adopted the most liberal principles in this action; and because we have no court of chancery, sustained the action, where one man unjustly holds the property of another. In every case, the tort may be waived; where the party has received your money, trespass or trover may be converted into this action. Where the defendant has turned another's article into money, or there is reasonable evi- dence that he has, as in the case of the masquerade ticket, the tort may be waived. But when you do this, you ratify the conver- sion; you adopt his act, and can recover nothing more than he has received. In England, not even interest ; but here, the money received, with interest, may be recovered. A man may disaffirm the action ab initio, by reason of the fraud, and bring his special action, and recover his actual damages ; or affirm it, and demand his money ; he may make his election.^* a. In what cases it will lie.(b) The action of assumpsit is in the nature of an equitable pro- ceeding and may be brought instead of a bill in equity, where the ends of justice can thereby be accomplished.^^ And when an action of assumpsit is thus brought as a substitute for a bill in equity the chancery rule concerning parties must be adopted.^* And in such a proceeding, says Justice Williams in a lummous opinion,^^ the chancellor may send an issue to a jury, and "if the verdict does not satisfy his conscience, he may set it aside as often as he pleases, or make his decree in utter disregard of it." ^° In what cases therefore will the action lie ? First may be men- tioned it will lie against a trustee or person who has received b I Vale 1710, 1716. 16 Duncan, J., in Lee v. Gibbons, 14 S. & R. iii. And see Finney v. McMahon, i Yeates 248; Miller v. Ord, 2 Binn. 382; Mathers v. Pearson, 13 S. & R. 258; Rees v. Ruth, 13 S. & R. 434; Bixler v. Kunkle, 17 S. & R. 298; Irvine v. Bull, 4 W. 287; Mussi v. Lorain, 2 Bro. 59; United States Bank v. Macalester, 9 Pa. 479; McCullough v. McCuUough, 14 Pa. 295 ; Work v. Work, 14 Pa. 318 ; Loan Co. v. Elliott's Executors, 15 Pa. 227; Stoner v. Zimmerman, 21 Pa. 394; Reese v. Bank of Montgomery County, 31 Pa. 78. 17 Commonwealth v. Philadelphia County, 157 Pa. 531. 18 Mathews v. Stephenson, 6 Pa. 496. 19 Reno V. Moss, 120 Pa. 49, 66. 20 Brawdy v. Brawdy, 7 Pa. 157. Administration of Equity. 59 money belonging to the plaintiff ; ^^ to enforce payment of money due a decendent ; ^^ against a defendant to whom money has been paid for investment to compel the performance of the trust ; ^^ against an attorney who was employed to buy land, but who buys in his own name and refuses to hold it for the client's benefit or to account ; ^^ against the principal contractor by a sub-contractor to recover money paid to his use.^^ Such an action will also lie for the breach of a contract to convey a title to land that may be proved by parol. ^* Likewise a contract made by an agent under a parol authority, though insufficient to pass the estate, will support an action for damages if broken.^^ The nature of the duty to be performed by the agent determines the form of action against him on the part of the principal. If the trust be to pay the principal directly then assumpsit is the proper action; but if it be one of outlay, requiring an exhibit of the sums expended, assumpsit will not lie until the balance due has been ascertained in an action of account-render.^^ In accounts a bill in equity will lie if it is the more convenient remedy even though assumpsit would also lie,^' but when the ac- counts are not mutual and no discovery is sought, assumpsit is the proper remedy.^" It is the proper remedy in a great variety of partnership transactions involving a single enterprise or for the recovery of an ascertained balance. Thus it is a proper remedy to recover a share of the profits of a single joint transaction ; ^^ or by one partner against another for an item in a series of trans- actions which have been settled and a balance struck and the item 21 Lee V. Gibbons, 14 S. & R. 105; Fleming v. Alter, 7 S. & R. 295; Haldane v. Fisher, i Yeates 121. 22 Fidelity Trust Co. v. Weitzel, 152 Pa. 498. 23 Bixler v. Kunkle, 17 S. & R. 298; Martzell v. Stauflfer, 3 P- & W. 398. 24 Smith V. Stevenson, 47 P. L. J. 231. 25 Horback v. Reeside, 6 W. 47. 26 Clyde V. Clyde, i Yeates 92; Bell v. Andrews, 4 Dall. 152; Sedain V. ShafTer, s W. & S. 529; Meason v. Kaine, 63 Pa. 335 and ()^ Pa. 126; Thompson v. Sheplar, 72 Pa. 160. 27 Ewing V. Tees, i Binn. 450. 28 Reeside v. Reeside, 49 Pa. 322, see also Mocomber v. Proctor, 22 Super. Ct. 483; Burton v. Trainer, 27 Super. Ct. 626, affg. 9 Del. 309. 29 Bierbower's Appeal, 107 Pa. 14; Holland v. Hallahan, 211 Pa. 223. 30 Paton V. Clark, 156 Pa. 49. 3r Meason v. Kaine, 63 Pa. 535; Finlay v. Stewart, 56 Pa. 183; Kutz V. Dreibelbis, 126 Pa. 335; Johnson v. Emmens, 119 Pa. 356; Canfield v. 6o Common Law Practice in Pennsylvania. has been omitted by mistake ; ^^ by one partner against his co- partners for labor done when there is an express agreement to compensate and the settlement of partnership accounts are not in- volved ; '^ against a partner for profits arising from a contract to procure options for lands ; " against a partner by the other for money paid by him for debts after his withdrawal ; ^^ against the custodian of partnership profits by a partner ; ^^ against the con- tinuing partner by the retiring partner for his interest and share of profits in accordance with an agreement made between them.^' Other cases also may be mentioned. Thus a broker may main- tain assumpsit against another who wrongfully withholds money as commissions on the sale of stock included in his account ; ^* likewise a co-tenant may maintain assumpsit for his share of the profits and rent ; ^^ also for breach of an agreement between two firms that one should take a contract and each should do portions of the work and share the profits ; *" and also for the balance of an account in which the only work for a jury is to add to its debit and credit sides and strike the balance. In such a case it is not neces- sary to bring an account-render or bill in equity.*^ It is said, however, that to sustain assumpsit for a balance struck in a part- nership matter, the settlement must show the liability of the in- dividual partners, each to the other, and not merely a liability to the firm.^^ Johnson, 144 Pa. 61; Howell v. Kelby, 149 Pa. 473; Brubaker v. Robin- son, 3 P. & W. 29s; Cleveland v. Farrar, 4 Brewst. 27; Galbreath v. Moore, 2 W. 86; Wright v. Cumpsty, 41 Pa. 102. 32 Van Amringe v. EUmaker, 4 Pa. 281. 33 Draucker v. Arick, 161 Pa. 357; Beale v. Jennings, 129 Pa. 619. But see Schnatterly v. Crow, 2 Lane. L. Rev. 127. 34 Howard v. Kelly, 149 Pa. 473. 35 Shamburg v. Abbott, 112 Pa. 6. 36 Steelman v. Doughty, S W. N. C. 166. 37 Farrell v. Young, 26 Super. Ct. 135. 38 Wagner v. Peterson, 83 Pa. 238. 39 Winton Coal Co. v. Pancoast Coal Co., 170 Pa. 437; Enterprise Oil Co. V. National Transit Co., 172 Pa. 421. But see Irvine v. Hanlin, 10 S. & R. 219; Steffen v. Hartzell, 5 Wh. 448. 40 Canfield v. Johnson, 144 Pa. 61. 41 Richey v. Hathaway, 149 Pa. 207. 42 Ferguson v. Wright, 61 Pa. 258, affg. 7 Phila. 92 ; Andrews v. Allen, 9 S. & R. 241. Administration of Equity. 6i b. When it will not lie.(c) Let us next consider when assumpsit will not lie in lieu of a bill in equity. First of all in cases for money paid by the plaintiff which would be inequitable for the defendant to pay,^^ or where the plaintiff has failed to do equity ; " nor can the specific per- formance of an unexecuted parol contract for the sale of land be enforced by action for the purchase money and a conditional verdict.*^ Likewise when land is sold by the acre, equity will relieve against a deficiency and the vendee can recover in assumpsit the excess of purchase money paid by mistake.*^ And if the pro- ceeds of a sale are by agreement to be divided equally between all the parties, and it should appear that all did not contribute equally to the purchase money, one cannot maintain assumpsit for his share of the proceeds ; " nor does assumpsit lie by one partner against the partnership for goods furnished ; ^® nor for work done under an agreement ; *' nor can assumpsit be maintained by a stockholder against a banking corporation for his proportion of the capital stock distributed by the directors to other stockholders on liquidation, the remedy must be equity.^" So in matters of account, assumpsit will not lie by one partner against his co-partners for the recovery of profits in a series of transactions, unless an account has been rendered and a balance struck, or there has been an express promise to pay ; ^^ nor against a partner for his contribution to the firm debts which have been paid by his co-partner. ^^ And when one partner has paid debts for which both are liable, he cannot set off such indebtedness in an action of assumpsit brought against him by his partner to re- c I Vale 1710-1718. 43 Barr v. Craig, 2 Dall. 151 ; Pursel v. Ellis, 5 W. & S. 525. 44 Moffat V. Israel, 4 Yeates 489, but see Babcock v. Case, 61 Pa. 427 45 Irvine v. Bull, 4 W. 287. 46 Hoover v. Senseman, 3 Cent. 540. 47 Burton v. Trainer, 27 Super. Ct. 626, affg. 9 Del. 309. 48 Miller v. Knauff, 2 Clark 11. 49 Schnatterly v. Crow, 2 Lane. L. Rev. 127, but see Draucker v. Areck, 161 Pa. 357. 50 Stayman v. Carlisle Bank, 2 Am. L,. J. 35. 51 Leidy v. Messinger, 71 Pa. 177. 52 Murray v. Herrick, 171 Pa. 21 ; Holbert v. Herrick, 171 Pa. 25. 62 Common Law Practice in PgNNSYLVANiA. cover a loan made prior to the formation of the partnership.'^ indeed, there can be no set-off based on a partnership account, unless there has been a settlement between the partners and a balance has been struck.^* In cases between tenants in common an action will not lie for the use and occupation of the common property unless there was an express promise to pay rent therefor.'^ But when there was su&h a promise it is no defense that the use and occupation was not beneficial.'" Nor does assumpsit lie by one tenant in com- mon against another who has received the profits of the land under a claim of right, the remedy is by account-render ; "^ nor by one tenant against another for work done on the common prop- erty.'' But when the profits have been received by one of the tenants and the expenditures have been made by him, account is the more convenient and proper remedy.'" Whether assumpsit will lie by one tenant in common against another for the value of crops raised by the latter is perhaps an open question.^" 3. Covenant, (d) The action of covenant was formerly used as a means of enforcing a purely equitable right.*"* Thus, where, by articles of agreement for the sale of land, a deed was to have been de- livered at a certain time, and by a subsequent parol agreement, the vendee agreed to receive the deed at a later period, and ac- cepted it accordingly ; it was held, that the vendor, in covenant for non-payment of the purchase-money, might declare according to the circumstances of the case, by setting forth, in the first place, the covenants according to the articles of agreement, and then showing the alterations which had been made by consent of the d I Vale 1710-1718. 53 Riley v. Eigo, i Super. Ct. 139; Roberts v. Filler, 13 Pa. 265; Ben- nett V. Johnson, 9 Pa. 336; Klase v. Bright, 71 Pa. 186. 54 Ibid. 55 Norris v. Gould, 15 W. N. C. 187; Kline v. Jacobs, 68 Pa. 57; Gillis V. McKinney, 6 W. & S. 78; Luck v. Luck, 113 Pa. 256; Irvine v. Hanlin, 10 S. & R. 219. 56 Kline v. Jacobs, 68 Pa. 57, overruling Borrell v. Borrell, 33 Pa. 492. 57 Irvine v. Hanlin, 10 S. & R. 219, but see Winton Coal Co. v. Pan- coast Coal Co., 170 Pa. 437. 58 Thompson v. Newton, 2 C. C. 362. 59 Steffen v. Hartzell, 5 Wh. 448. 60 Luck V. Luck, 113 Pa. 526. 60a Since 1887 this remedy has been absorbed by the action in assumpsit. Administration of Equity. 63 parties.*^ The plaintiff must, in all such cases, set forth the special circumstances on which his equity is supposed to arise.*^ So, in covenant, where there has been a mistake in drawing the articles upon which the action is founded, the plaintiff may de- clare upon the amended articles, with proper averments, showing the mistake in the original ; for, in such case, the articles still re- main, notwithstanding the error, in full operation between the parties.*^ But, in covenant upon written articles, the plaintiff is not at liberty to prove, by parol evidence, a different agreement from that on which he declares."* Covenant has been employed as a substitute for a bill for speci- fic performance in an action by the vendor on an executory con- tract of sale,"° and has been governed by the same equitable prin- ciples.'" In thus suing in covenant the vendor should frame his statement on the special circumstances of the case."' Of course he cannot recover without showing a good title if he has agreed to give one ; "^ he must also tender the deed."® 4. Replevin. The action of replevin, from the liberal extension of it by our 61 Jordan v. Cooper, 3 S. & R. 578; Bellas v. Hays, S S. & R. 441-2; Reichart v. Beidleman, 17 S. & R. 43. And see Kershaw v. Supplee, i R. 131-4- 62 Barndollar v. Tate, i S. & R. 160; Clark v. Partridge, 2 Pa. 13; Partridge v. Clarke, 4 Pa. 166; Renshaw v. Gans, 7 Pa. 118; Butcher v. Metts, I Miles 153. A plaintiff must lay such a contract as will support his action; and he must, in such cases, lay such a contract as a chan- cellor would execute. Irvine v. Bull, 4 W. 289. Thus, if the statute of frauds would otherwise be a bar, there must be an averment of circum- stances to take the contract out of the statute. Walter v. Walter, i Wh. 301. And so, a vendor, who goes for specific performance, must indicate it by his declaration, in stead of laying a cause of action that would otherwise entitle him to damages. Huber v. Burke, 11 S. & R. 238. 63 Gower v. Sterner, 2 Wh. 75, 79. An action of covenant upon articles of agreement for the sale of land, to recover the purchase-money, is, in effect, an equitable proceeding to compel specific performance of the contract, and is governed by the same equitable principles. Nicol v. Carr, 35 Pa. 381. 64 Barndollar v. Tate, I S. & R. 160; Lehigh Coal & Nay. Co. v. Harlan, 27 Pa. 442. 65 Herzberg v. Irwin, 92 Pa. 48. 66 Nicol V. Carr, 35 Pa. 381. 67 Jordan v. Cooper, 3 S. & R. 564. 68 Elliott v. Tyler, 5 Cent. 543; Herzberg v. Irwin, 92 Pa. 48. 69 Mervin A. McFadden, 2 W. 132; Love v. Jones, 4 W. 465; Hamilton v. Grossman, 130 Pa. 320. 64 Common Law Practice in Pennsylvania. courts, has become a very effective vehicle of an equitable right ; '"' it may be employed both to prevent and counteract fraud, and to compel the specific execution of a contract relating to personal property. It is applicable to every case in which goods and chat- tels, in the possession of one person, are claimed by another ; and no distinction is made between those instances in which there has been a tortious deprivation of the possession, and others, in which the dispute is only as to the title or ownership. By means of this action, not only may family pictures, for which an agreement has been made, be obtained, but also merchandise, when the particular bale can be distinguished.''^ Nor is the plaintiff restricted to the continuance of the possession in the defendant; he may follow the property through successive transfers, and as the doctrine of market overt does not hold in Pennsylvania, he may replevy it, wherever found.^^ The owner of property may follow and re- claim it, wherever found, until arrested by the countervailing equity of a bona fide purchaser for value.'^ 5. Ejectment, (e) The equitable action of ejectment forms, in this state, an im- portant branch of the law. Through the liberality and ingenuity of the courts it has become the most important and universal mode of enforcing the equity of a plaintiff relating to land.^* "At e 3 Vale 6873, 6934, 6999, 7010. 70 See Coomalt v. Stanley, 3 Clark 389-93. 71 It has even been held, that replevin will lie for a quantity of oil taken from one tank, and placed in another, though mixed with other sub- stances. Wilkinson v. Stewart, 85 Pa. 255. 72 See Weaver v. Lawrence, i Dall. 157; Shearick v. Huber, 6 Binn. 3; Woods V. Nixon, Add. 134; Stoughton v. Rappalo, 3 S. & R. 562. It is well settled, as a general principle, that in Pennsylvania replevin lies wherever one man claims goods in the possession of another, whether the claimant has ever had possession, or not, and whether his property in the goods be absolute, or qualified, provided he has the right of possession. Harlan v. Harlan, 15 Pa. 513; Boyle v. Rankin, 22 Pa. 170; Young v. Kimball, 23 Pa. 193; Miller v. Warden, in Pa 300. 73 Garrard v. Pittsburgh & Connelsville Railroad Co., 29 Pa. 158; Wilkinson v. Stewart, 85 Pa. 260. 74 See Hawthorn v. Bronson, 16 S. & R. 278; Dickey v. McCullough, 2 W. & S. 88, 96, 100 ; Warden v. Eichbaum, 14 Pa. 127. In Reno v. Moss, 120 Pa. 49, 65, Williams, J., said: "In Pennsylvania an action of ejectment Administration of Equity. 65 a very early date," says Justice Heydrick/^ "resort was had in Pennsylvania to the action of ejectment as a remedy for the en- forcement of equitable rights in real estate. This was a necessity, growing out of the want of a court of chancery, or the possession by the common law courts of such equitable jurisdiction as has since been conferred on them. But, although it was broadly de- clared in Peebles v. Reading,'" that wherever chancery would execute a trust or decree or conveyance, the courts of the state, by the instrumentality of a jury, would direct a recovery in eject- ment, it was not until the announcement of the judgment in Seitz- inger v. Ridgway," that the true character of the action when employed as an equitable remedy was fully understood, that one verdict and judgment in an equitable ejectment was conclusive as to the title and that such judgment has all the conclusiveness of a decree in chancery as to every other matter litigated. This is a legitimate result of the substitution of the common law action for a bill in equity." It is therefore a remedy which has been substituted for the bill in equity; though it is subject to all those considerations, by which a claim to have the land itself may be defeated. The rule is, that wherever equity will presume a trust to have arisen, and will compel its execution, or will enforce articles of agreement, our courts will, through the application of this remedy, administer the same relief.'* Thus, the vendee of lands, by articles of agreement, who has complied with his part of the contract, as, by payment or tender on an equitable title to land is in effect a bill for specific performance, and therefore governed by the general principles of equity. * * * The judge sets as a chancellor and it is his duty to view and weigh facts for himself, and to withdraw the evidence from the jury when it is not such as ought in equity and good conscience to induce a decree of specific execution." 75 German-American Title & Trust Co. v. Shallcross, 147 Pa. 485, 494; Bennethum v. Bowers, 141 Pa. 105. 76 8 S. & R. 484- 77 9 W. 496- 78 Presbyterian Congregation v. Johnston, i W. & S. 41, 56; Rife v. Geyer, 59 Pa. 396. If an action of ejectment be brought to enforce the execution of a trust, there can be no recovery, without an offer to re- imburse the trustee, the moneys whicli he has expended; but if a recovery be sought, on the ground of a fraud practised by the defendant, no such offer is necessary. McKennan v. Pry, 6 W. 137; SmuU v. Jones, i W. & S. 128 ; Urket v. Coryell, S W. & S. 60 ; McCaskey v. Graff, 23 Pa. 321 ; Hall v. Vanness, 49, Pa. 457 ; Keller v. Auble, 58 Pa. 410 ; Seylar v. Car- son, 69 Pa. 81 ; Duff v. Wilson, 72 Pa. 442. 5 . .__., 66 Common Law Practice in Pennsylvania. of the purchase-money, may, by ejectment, obtain possession, if withheld by the vendor/' On payment or tender of the pur- chase-money, the vendee is invested with an equitable title, of which he cannot be divested, and which the law furnishes him with the means to complete, by having the legal title added to it."" So, an ejectment will lie by a mortgagor against the mortgagee of the land, to recover back the possession, after it shall have been held by the latter long enough to enable him to have received satisfaction of the mortgage-debt from the rents and profits of the land ; or, by vendor against his vendee, in order to be relieved from the sale and conveyance, made either through mistake, or by means of fraud ; and, in effect, by recovering again the posses- sion of the land, to set aside the sale and deed of conveyance.^^ In exercising this right, the general form of action in common use is adopted, and the articles, &c., are not required to be spread upon the record. The plaintiff is required to allege and prove no more than would induce a chancellor to decree a specific per- formance of the agreement, or a reconveyance of the land, as the case may be, though less will not avail him.^^ An equitable action of ejectment lies to enforce the execution of a trust or of a conveyance,** and therefore lies for the specific performance of a contract for the sale of land notwithstanding the equity power inhering in the courts of common pleas.** In a contract to sell real estate the remedies by ejectment or bill in 79 Hawn v. Norris, 4 Binn. yy ; Henderson v. Hays, 2 W. 148 ; Congre- gation V. Miles, 4 W. 151; Heckart v. Zerbe, 6 W. 261; Parry v. Parry, 130 Pa. 103, IDS. 80 Stoever v. Rice, 3 W. 25 ; Inman v. Kutz, 10 W. 90. 81 Heckart v. Zerbe, 6 W. 261. 82 Stein V. North, 3 Yeates 326-7; Moody v. Vandyke, 4 Binn. 42; Vincent v. Huff, 4 S. & R. 301-2; Seitzinger v. Ridgway, 9 W. 498-9. In such cases, the judge is bound to weigh the evidence as a chancellor, and where the material facts are not in conflict, to declare the law as it arises upon them. Dougan v. Blocher, 24 Pa. 28. If, in his opinion, the facts do not make out a case in which a chancellor would grant relief, it is his duty to give binding instructions to the jury. Todd v. Campbell, 32 Pa. 250. And the chancery rule prevails, that the condition of the parties, at the time of the decree, is to be considered, rather than their situation at the commencement of the suit. Devling v. Williamson, 9 W. 319; Lauer v. Lee, 42 Pa. 171 ; Markley v. Swartzlander, 8 W. & S. 176. 83 Peebles v. Reading, 8 S. & R. 484. 84 Corson v. MulvatJy, 49 Pa. 88. Administration of Equity. 67 equity to compel its specific performance are concurrent.^' When actions are brought grounded on an agreement, the recovery by the vendee is not of strict right, but always of judicial grace, he cannot therefore be permitted to recover unless the equity of his case is clearly established.^^ In a doubtful one he should be re- mitted to his action at lav^r for damages.^^ In order to main- tain his suit for performance the vendee must tender the pur- chase-money.^^ But a vendor who retains the legal title, may maintain ejectment against his vendee to enforce performance without a previous offer to reimburse a payment on account of the purchase-money, for this may be done at the trial.*^ Likewise a vendee who was lawfully in possession may maintain ejectment against the owner of the legal title who has illegally obtained pos- session without a previous tender of purchase money or bringing it into court.^" When however the defendant has a legal title to hold until money is reimbursed, the plaintiff cannot recover unless it is reimbursed before instituting the suit.^^ Again neither a vendee nor his assignee can enforce specific performance when he has been guilty of laches or of such conduct as led the other party to suppose he had abandoned the contract. ^^ In ejectment to compel specific performance of an agreement to exchange property the plaintiff must perform his part of the contract before he can compel the other party to perform. And one who has advanced the purchase money of land for another and taken the legal title as security may enforce payment by eject- ment and conditional verdict."* Equitable ejectment may be brought by the mortgagor against the mortgagee in possession, and if the mortgage debt is not paid in full the plaintiff is entitled to judgment conditioned on his pay- ing the balance due within the time specified,^' but a mere parol 8s Galloway v. Home, 2 Del. 515. 86 Elbert v. O'Neil, 102 Pa. 302. 87 Ibid. 88 Hawn v. Norris, 4 Binn. ^T, Henderson v. Hays, 2 W. 148. 89 Moody V. Vandyke, 4 Binn. 31. 90 Harris v. Bell, 10 S. & R. 39; Wykoff v. Wykoff, 3 W. & S. 481. 91 Thomas v. Wright, 9 S. & R. 87. 92 Rennyson v. Rozell, 106 Pa. 407. 93 Bonner v. Herrick, 99 Pa. 220. 94 Reed v. Murray, 11 Pa. 334. 95 Wells V. Van Dyke, 106 Pa. iii, log Pa. 330. 68 Common Law Practice in Pennsylvania. mortgage cannot be enforced by an equitable ejectment.'" And where equitable ejectment is brought by a mortgagor out of pos- session against a mortgagee in possession a tender of the amount due on the mortgage made before suit is ordinarily a condition precedent to recovery.'^ Some other applications of the principle may be given. On a conveyance of lands from father to son a covenant by the latter in a collateral agreement to maintain his sister gives her no inter- est thereon on which she can maintain equitable ejectment."' And where a plaintiff has recovered a conditional judgment in ejectment a second ejectment will not lie as a substitute for a bill in equity to recover purchase-money which was awarded as the condition of recovery.'^ A court of equity will not entertain a mere ejectment bill.^"" Lastly an outstanding equity, or a trust in the plaintiff in favor of a third party cannot be set up by a de- fendant who has no connection with the party in whose favor the equity exists, or is a stranger who is not interested in performing the trust, or a mere intruder without title.^"^ Another use is made of the action of ejectment in consequence of having no court of chancery by a creditor, who is allowed to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser. "It is not the best system," says Chief Justice Mitchell, "being a make- shift, in the absence of a court of chancery, for the administration of equitable principles under the forms furnished by the common law. But it is settled as the practice in this state, and is not al- together inconvenient, and certainly not inadequate." ^"^ 6. Partition. An equitable estate is sufficient, in Pennsylvania, to support the 96 Banes v. Morgan, 204 Pa. 185. 97 Grouse v. Binkley, 167 Pa. 182. 98 Harkins v. Doran, 15 At. 928. 99 Wall V. Stone, 3 Lack. L. N. 314. 100 Kennedy's Appeal, 81 Pa. 163; Messimer's Appeal, 92 Pa. 168; Long's Appeal, 92 Pa. 171; Barclay's Appeal, 95 Pa. 50; Richard's Appeal, 100 Pa. 52. See Hicks v. Natural Gas Co., 207 Pa. 570. 101 Lee V. Parker, S Wh. 342; Lair v. Hunsicker, 28 Pa. 115; Heath V. Knott, I Pa. 482 ; Coxe v. Bladen, i W. 533 ; Huston v. Wickersham, 8 W. 519. 102 Mantz V. Kistler, 221 Pa. 142, 144; Taylor's Appeal, 93 Pa. 21; Hunter's Appeal, 40 Pa. 194; Winch's Appeal, 61 Pa. 424; Kreamer v Fleming, 200 Pa. 414. Administration of Equity. 69 action of partition. In the case of Stewart v. Brown,"^ the de- fendant had bought lands, under an agreement with the plaintiff, that the purcase, when made, should be for their equal mutual interest; the latter had never been in possession; but the court held, that the agreement of the defendant made him a trustee for the use of the plaintiff, and that the action of partition was main- tainable against him to obtain it. A court of chancery would compel a conveyance of the legal title ; but having no such court, our practice heretofore has been, to consider that as actually done, which a chancellor would decree to be done; and, consequently, to assume a conveyance of the legal estate.^"* Since the enact- ment of the statutes of 1845,"= and i8s7,"« conferring full chan- cery powers on the common pleas there has been but little occa- sion for the exercise of equity by the law side of the courts in such matter.s.^"' 7. Excuse for profert. There are other modes by which our courts are in the constant practice of enforcing an equity in favor of the plaintiff, in a com- mon law action, which, in England, could only be obtained by a recourse to chancery. The first instance is the case of a lost bond, on which the owner could not maintain an action, in a strict- ly common law tribunal, because he could not make profert of it ; and, therefore, would be obliged to recur to chancery for an in- junction to prevent the defendant from taking advantage of its non-production. But, in our courts, the plaintiff may state his claim on the bond, and explain the reason why he cannot pro- duce it — that is, he may declare without a profert.^"* The bene- fit of the same rule is open to a defendant who may have occa- sion to plead a lost deed. 8. Deceased joint debtors. Another instance is the case of a plaintiff having a joint demand against several parties, one of whom is dead, and the survivor in- solvent. At common law, the plaintiff could only sue the sur- 103 2 S. & R. 461. And see Longwell v. Bentley, 23 Pa. 103. 104 Willing V. Brown, 7 S. & R. 469. IDS March 17, P. L. 160; 3 Purd. §27, note (t), 3414. 106 Feb. 14, P. L. 39; 2 Purd. §8, p. 1412. 107 See Sheridan v. Sheridan, 136 Pa. 14, 20; Simon v. Kessler, 12 Dist. 781, 787. 108 Respublica v. Coates, i Yeates 2; Dehuflf v. Turbett, 3 Yeates 162. 70 Common Law Practice in Pbnnsyi,vania. vivor, and to get at the estate of the deceased party, he would have to recur to chancery.^"" But our system allows suit to be brought against the personal representative of the latter, through whom a judgment may be obtained against the property of the decedent; "° and by act of ii April, 1848, in such action, the in- solvency of the survivor need not be averred on the record nor proved at the trial, to enable the plaintiff to recover.^^^ Nor is a judgment against one of several joint debtors a bar to an action against others who were not joined.^^^ Since the enactment of this legislation the estate of a co-promisor, who was a mere surety, is not discharged from liability by his death, leaving the party principal surviving, but insolvent; such a case though not within the letter is within the spirit of this act.^^^ And if one of four joint debtors be not served, judgment may be entered against the others.^^* g. Equitable plaintiffs. Another mode by which our courts give effect to the equitable rights of a plaintiff, is, by permitting an action at law to be brought in the name of the legal party to a contract, for the use of an equitable assignee. By the common law, no person could sustain an action on a contract, but him who was a privy to it ; in equity, however, an assignee for a valuable consideration was always held to be entitled to sue, as fully and completely as his assignor. An assignment of a chose in action is considered in equity as a declaration of trust.^^° And, by our practice, the action though brought in the name of him who is privy in law, is marked to the use of the party beneficially interested, and throughout the whole proceeding, the latter is so completely re- garded as the plaintiff, by the court, that it will suffer the suit to be brought without the consent of the former, and will not per- mit him, in any case, to discontinue it.^^" And, whether named 109 Hengst's Appeal, 24 Pa. 420. no Stiles v. Brock, i Pa. 216; L,ang v. Keppele, i Binn. 123; Welsh V. Speakman, 8 W. & S. 261. 111 P. L. 536, 2 Purd. §9, p. 2040. 112 Ibid, §10, p. 2040. 113 Bowman v. Kistler, 33 Pa. 106; Keller's 's Estate, i Foster 170. 114 Van Zandt v. Winters, 22 Super. Ct. 181. 115 Bury v. Hartman, 4 S. & R. 179, 184. 116 Bury V. Hartman, 4 S. & R. 179; Steele v. Phoenix Insurance Co., 3 Binn. 312; McCuUum v. Coxe, i Dall. 139, 40. Administration of Equity. 71 in the record, or not, the party to whose use an action is brought, is liable for the costs. Thus the equitable owner of a chose in action can bring an action in the name of the legal plaintiff, whether he is willing or not, but the plaintiff is liable for costs."'^ If the assignor die, before suit brought, and no administration be granted upon his estate within three months thereafter, or, if he shall leave the state, or cannot be found, the equitable assignee may maintain an action in his own name. And, if the assignor die, after suit brought, the assignee may, notwithstanding, prose- cute his suit to judgment, and have execution thereon, as if the legal plaintiff were still living.^^* Again if a purchaser of land covenants to pay off a mortgage thereon, an action may be brought on the covenant in the name of the covenantee to the use of the mortgage holder.^" A contractor who agrees to drill a well, but does not intend to do the work himself, miy assign the contract, and the assignee, on completion of the work, may sue in the name of the assignor to recover for the work done under the contract.^^" The title of an equitable plaintiff need not be traced from the legal plaintiff, by averment, or otherwise indi- cated than by marking the suit to his use ; ^^^ if there be any con- flict of claims to the cause of action, the defendant has nothing to do with the question ; but it is determined by an issue between the parties, after the money is brought into court.^^^ By the practice of the courts of Philadelphia, the attorney bringing such action may be ruled to file his warrant; when he must either show an authority from the legal plaintiff, which is conclusive ; or he must, 117 Coffey V. White, 14 W. N. C. 108; Kenebec I. & C. Co. v. Wil- mington & Northern R. Co., 13 W. N. C. 162; Guaranty T. & S. D. Co. v. Powell, 150 Pa. 16. But see Commonwealth v. Phoenixville & B. R. Co., 18 Montg. 139. 118 Act 23 April, 1829, 10 Sm. L,. 45s, 2 Purd. §1, p. 1403. Where suit is brought by the legal plaintiff and the cause of action is subsequently assigned, this act does not relieve him from his liability for costs. Kin- ley V. Donnelly, 6 Phila. 120. 119 Blood V. Crew Levick Co., 171 Pa. 342. 120 Galey v. Mellon, 172 Pa. 443. 121 Armstrong v. I 2 Purd. §8, p. 1412, 19 May, 1897, P. L. 68, 2 Purd. §51, p. 1447- 476 Hope Hose Company's Appeal, 2 W. N. C. 451. i64 Common Law Practice in P£nnsyi,vania. peal lies.*" So, no appeal lies from a decree to account ;*'* nor from the refusal of an issue ;*'^ nor from an order granting a re- hearing;*^" nor from a decree upon a demurrer for want of. parties, "with leave to amend ;"**^ nor from the taxation of costs ;*^^ nor when proceedings are still pending in the court below;**' nor from a decree refusing to dismiss a bill for the partition of real estate ;^** nor from an order discharging a rule to set aside service; nor an order overruling a demurrer in di- vorce with leave to amend ;*^^ nor from a decree appointing a master to conduct a corporate election ;**° nor from a decree or- dering dissolution of a partnership and the appointment of a re- ceiver but without stating an account;**^ nor from an order to sell the estate of a lunatic ;*** or the real estate of a dissolved cor- poration;**" nor from a decree refusing to open an account and ordering a later accounting;*'" nor from an order directing a de- cree to be prepared in accordance with the findings of the trial judge which decree by agreement was to be final.*"^ But an ap- peal will lie on the judgment quod partitio fiat in all actions of partition.*"^ If, however, the judgment has been entered by con- fession, and there is nothing on the record to show that it is er- roneous, an appeal will not lie to the subsequent action of the court until final judgment has been rendered.*'^ On appeal from an order granting an interlocutory injunction, 477 Kimmel's Appeal, 2 W. N. C. 138. 478 Cooper V. Vanfleet, 2 W. N. C. 241. 479 Scheetz's Appeal, 35 Pa. 88. 480 Jones' Appeal, 99 Pa. 124. 481 Bishop V. Culver, i W. N. C. 272. 482 Persch v. Quiggle, 57 Pa. 247; Fidelity Trust Co.'s Appeal, 11 W- N. C. 104; Pile V. Pedrick, 167 Pa. 296. The court will not reverse on a question of costs, unless the error be a glaring one. Hepburn's Appeal, 6s Pa. 468. 483 Hall's Appeal, 56 Pa. 238; Pennsylvania Steel Co.'s Appeal, 161 Pa. S7I- 484 Palethorp v. Palethorp, 168 Pa. 102. 485 Richardson v. Richardson, 193 Pa. 279. 486 National Transit Co. v. U. S. Pipe Line Co., 180 Pa. 224. 487 Pantall v. Mclntyre, 197 Pa. 520. 488 Garvey's Estate, 13 Super. Ct. 2^^. 489 Titusville Oil Exchange Case, 10 Super. Ct. 496. 490 Lauer v. Lauer Brewing Co., 180 Pa. 593. 491 Watkins v. Hughes, 206 Pa. 526. 492 Act April 5, 1842, P. L. 142, 2 Purd. §5, 1434. 493 Hawk V. Jones, 24 Pa. 127. Principles of Equity. 165 the court will not regard an answer subsequently filed ;*''* nor dis- cuss on such appeal the merits of the case further than may be necessary to determine the propriety of an injunction at that stage of the proceedings.*^^ The affidavits and testimony should be sent up with the record; and the appellate court rehears the case on the merits.*"® Upon appeal to the supreme or superior court such matters only as have been excepted to and finally passed upon by the court shall be assigned for error.*"^ A party is entitled to only one appeal from the same decree though prejudiced by the allowance of different claims.*"* And separate and independent claimants have no right to appeal jointly from a decree of distribution, and the appellees can re- quire them to select which will suffer a non pros.*"" Furthermore the court will enforce a stipulation waiving the right of ap- peal;""" also an agreement that a master's report shall be "with- out exception or appeal. "°°^ 20. Final Decree.(j) A final decree in equity, for the payment of money, is a lien upon the real estate of the debtor, for a like period, and with the same force and effect, as a judgment at common law; and the plaintiff is entitled to the same remedy, by scire facias or other- wise, for the revival and continuance thereof; and should any issue of fact arise in the course of such proceeding of revival, it is to be determined by an issue, according to the practice of courts of equity.^"^ Final process to enforce such decree is by the ordinary writ of execution in actions of debt or assumpsit.^"^ "If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or delivering up of deeds or other documents, the decree shall prescribe the j 3 Vale 797S. 494 Lyon's Appeal, 61 Pa. 15. 495 Bryner v. Youghiogheny Bridge Co., 190 Pa. 617; L,ockwood v. Ambridge Borough, 233 Pa. 521. 496 Schlect's Appeal, 60 Pa. 172. 497 Equity Rules dfj. 498 Robert's Appeal, 92 Pa. 407. 499 Adamson's Appeal, no Pa. 459; White's Appeal, 42 L. 18. 500 Galbreath v. Colt, 4 Yeates 551. 501 Lewis' Appeal, 91 Pa. 359. 502 Act March, 1859, P. L. 289, 2 Purd. §58, p. 1425. 503 Equity Rule 88. i66 Principlbs of Equity. time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice : and upon affidavit of the plaintiff, filed in the prothonotary's office, that the same has not been complied with, the court, if sitting, or any law judge during vacation, may direct the issuing of a writ of attach- ment against the delinquent party, from which, if attached there- on, he shall not be discharged unless upon a full compliance with the decree and the payment of costs, or upon a special order of the court or of a law judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delin- quent party cannot be found, a writ of sequestration may, upon motion, be ordered by the court or a law judge thereof, to be issued against his estate upon the return of non est inventus, to compel obedience to the decree."'"* 504 Equity Rule 88. CHAPTER IV. General Powers oe the Court. 1. To issue process. 6. Special courts. 2. To make rules of practice. 7. Notice for holding. 3. To punish contempts. 8. Who may hold them. 4. To make rules on sheriffs, etc. 9. Assignment of judges to other 5. Review of convictions. districts. I. To issue process. The act of 1836,^ provides, that the courts of common pleas shall have power to award process, to levy and recover such fines, forfeitures and amercements as shall be imposed, taxed or ad- judged by them respectively; to issue writs of subpcena, under their official seal, into any county of the commonwealth, to sum- mon and bring before the court any person, to give testimony in any cause or matter depending before them, under the penalties appointed and allowed in such case by the laws of this common- wealth.^ The courts will not enforce the personal attendance of a witness residing more than forty miles from the place of trial." Nor will they compel public officers to bring into court original office-papers, by a subpoena duces tecum.* A defaulting wit- ness, however, may be attached, though the subpoena were not served, five days before the trial; that rule only applies to an application for a continuance.^ The constitution of 1790 like- wise conferred upon the courts the powers of a court of chancery, so far as relates to the perpetuation of testimony, and the obtaining of evidence from places not within the state; con- firmed by the general words of the present instrument; this is done, either by the issuing of a commission for the examination 1 §§20, 22, P. L. 792 ; I Purd. §§91, 93, p. 636. 2 By act of 22 May, 1722, §23, under such pains and penalties as, by the rules of the common law and course of practice in the king's courts at Westminster, are usually appointed. I Sm. L. 143; 4 Purd. §26, p. 4512. 3 Pennock v. Freeman, i W. 401. 4 Delaney v. Regulators of Philadelphia, i Yeates 403. And see Ship- pen V. Wells, 2 Yeates 260. 5 Scriber v. Reeves, i Phila. 284. 167 i68 Common Law Practice in Pennsylvania. of the witness, or, if the laws of the place do not permit the execution of such commission, by letters rogatory to one of the local foreign courts. It is under this clause, that commissioners appointed to take depositions, derive their authority to admin- ister oaths.* 2. To make rules of practice, (a) Power is also conferred upon them, by the statute, to establish rules for regulating the practice of the respective courts, and for expediting the determination of suits, causes and proceedings therein, as, in their discretion, they shall judge necessary and proper; provided the same be not inconsistent with the consti- tution and laws of the commonwealth.' The power to make rules of practice is inherent in every court of record,^ which may be published at the expense of the county." They may make a rule requiring defendants to file an affidavit of defence ■,'^° for the affirmance of a justice's judgment, if no legal reason be assigned for a continuance;" requiring a defendant to deny, by affidavit, the execution of the instrument on which suit is brought; and in suits by or against partners, the existence of the partnership, or that the same shall be deemed admitted ;^^ authorizing a plain- tiff to take judgment for a sum admitted to be due, and to pro- ceed for the residue ;^^ requiring a party, appealing from an award, to give notice of the time and place of entering the ap- peal and the name of his surety;^* or to the presentation of points to charge upon; and may refuse instructions, where the rule has not been complied with.^^ And they may establish a a I Vale 1 1 19; 2 Vale 4798. 6 Frank v. Calhoun, S9 Pa. 386. 7 See act 24 May, 1878, P. L. i3S; I Purd. §94, p. 636, as to the counties forming separate judicial districts, with but one judge. 8 Vanatta v. Anderson, 3 Binn. 417; Mylin's Estate, 7 W. 64; Wil- kins V. Anderson, 11 Pa. 405; Elkinton v. Fennimore, 13 Pa. 173. 9 Act April 16, 1903, P. L. 222; I Purd. §§S-8, p. 893. 10 Vanatta v. Anderson, 3 Binn. 417; McGreevy v. Kulp, 126 Pa. 97, 100. See I Vale 149. 11 Kuhn V. Kisterbock, 6 Wh. 166; Frost v. Roatch, 6 Wh. 359; Elkington v. Fennimore, 13 Pa. 173; Lloyd v. Toudy, 4 W. N. C. 225. 12 Odenheimer v. Stokes, s W. & S. 17s; McAdams v. Stilwell, 13 Pa. go. 13 Russell V. Archer, 76 Pa. 473. 14 Barry v. Randolph, 3 Binn. 277. 15 Haines v. Stauffer, 13 Pa. 541. Generai, Powers of the Court. 169 rule requiring the publication of the trial-list, at the expense of the county.^« The several courts are the most proper judges of the extent and application of their own rules.^^ A mistake by the court below, in the construction of one of its rules, must be very obvious, to induce the appellate court to reverse for that rea- son." The several courts have also power to fix the number ot their regular terms, and the times for holding the same.^^ The construction of court rules is a matter within the discretion of the court that has adopted them, which is not reviewable unless the courts' discretion has been abused and the rights of parties jeopardized.^" Thus the discretion of the lower court in refusing to condone an infraction of its own rules will not be reviewed,^^ but to disregard its own rule is reversible error.^^ 3. To punish contempts. The courts have also power to punish contempts in a summary manner; but the power to issue attachments for contempt of court is restriced by statute to the following cases : i. To the official misconduct of the officers of such courts respectively:^^ 2. To disobedience or neglect by officers, parties, jurors or wit- nesses, of or to the lawful process of the court : 3. To the mis- behavior of any person in the presence of the court, thereby ob- structing the administration of justice.^* The punishment of im- prisonment for contempt extends only to such contempts as are committed in open court ;^' all other contempts are to be pun- ished by fine only. The party, however, may be committed for non-payment of his fine, for any time not exceeding three months. 16 Venango County v. Durban, 3 Grant 66. 17 Snyder v. Bauchman, 8 S. & R. 336; Umberger v. Zearing, 8 S. & R. 163; Road from Johnstown, i P. & W. 243; Rundel v. Keeler, 7 W. 237; Wickersham v. Russell, 51 Pa. 71; Coleman v. Nantz, 63 Pa. 178; Gannon v. Fritz, 79 Pa. 303; Carey v. Commonwealth, 4 Brewst. 62; Andrews v. Bank of Titusville, 23 P. L. J. 133. 18 Grove V. Donaldson, 15 Pa. 128. 19 Act 18 March, 1875, P. L. 28; i Purd. §60, p. 630. 20 Bair V. Hubartt, 139 Pa. 96; Brennan v. Prudential Ins. Co., 148 Pa. 199; Higgins Carpet Co. v. Latimer, 165 Pa. 617; McDermott v. Woods, 147 Pa. 356; Lancaster Co. Nat. Bank v. Henning, 171 Pa. 399. 21 Strouse & Co. v. Bard, 8 Super. Ct. 48. 22 Todd V. Quaker City Mutual Ins. Co., 9 Super. Ct. 371. 23 This extends to county commissioners. Hummel's Case, 9 W. 416. 24 See Commonwealth v. Wilson, i Phila. 83. 25 See Commonwealth v. Davis, i W. N. C. 18, 170 Common Law Practice in Pennsylvania. The court will not punish, as a contempt, an act not committed in its presence, where there is another remedy.^* Before a party can be held guilty of a contempt, some order of court must be made, and personally served on him.^^ A rule is generally granted, in the first instance, on affidavits, upon the return of which, the defendant answers on oath, the evidence is heard, and if the court be of opinion, that the fact on which the rule was taken is not sufficiently answered or excused, and that, in point of law, a contempt has been incurred, an attachment is awarded, when the defendant is brought in on this writ to answer inter- rogatories propounded to him on behalf of the commonwealth, in whose name the writ always issues; and if he give such an- swers as purge him from criminality, he must be discharged.^* A justice, appointed by rule of court to take depositions, may commit a witness who contumaciously refuses to be sworn.^'' Nevertheless, where the right to compel the witness to answer is a doubtful one, the proper course is, to report the question for the action of the court, where the party laying a proper ground by affidavit, may obtain, by special motion, a subpoena, directed to the witness, to appear and testify at the bar of the court; upon which an attachment may issue, or the witness be commit- ted, as the circumstances require.'" The statute further provides, that no publication out of court, respecting the conduct of the judges, officers of the court, jurors, witnesses, parties, or any of them, of, in or concerning any cause depending in such court, shall be construed into a contempt of the said cotirt, so as to render the author, printer, publisher, or either of them, liable to attachment and summary punishment for the same. But if such publication shall improperly tend to bias the minds of the public, or of the court, the officers, jurors, wit- nessses, or any of them, on a question depending before the 26 Ex parte Hirst, 9 Phila. 216. 27 Pierce v. Post, 6 Phila. 494; Patterson v. Patterson, i W. N. C. 374; McKinne/s Estate, 2 W. N. C. 156; Chew's Estate, 3 W. N. C. 392; Douglass-Wheeler Brick Co., v. Simpson, 233 Pa. 517. But see New Brighton & New Castle R. Co.'s Appeal, 105 Pa. 13. 28 Commonwealth v. Snowden, i Brewst. 219; HoUingsworth v. Duane, Wall. C. C. 78; Douglass- Wheeler Brick Co. v. Simpson, 233 Pa. 517- 29 Commonwealth v. Roberts, 2 Clark 340. 30 Pfiel V. Elmes, Dist. Court, Phila., 24 March, 1848. And see Broph/s Estate, 3 W. N. C. 306. General, Powers oe the Court. 171 court, it shall be lawful for any person aggrieved thereby, to pro- ceed against the author, printer and publisher thereof, or either of them, by indictment; or,^^ he may bring an action at law against them, or either of them, and recover such damages as a jury may think fit to award. The constitution of 1874 pro- vides,^^ that no conviction shall be had, in any prosecution for the publication of papers relating to the official conduct of offi- cers, or men in public capacity, or any other matter proper for public investigation or information, where the fact that such pub- lication was not maliciously or negligently made, shall be estab- lished to the satisfaction of the jury.^^ 4. To make rules on sheriffs, etc. The several courts, nevertheless, have power to make rules on sheriffs and coroners, for the return of all process in their hands, and for the payment of money, or delivery of any article of value in their possession, according to their respective duties ; and also to make rules upon attorneys, for the payment of money, and the delivery of deeds and other papers in their hands, be- longing to their clients, and, in every such case, to enforce obedi- ence to such rules by attachment. And the courts possess the same power against former sheriffs and coroners, if application be made for the purpose, within two years after the termination of their offices respectively.^* 5. Review of convictions. A conviction for contempt is a substantive criminal offence; and, therefore, subject to the revision of the supreme court on certiorari or writ of error; and, if the court below were with- out jurisdiction in the matter — as, if it assume to punish as a criminal contempt, the disobedience of a witness to a writ of subpoena — the proceedings will be reversed.^' But if the court 31 See Foster v. Commonwealth, 8 W. & S. ^^. 32 Art. I., §7. 33 See Respublica v. Dannie, 4 Yeates 267; Commonwealth v. Odell, 3 Pitts. 449; Commonwealth v. McClure, 3 W. N. C. 58; Struthers v. Evening Bulletin, Ibid. 215. 34 Act 16 June, 1836, P. L- 793, i Purd. §6, p 737. 35 Commonwealth v. Newton, i Grant 453. 172 Common Law Practicb in PuNNSYLVAXiA. has jurisdiction, its adjudication of a contempt is conclusive, and cannot be re-examined in any other court.^^ 6. Special courts, (b) The act of 14 April, 1834,^^ provides, that special courts ol common pleas ^* shall be holden in the several counties of this commonwealth, at the respective places appointed by law for holding courts of common pleas, in every of the cases following, to wit : I. Whenever the president judge of any of the said courts shall be personally interested in the event of any cause depending in any county of his district.^'' II. Whenever the title, under which the parties, or either of them, claim, in any cause depending as aforesaid, shall have been derived from or through such president; or, whenever the president shall hold under the same title with either of the parties in the cause : III. Whenever any near relative of the president judge of any of the said courts shall be a party to any cause depending as aforesaid, or interested in the event thereof : IV. Whenever the president judge of any of the said courts shall have been concerned, as an attorney or counsel, for either of the parties, in any suit depending as aforesaid, or in b 2 Vale 4818. 36 Williamson's Case, 26 Pa. 9; Hurley v. Commonwealth, 188 Mass. 443, 444. One court cannot modify or set aside the judgment of another court of co-ordinate jurisdiction. Doyle v. Commonwealth, 107 Pa. 20; Morch V. Raubitschek, 159 Pa. 559, 561. 37 P. L. 349; I Purd. §74, p. 632. 38 Extended to orphans' courts, and courts of quarter sessions and oyer and terminer, by act 4 April, 1843, P. L. 133; 3 Purd. §30, p. 3371. In case of the inability of a judge of the orphans' court to sit in any matter depending therein, he may call upon any other orphans' court judge, or judge of any court of common pleas, to preside and determine the same. Act 4 March, 1875, P. L. 5, 3 Purd. §31, p. 3372. But this act does not empower a judge of a separate orphans' court to hold a spe- cial court, in another county, in which no separate orphans' court has been established; such case is provided for by the act of 1843. Living- ston's Appeal, 6 W. N. C. 310. 39 The decision of the judge upon the question of interest cannot be reviewed on error; it is a matter entirely within his discretion. Phila- delphia Library Co. v. Ingham, i Wh. 72; Barrington v. Bank of Wash- ington, 14 S. & R. 419 Of the 0]?ficERS OF THE Court. 173 any other cause touching the same subject-matter; or for any other person, under whom said parties, or either of them, claim:*" The parties may, however, agree in writing, to be filed of record, in any of such cases, to a trial before such president, or before him or any one or more of his associates, or before the associates. 7. Notice for holding. Whenever any special court shall be necessary for the trial of any cause or causes depending as aforesaid, it shall be the duty of the president of the court in which such cause shall be depend- ing, to give notice thereof to the prothonotary of such court ; who shall forthwith make out a list of all such causes, and transmit the same to the president judge who may reside nearest to the place where such cause is to be tried. *^ On the receipt of such list, it shall be the duty of such president, to appoint a time for holding a special court in the county where such cause or causes ought to be tried ; and at the time so appointed, to hold the said court, with one or more of the associate judges of the county; and courts so holden may be adjourned, from time to time, un- til all such causes shall be finally determined. Sixty days' public notice must be given of the time of holding such court. All proceedings before such special court have the same force and effect, as if before the proper president, and are, in like manner, subject to appeal or writ of error. 8. Who may hold them. By act of 10 April, 1849,*^ whenever it shall be necessary to hold a special court, an arrangement may be made between the president judge of such district and the president of another** district, to hold the regular term of his court, or any adjourned term thereof, without additional notice, or special venire.** And 40 Where one of the judges is related to a party, and the other has been counsel in the cause, it is a case for a special court. Spoul v. Ihm- sen, 6 W. & S. 525. 41 By act of 22 April, 1856, P. L. 500; I Purd. §31, p. 3372, the nearest judge, who shall be disinterested. And see act 18 March, 1840, P. L. 153; I Purd. §79, p. 633. 42 P. L. 619; I Purd. §80, p 633. 43 By act 18 April, 1853, P. L. 573, it need not be the president of an adjoining district. I Purd. note (n), p. 634. ■44 Tracey v. Pendleton, 23 Pa. 171. 174 Common L,aw Practice in Pennsylvania. the judge whose place is thus supplied, may take the place of the other judge, and hold the courts in the district of the latter. And by act of 2 April, 1860,*° in the case of the inability of a president judge, from any cause whatever, to hold the regular terms of his court, he may call upon any president judge of the commonwealth, who may be disengaged, to hold the same. A judge who holds a special court may deterrriine questions hoi den under advisement, in vacation, and transmit his decision in writ- ing to the prothonotary of the proper county, to be by him filed of record ; but notice must be given to the opposite party, before issuing execution on such judgment.*^ Where a case is tried before the president judge of an adjoining district, who, after- wards, in vacation, files an opinion, granting a new trial, unless the plaintiff releases all subsequently accruing damages, the as- sociate judges of the proper county have no power to set aside his decision, and enter judgment on the verdict.*' The judge holding the court has the same power as the presi- dent judge of the district.*^ His certificate of his interest in the cause is sufficient for trial by a neighboring president.*® And where he has been of counsel in the cause the associate judges cannot determine a motion for a new trial ; the case must be cer- tified to the nearest president judge.^" Again, when the judge specially presiding suspends sentence, the president judge of the county where the case was tried may subsequently impose sen- tence."^ A change of venue will not be granted when the objections relate merely to the personal opinions and feelings of the judge."^ And in Philadelphia a court may dissolve an attachment which has been issued on the same allegations as a prior attachment dissolved by another court.^^ And judges specially presiding 45 P- L- SS2, I Purd. §83, p. 634- 46 Act 5 May, 1864, P. L. 829; i Purd. §83, p. 634. 47 Glamorgan Iron Co. v. Snyder, 84 Pa. 397. 48 Bartolet v. Faust, 5 Phila. 316. 49 Voris V. Smith, 13 S. & R. 334. See Barrington v. Bank of Wash- ington, 14 S. & R. 40s ; EUmaker v. Buckley, 16 S. & R. 72. so Kolb's Case, 4 W. iS4- 51 Commonwealth v. Dunleavy, 16 Super. Ct. 380. 52 Wallace v. Jameson, 179 Pa. 98. See Chap. XVII, §21. 53 Merritt v. Quigley, i Dist. 505. Of the Officers of the Court. 175 may file their opinions in vacation, disposing of a pending motion for a new trial, although the disposition of the cause was ad- verse to the wishes of the associate judges."* The plaintiff cannot have a special court under the act of 1782,== before the return of the writ.^^ Nor will a special court be ordered on the ground that one of the plaintiffs has assigned all his interest to the other and that the latter is about to depart from the county.^'' When the president judge of a district is under no disability to hold the regular term, but only to try a particular case, he may certify it under the act of 1861,^^ to any judge, but he must transmit it to the nearest disinterested presi- dent judge under the act of 1856. The judge thus serving may try the case at the regular term with the regular panel of jurors' and thus avoid the delay, expense and machinery of a special court.^^ Lastly where no special exigency is shown, a special court, after election, for the apprehension of persons who may be charged with violating the law, will not be granted.*" 9. Assignments of judges to other districts. By the act of 1911,*^ it is provided that any law judge of any court of common pleas who can spare the time to sit in the courts of any other judicial district for the disposal of business, and who is willing so to do, shall file with the prothonotary of the supreme court, at convenient times, a statement of the ensu- ing weeks or months during which he is willing to be assigned to work in other judicial districts. The prothonotary of the supreme court shall keep a separate book, known as the "Judicial Assignment Register," in which he shall record the name ot each judge who has filed such a statement with his dictrict, and the periods indicatedin his statement. When any of the judges shall be assigned the prothonotary shall forthwith enter on his register the period or periods for which, and the districts to which, they have been assigned. On receiving a request from 54 Korman's Application, 162 Pa. 151. 55 April 10, 2 Sm. L. 17. 56 McCarty v. Nixon, i Dall. Tj. 57 Kunckel v. Baker, i Dall. 169. 58 May I, P. L. 494, i Purd. §84,,?. 634. 59 Commonwealth v. White, 161 Pa. 576. 60 Lea's Petition, 13 Dist. 727. 61 April 27, P. L. loi ; Purd. Supp. 64. 176 Common Law Practice in Pennsylvania. any judge, asking information as to the judges registered, on his docket, and the periods that each of the judges has designated as the time that he can spare for assignment, the prothonotary shall forthwith furnish such information in writing. Any president judge of any court where there is only one judge, or a majority of any court where there is more than one judge, being of the opinion that it is necessary for the purpose of expediting the business of. the court, shall have the power to call on any of the judges thus registered by transmitting a writ- ten request to the prothonotary of the supreme court, who shall forthwith send such request to the judge mentioned. If no par- ticular judge is designated in the call, then the prothonotary shall transmit the request to one of the judges who is registered on the docket, and the judge who responds to the call shall be assigned to specially preside in the district from which the call has come, for the purpose of transacting the business, with the same power and authority as is vested in the judge or judges of that district. The authority and jurisdiction of such a judge is ended with the entry of a final decree in the case tried before him. If it is reversed and remitted for a rehearing, he cannot be mandamused to preside at the rehearing.^^ Each judge so assigned, shall, at the end of the month in which he is so engaged, make and forward to the auditor general, on a blank form to be furnished for that purpose, the place or places where he presided as judge, the name of the court, num- ber of cases . heard, and nature of the same, that is, criminal, civil or in equity, and the number of days engaged. The judges thus assigned shall be paid as compensation the sum of twenty dollars per day, and car-fare, and no more. No payment shall be made for days consumed in such service of more than expenses and car-fare, unless the judge, so assigned, actually presides in open court, either at argument, hearing or trial; a;nd no such judge shall preside in another district while an outside judge is sitting in his own district. 62 Rumsey v. LJndsey, 207 Pa. 262. CHAPTER V. Oi? THE Officers of the Courts. 1. Prothonotaries. 8. Stenopraphic reporters, theif 2. How appointed. appointment and duties. 3. Their authority. 4. Deputy prothonotaries. 9- Act of 191 1. 5. Liability of prothonotary. iq. Sheriff and coroner. 6. Court criers and tipstaves. 7. Commissioners to take deposit II. Duties of sheriff. tions. 12. Sheriff of Philadelphia. I. Prothonotaries. (a) The constitution of 1838 provided, that the prothonotaries ot the supreme court should be appointed by the said court, for the term of three years, if they should so long behave themselves well. That of 1874 provides that all officers whose election is not thereby provided for, shall be elected or appointed as may be directed by law; but it also provides that none of the judges of the supreme court shall exercise any power of appointment, except as therein provided. Prothonotaries of the courts of common pleas are county officers, to be elected at the general election, and hold their offices for the term of three years, from the first Monday of January of next succeeding, and until their successors shall be duly qualified.'^ They are required, by the act of 1834,^ to give bond, in such sum as the governor shall direct, with condition faithfully to execute the duties of their office, and well and truly to account for and pay, according to law, all moneys which shall be received by them in their official capacity, and to deliver the books, seals, records, writings and papers, be- longing to their respective offices, whole, safe and undefaced, to a 2 Vale 4655. 1 In case of a tie vote, the incumbent holds over ; there is no vacancy, which the governor can fill by appointment. Commonwealth v. Barnett, 8 Luz, L. R. 81. So also, if the officer elect die, before he has qualified. Commonwealth v. Hanley, 9 Pa. Si3- And so also, the incumbent holds over, pending a contested election. Barber's Case, 5 W. N. C. 350. 2 P. L. 3SS; 3 Purd. §74, p. 3670. 12 177 178 Common Law Practice in Pennsylvania. their successors therein.* The constitution provides that they shall keep their offices in the proper county town.* 2. How appointed. It is further provided by the constitution,^ that, in Philadel- phia, there shall be one prothonotary's office, and one prothono- tary for all the courts of common pleas, to be appointed by the judges thereof, and to hold office for three years, subject to a removal by a majority of the said judges. He shall appoint such assistants as may be necessary, and authorized by said courts; and he and his assistants shall receive fixed salaries, to be deter- mined by law, and paid by the county. All fees collected in said office, except such as may be by law, due to the commonwealth, shall be paid by the prothonotary into the county treasury. By the act of 21 March, 1899,® his salary is fixed at the sum of ten thousand dollars per annum. 3. Their authority, (b) Prothonotaries are empowered, by statute,' to sign and affix the seal of the court to all writs and process, and also to exem- plifications of all records and process, in their respective courts; to take bail in civil actions depending therein; to enter judg- ments, at the instance of plaintiffs, upon the confession of de- fendants ; to sign all judgments ; to take the acknowledgment of satisfaction of judgments or decrees entered on the record of the respective court; to administer oaths and affirmation;' to copy every judgment, whether liquidated or not, into the judg- b 2 Vale 4656. 3 See Young v. Commonwealth, 6 Binn. 88; McKeehan v. Common- wealth, 3 Pa. 152; Commonwealth v. Conrad, i R. 249; Ziegler v. Com- monwealth, 12 Pa. 227; Watson v. Smith, 26 Pa. 395. 4 Art. XIV., §4. 5 Art. v., §7. 6 P. L. 12, I Purd. §25, p. 880. See Shepherd v. Collins, i W. N. C. 494; Perot's Appeal, 86 Pa. 335. 7 Act 14 April, 1834, §77, P- h. 355 ; i Purd. §75, P- 3671. 8 March 22, 1859, P. L. I94; i Purd. §76, p. 3672. Prothonotaries cannot practice as attorneys in their own courts, act 14 April, 1834, §75, P. L. 355; I Purd. § 4, p. 372. But they may appoint deputies, who may do all the acts that their principal could perform. Commonwealth v. Finney, 17 S. & R. 28s; Reigart v. McGrath, 16 S. & R. 65; Drumhel- ler V. Mumaw, 9 Pa. 19. In case of a vacancy in the office of prothono- tary, his principal deputy is empowered to discharge all the duties of the office, until the appointment and qualification of a successor in the office; Of ths Officers of the Court. 179 ment docket immediately after it shall have been entered." "Such unliquidated judgments, where the ascertainment of the amount is a mere matter of computation have been held to be liens from the date of entry."^" By Philadelphia rule of court he "shall en- dorse upon each praecipe or other original paper which may be filed in every action or proceeding, the court to which the said action or proceeding is assigned, and shall enter the same in the proper docket of the said court."^^ The legislature in 1905,^^ further provided that it should be the duty of the plaintiff in every judgment rendered by a justice of the peace or alderman against any borough, township a school district to file within a week after its rendition with the prothonotary, a certificate signed by the plaintiff naming parties to the action, the name of the trial magistrate and the fact, date and amount of the rendition. This act makes the filing of the certificate indispensable ^' to the mode of obtaining an execution against a county as prescribed by the act of April, 1834; ^* con- sequently a transcript filed without the certificate will be stricken off.^' The constitutionality of the act however has sometimes been questioned, at other times ignored.^* A prothonotary may take and attest an affidavit of defence;*^ also the afifidavit of no delay which accompanies the praecipe for a certiorari to a justice of the peace ; this however must be done by the prothonotary of the court from which the writ issues;^' it is the duty of the prothonotary, to appoint such principal deputy; and when the latter acts as prothonotary, he is required to give bond, similar to that of his principal, to be approved by one of the judges of the court. Act 12 February, 1874, P. L. 43; 3 Purd. §86, p. 3674. 9 Act March 29, 1827, §3, P. L- I55; 2 Purd. §38, p. 2051. 10 Heydrick, J., Campbell v. Floyd, 153 Pa. 84, 97; Commonwealth v. Baldwin, i W. 54; Sellers v. Burk, 47 Pa. 344. 11 Rule I, p. 5. 12 April 22, P. L. 296; 5 Purd. §1, p. 5852. 13 Wolff v. Salem Township Supervisors, 17 Dist. 1006. 14 April 15, §6, P. L. 538; I Purd. §22, p. 83S; 3 Wolff v. Salem Township Supervisors, 17 Dist. 1006. 15 Wolff v. Salem Township Supervisors, 17 Dist. 1006. 16 McKenna v. Borough of Dunmore, 2 I,eh. Co. 332; Fleming Mfg. Co. v. Hector Township, 35 C. C. 105. Contra,— Wolff v. Salem Township Supervisors, 17 Dist. 1006. 17 Kemp V. Barnhart, i Wood. 152. 18 Hicks V. Peoples' L. & S. Association, i Justice 32. See act of Feb. 3, 1817, 6 Sm. L. 398; i Purd. §75, p. 1460. i8o Common Law Practice in Pennsylvania. he also may take recognizance of bail on a certiorari issued to a justice;^" may affix his signature to the jurat to an answer to a petition to set aside a sheriff's sale as of the date to which it was actually sworn ;^° may receive a confession of judgment and praecipe for an execution on Sunday, on which he acts on the following day.^^ On the other hand he has no authority to re- ceive payment of a judgment,''^ or to receive a party's costs and give a discharge therefor.^^ 4. Deputy prothonotaries.(c) The act of 1874,^* provides for the appointment of a principal deputy by each prothonotary ; while their mode of appointment and duties are prescribed by the same act and also the acts of 1895^^ and 1897.^° The acts of a deputy that are of a ministerial nature and which might have been performed by the prothono- tary are valid. ^^ He has therefore power to take an affidavit on which a certiorari issues;^" also to take an affidavit on which an appeal from an award of arbitration is entered ;^^ to sign the process of court;'" to administer an oath for his principal where the latter acts ministerially in so doing ;'"^ to administer an oath required to be taken by a suitor;'^ to sign a scire facias to re- vive a judgment ;'' to sign a declaration of intention to become a citizen;'* but he has no power to enter a discontinuance given by a plaintiff to the prothonotary as an individual.'^ c 2 Vale 4658. 19 Clark V. McCormick, 2 Phila. 68. 20 Coke V. Coke, 156 Pa. 47. 21 Kauffman's Appeal, 70 Pa. 261. 22 Tompkins v. Woodford, i Pa. 156; Wells v. Baird, 3 Pa. 351. 23 Thomas v. Burnett, 21 P. L. J. 13. 24 Feb. 12, P. L. 43 ; 3 Purd. §86, p. 3674. 25 March 18, §2, P. L. 25; 3 Purd. 387, p. 3674. 26 May 26, §1-3, P. L. 100; 3 Purd. §§88-90, p. 3674- 27 Commonwealth v. Finney, 17 S. & R. 282. 28 Henderson v. Alexander, i Lane. L,. Rev. 11. 29 Davison v. Clifford, 2 C. C. 452; Drumheller v. Mumaw, 9 Pa. 19. 30 Harden v. Roberts, 9 C. C. 160. 31 Commonwealth v. Greason, 5 S. & R. 333. 32 Gibbons v. Sheppard, 2 Brewst. I. 33 Harden v. Roberts, 9 C. C. 160. 34 Bosco's Application, 6 Kulp 83. Contra,— Santo Scoto's case, 8 C. C. 344. 35 Mechanics' Bank v. Fisher, i R. 34, Of the Officers of the Court. i8i The supreme court has authority. to appoint a prothonotary for each district who shall have the custody of the seal and records of the court, and shall perform under its direction the duties appertaining to his office.^^ They shall also be ex officio prothonotaries of the superior court, and at each of the other places where this court may sit a prothonotary shall serve ap- pointed by it.'^ The prothonotary of the eastern and of middle district of the supreme court may also appoint a deputy.^* 5. Liability of prothonotary.(d) In Philadelphia, it is provided by statute,^" that the prothono- tary shall be responsible for any loss or damage which may happen by reason of any false or erroneous certificate of search, made or given by him, for a period of five years from the giv- ing of such certificate, not only to the person or persons for or upon whose order such certificate of search was made or given, but also to any person or persons claiming title through, from or under him or them, who may suffer loss by reason of the mak- ing of any such false or erroneous certificate of search. This act repeals the provision of the common law, that a right of action for a tort is not assignable. The law is otherwise, outside the city of Philadelphia.*" 6. Court criers and tipstaves.(e) The judges of the respective courts have power to appoint a crier for the court, and so many tipstaves or constables as may be necessary to attend upon the court; and the said officers are entitled to such compensation, for each day's attendance, as the judges shall allow.*^ By the act of 1905,"° the judges of the su- preme court are authorized to appoint one crier and as many tipstaves as the court may deem necessary in each city and county where the court is held, whose compensation shall be fixed d 2 Vale 4658, 4659. e 2 Vale 4782. 36 April 14, 1834, §7, P- L. 342; 4 Purd. §9, p. 45 10. 37 June 24, 1895, P- L. 213; 4 Purd. §9, p. 4499- 38 May 4, 190S, P- Iv. 384; S Purd. §§8, 9, P- S8S3- 39 13 April, 1872, P. L. 1 140; 3 Purd. §980, p. 2983. 40 Commonwealth v. Harmer, 6 Phila. 90; Siewers v. Commonwealth, 87 Pa. 15. And see Kimball v. Connolly, 3 Keyes 57; Wells v. Cook, 16 Ohio St. 67; Ware v. Brown, 2 Bond 267. 41 Act 14 April, 1834, P. L. 3SS; i Purd. §68, p. 734. 42 April 24, §1, P. L. 306; S Purd. §2, p. 6056. i82 Common Law Practice; in Pennsyi^vania. by the judges. The salaries of the tipstaves appointed by the judges of the common pleas are based on the population of the judicial district in which they serve and range from four hun- dred and eighty dollars to sixteen hundred dollars per annum.*' The duties of the court officers involve the opening of court, keeping the court room, judges' room, law library and jury rooms cleaned, heated, lighted and in a comfortable and con- venient condition for business.** 7. Commissioners to take depositions. The courts of Philadelphia are authorized to appoint commis- sioners, to take depositions, under such regulations as the courts shall deem expedient. They shall have power to administer oaths and aifirmations, to certify affidavits, and take testimony to be read in evidence in any court of the commonwealth.*^ The courts of common pleas and orphans' courts are also empowered to appoint stenographic reporters who are known as official re- porters and hold their positions during the pleasure of the court.** By act of 1907 it was declared to be their duty to take com- plete and accurate notes of the proceedings, evidence and charge, and to transcribe for filing a long hand or typewritten copy ; but this transcription might be omitted in the discretion of the court, with the consent of counsel. Exceptions noted by the stenographer, by direction of the judge, were equivalent to the formal sealing of a bill of exceptions. The stenographer had no authority to note an exception except by direction of the judge.*' 8, Stenographic reporters, their appointment and duties, (f) Every official stenographer shall make from his stenographic notes of any trial or other matter of which a copy may be re- f I Vale 956; 2 Vale 4783. 43 See acts of April 21, 1855. §12, P. L. 267; May 30, iSpS, §§i, 2, P. L. 128; March 5, 1903, §1, P. L,. 9; i Purd. §§3-6, p. 894; April 29, 1909, §1, P. L. 287, s Purd. 5370 44 In re Court Officers, 3 Dist. 196. 45 Acts April 14, 1846, §3, P. L. 329, I Purd. §1, p. 613; May I, 1861, §1, P. L. 578, I Pwd. §7, p. 614; April 28, 1876, §1, P. L. 52, I Purd. §8, p. 614. 46 May I, 1907. P. h. 13s; S Purd. 6050, repealing the act of 1887. See §15 of the act of 1907. For act of May 24, 1887, see 4 Purd. 4463. 47 Ibid. Of the Officers of the Court. 183 quired a correct typewritten copy, and to the filing copy shall attach a certificate in the following form: — "I hereby certify that the proceedings, evidence, and charge are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct trans- cript of the same. "Official Stenographer." And in the case of any trial or proceeding before a court, with- out a jury, shall attach a certificate in the same form, omitting reference to the charge.*^ The transcript shall be approved by the trial judge, if correct, by endorsing as follows : — "The foregoing record of the proceedings upon the trial of the above cause is hereby approved, and directed to be filed. "Judge." The copy thus certified by the official stenographer and ap- proved by the trial judge shall be filed in the proper office of the court, and shall thereafter become a record of the proceedings therein reported; and a copy may be used in any other trial in which the matter therein reported may be material.*' This act also provided for daily transcripts j^" the filing of the stenographer's notes in capital cases,^^ also for his employment in proceedings before a commissioner, examiner, referee, audi- tor, master in chancery and other similar officers,'^ and his com- pensation, repealing the act of 1887 and most of the previous acts on the subject.^^ While those acts were in force many questions had grown out of them. At the outset it may be re- membered that the only way by which evidence could be placed on record for the supreme court was by a bill of exceptions** It was the duty of the trial judge to assure the correctness ot the bill, for his signature was the only certificate of its correct- 48 Ibid, §s, p. 6051. 49 Ibid, §6, p. 6051. so Ibid, §10. 51 Ibid, §11. 52 Ibid, §13. 53 Ibid, §14. 54 Connell v. O'Neill, 154 Pa. 582; Smith v. Times Pub. Co., 178 Pa. 481; Hill V. Egan, i6o Pa. 119; Rosenthal v. Ehrlicher, 154 Pa. 336; Philadelphia v. West Philadelphia Institute, 177 Pa. 37; Yoast v. Beatty, 12 Super. Ct. 219. 184 Common Law Practice in Pennsylvania. ness on which the supreme court could rely.^^ Nevertheless, so the courts held, the judge's signature and seal were not absolutely necessary where the stenographer's notes were filed as a part of the record by the express order of the judge.^^ If a stenog- rapher should die before writing out his notes and no one was able to do this, the evidence might be supplied in the same way as lost or destroyed records.^' Moreover his notes under the act of 1874, might be corrected by the trial judge including the stenographer's report of his charge."* Again, it was held that the supreme court would in a proper case return the record to the court below to afford the judge an opportunity to have the record perfected."^ And his right to thus amend the work of the stenographer from his own notes and recollection existed notwithstanding the statutory provision that the stenographer's notes should be the best evidence in cases of dispute.*" Lastly, it may be mentioned that the signature of the court stenographer to the correction of the "proceedings" was not deemed sufficient.*^ Under this law the trial judge could proceed by either of two methods. The stenographer's notes of evidence, exceptions and the charge when filed of record might be certified by him as cor- rect who might thus declare by formal bills with seal, or he might adopt the stenographer's notes as verity, and so declare by his certificate at the end of the stenographer's report certifying to its correctness as a whole. "^ But the pasting of the signature of the trial judge without his knowledge on the stenographer's notes was insufficient and was good ground for quashing an ap- peal.*^ And when the trial judge stated that the notes of testi- mony were incomplete and failed to approve them in the trans- cript, no assignments of error relating to the evidence could be sustained.** Nor was the signed certificate of the judge to the 55 Ibid. 56 Commonwealth v. Arnold, 161 Pa. 320. 57 Walter v. Sun Fire Office, 165 Pa. 381. 58 Taylor v. Preston, 79 Pa. 436; Toddes v. Hafer, 25 Super. Ct. 78. 59 Wain V. Beaver, 161 Pa. 165. 60 Commonwealth v. Fitzpatrick, i Super. Ct. 518; Commonwealth V. Van Horn, 188 Pa. 143. See Commonwealth v. Morrison, 193 Pa. 613. 61 O'Brien's Estate, 22 Super. Ct. 475; Rothschild's Sons' Co. v. Mc- Laughlin, 12 Super. Ct. 612. 62 Yoast V. Beatty, 12 Super Ct. 219. 63 Yost V. Clark, 25 Super. Ct. 144. 64 Kershner v. Kemerling, 24 Super. Ct. 181. Of the Officers of the Court. 185 correctness of the charge and answer to points adequate where the evidence was necessary to a consideration of all the assign- ments of error.** g. Act of igii. The difficulties growing out of this legislation led the legisla- ture in 1911,'° to make another attempt to define more carefully the duties of the official court stenographer. By this act it is no longer necessary "for the trial judge to allow any exception to any ruling of his ; but upon request of counsel, made imme- diately ssucceeding such ruling, the official stenographer shall note such exception, and it shall thereafter have all the eflfect of an exception duly written out, signed, and sealed by the trial judge.*'^ "Exceptions may be taken, without allowance by the trial judge, to any part or all of the charge, or to the answers to points, for any reason that may be alleged regarding the same in the hearing of the court, before the jury retires to consider the verdict, or, thereafter, by leave of the court; and they shall be thereupon noted by the official stenographer, and thereafter have all the effect of exceptions duly written out, signed, and sealed by the trial judge, at the time of the trial.**'' "The official stenographer shall transcribe the notes of the evidence taken upon the trial of any case, under the following circumstances and these only: (a) When directed by the court so to do; or (b) When an appeal has been taken to the supreme or superior court; or (c) When he shall be paid for a copy thereof by a person requesting himlo transcribe it.**'= "When the evidence in any case is transcribed, it shall be the duty of the official stenographer to lodge the same with the pro- thonotary or clerk of the court, and notify the parties interested or their counsel that the same will be duly certified and filed, so as to become part of the record, if no objections be made thereto within fifteen days after such notice. If objections be made, the matter shall be heard by the court, and such order made regard- 6s Rothschild's Sons v. McLaughlin, 12 Super. Ct. 612; Yoast v. Beatty, 12 Super. Ct. 219. 66 May 11, P. L. 279, Purd. Supp. §§6-12, pp, 257, 258. 66a §1, P. L. 279. 66b §2, P. L. 280. 66c §3, P. L. 279. ; i86 Common Law Practice; in Pennsylvania. ing the same as shall be necessary in order to comport with the occurrences of the trial. If no objections be made, or when, after objection, the transcript shall have been so made to com- port with the occurrences of the trial, said transcript shall be duly certified by the official stenographer and by the trial judge, shall be filed of record in the case, and shall be treated as official and part of said record for the purposes of review upon appeal, and shall be considered as prima facie accurate whenever there- after offered in evidence in the same or any other proceeding, without the necessity of calling the stenographer as a witness to prove the same."""^ "The appellants and appellees, by writing filed and approved by the lower court, may agree that any part of the evidence ap- pearing in the transcript as certified and filed shall be considered as excluded therefrom upon the review of the case by the su- preme court; and, if they cannot agree, the court below, upon motion of appellants and notice to appellee, may order that any pr portion of the evidence may be omitted by appellant in print- ing the transcript for the purpose of review in such case : Pro- vided, however, That appellees may themselves print such evi- dence, which printing shall be at their own expense, unless it be otherwise ordered by the appellate court; or the appellate court may order any part or all thereof to be printed by appellant, whenever said court shall deem it necessary so to do."®® "Whensoever the decision of a court of record shall appear in the proceedings of a case, it shall not be necessary, for the pur- pose of a review of that decision, to take any exception thereto; but the case shall be heard by the appellate court with the same effect as if an exception had been duly written out, and sealed by the court."««' 10. Sheriff and coroner. Sheriffs and coroners are chosen by the qualified electors of each county, at the general election held in such county; they hold their offices for the term of three years from the first Mon- day of January next succeeding, and until their successors are 66d §4, P. L. 280. 66e §s, P. L. 280. 66f §6, P. L. 281. Of the Officers of the Court. 187 duly qualified." But the sheriff is ineligible to a re-election.** They are required by law to give security, by bond and recog- nizance, for the faithful performance of the duties of their re- spective offices.*" The proceedings on a sheriff's bond and recog- nizance will be considered in a future chapter of the work.'" II. Duties of sheriff.(g) The sheriff is, by the common law, the officer to whom all process ought to be directed ; and he cannot be passed by with- out cause; but if there be just cause of exception to him, the prothonotary may direct the process to the coroner.''^ The sheriff, however, is the proper officer to execute all writs, except a case of partiality, or where he is himself the defendant. Thus, if the action be against the sureties of the sheriff for his neglect of duty, it would be improper to trust him with the service of the process, whether original or final. So, too, it seems, that process against the sheriff's sureties, which is not founded on his default or delinquency, should be directed to the coroner. But whether the sheriff be or be not incompetent, by reason of par- tiality, the coroner is bound to execute the process directed to him by a court having jurisdiction, even though such direction be erroneous. The process is not void, but, when issued to the coroner, when it ought not to be, it is aided by the statutes of jeofail, and the obligation of the coroner's sureties comprehends such process, when executed by him.''^ If the sheriff be a party, and there be no coroner in commission, the process may be exe- cuted by any constable of the proper county.''^ Out-going sher- iffs are required by law to hand over to their successors in office, all unexecuted process.^* A sheriff is bound to execute his writ, according to its exi- g 2 Vale 4680, 4686; 7 Vale 21908; Chap. 29, Part VI. 67 Constitution, Art. XIV., §2. If a sheriff die, in the last year of his term, though within three months of the general election, the gov- ernor has no power to fill the vacancy, by an appointment for a longer period than the unexpired term. Commonwealth v. King, 85 Pa. 103. 68 Constitution, Art. XIV., §1. 69 April 21, 1876, P. Iv. 46; 4 Purd. §3, p. 4379.. 70 Vol. Ill, Chapter on scire facias. 71 Rex V. Burridge, 8 Mod. 248. 72 Beale v. Commonwealth, 11 S. & R. 299, 302. 73 Act 20 April, 1850, §19, P. L,. 553. i Purd. §39, p. 729. 74 Act 18 March, 1875, P. L. 27, 4 Purd. §45, p. 4392. i88 Common Law Practice in Pennsylvania. gency, without inquiring into the regularity of the proceedings.'* If an adverse claim be made to goods levied on by him, of such a nature as would raise a reasonable doubt as to the title, the sheriff may call on the plaintiff for an indemnity.'^ And if the plaintiff refuse to respond, the court will enlarge the time for making return to the writ, until such indemnity be given,'' and he is not absolutely bound to levy, even upon a tender of in- demnity ; he may show that the defendant was not the owner of the property, in an action against him for a false return.'* 12. Sheriff of Philadelphia. The sheriff of Philadelphia is a salaried officer ; all fees received by him are to be paid into the county or state treasury, as the case may be.'" His compensation is fifteen thousand dollars per annum.*" He has power to appoint so many deputies and clerks, for the proper despatch of business, as shall be determined by the city commissioners and controller ; for whose misconduct he is responsible, in his official capacity.*^ If any deputy, or other officer appointed by him, shall be guilty of extortion in taking il- legal fees, the court is authorized, by the act of 31 March, 1843,*^ to grant a rule on the sheriff to dismiss said officer, and if the fact be proved, to make such rule absolute, and enforce it by attachment. And it shall not be lawful for him to re-appoint such officer, during his term of service. This act is constitu- tional, and in furtherance of the bill of rights ; it is not a crim- inal proceeding, but in the nature of a civil remedy.*' The pro- cedings must be commenced by a petition from a reponsible party, containing a specification of the charges ; to which an an- swer may be filed.** And no appeal lies from the decree of the common pleas on the merits.*^ 75 Rickertson v. Commonwealth, 51 Pa. 155. 76 Spangler v. Commonwealth, 16 S. & R. 68. See Chap. 29, §108. ■jy Nagle v. Stroh, 4 W. 124. 78 Commonwealth v. Watmough, 6 Wh. 117; Commonwealth v. Van- dyke, S7 Pa. 34- 79 Constitution, Art XIV., §5. 80 Act 21 March, 1876, P. L. 12 ; i Purd. §25, p. 880. 8i Hazard v. Israel, i Binn. 240; Wilbur v. Strickland, I R. 458; Overholzer v. McMichael, 10 Pa. 139. 82 P. L. 122; 4 Purd. §41, p. 4391. 83 Leed's Appeal, 75 Pa. 75. 84 Ex parte Sheriff of Philadelphia, 8 Phila. 266. 85 Leeds' Appeal, 7S Pa. 75. And see Borie's Petition, 8 Phila. 353. CHAPTER VI. Op Attorneys. 1. Power to admit attorneys. 2. Rules of the supreme court. 3. Rules of the superior court. 4. Requirements of acts 1887 and '99. 5. Courts may refuse admission. 6. Admission of attorney from another state. 7. Preparation required of appli- cants. 8. Oath he must take. 9. Fraudulent admission. 10. When does the relation of at- torney and client exist? 11. Acts of misbehavior. 12. His responsibility. 13. Consequences of misbehavior. 14. Disbarment. 15. For what causes. 16. Suspension. 17. And without trial by jury. 18. Duties. 19. Extent of his powers. 20. His authority to conduct liti- gation. 21. His liability for negligence. 22. Transactions in good faith. 23. Payment to an attorney. 24. His authority to compromise. 25. Mistakes. 26. Privileges. 27. Confidential communications. 28. Responsibility for money col- lected. 29. When the statute of limitations runs in transactions with client. 30. Fees. 31. Action for their recovery. 32. Set-off. 33. His lien on client's funds. 34. May receive contingent fee. 35. Agreements of counsel. 36. His manner of treating the court. I. Power to admit attorneys, (a) An attorney-at-law is a person put in the place, stead or turn of another, to manage his matters of law.^ In this state, the two capacities of counsel and attorney are combined.^ By the act of 1806,' "in all civil suits or proceedings, every suitor and party concerned shall have a right to be heard, by himself or counsel, or either of them."* And the act of 1834,° provides, that the a I Vale 2015. 1 3 Bl. Com. 25. 2 Lynch V. Commonwealth, 16 S. & R. 369. 3 4 Sm. L. 330; I Purd. §1, p. 372. 4 The right of a party to be heard by himself or counsel, was origin- ally conferred by the provincial act of 1700, which enacted, "that in all courts, all persons, of all persuasions, may freely appear in their own way, and according to their own manner, and there personally plead 189 I90 Common Law Peacticu in Pennsylvania. judges of the several courts of record of this commonwealth shall respectively have power to admit a competent number of persons, of an honest disposition, and learned in the law, to practice as attorneys in their respective courts. It is not every person indis- criminately, that is capable of exercising the functions of an at- torney ; it is necessary for that purpose, to possess certain quali- fications, and to have conformed to certain regulations, pre- scribed as well by the statute, as by the rules of the court in which he is admitted to practice. The statute provides that no judge of any court of this commonwealth shall practice as at- torney or counsellor in any court of justice in this common- wealth or elsewhere; nor shall any alderman or justice practice as aforesaid, in any case which has been or may be removed from before him, by appeal or writ of certiorari, nor act as agent in any such case;" nor shall any prothonotary or clerk practice as aforesaid, in the court of which he shall be prothono- tary or clerk ; nor shall the register of wills of any county prac- tice as aforesaid, in the orphans' court of the same county. 2. Rules of the supreme court. The supreme court has adopted the following rules concern- ing the admission of attorneys •!! Rule I. No person shall be admitted to practice as an attorney in this court except upon the recommendation of the State Board of Law Examiners. Rule 2. Any applicant for admission to the bar of this court who, on the first Monday of January, 1903, was a member of the bar of a court of common pleas of this commonwealth, and after he shall have practiced therein for at least two years, may be ad- mitted, without examination, upon the certificate of the State Board of Law Examiners; and no such candidate shall be re- their own cause, themselves, or, if unable, by their friends." Franklin's Laws 34. For a remarkable instance of the little regard then paid to the rights of parties in the provisional courts, see Bradford's Trial, for publishing a seditious paper. 2 Haz. Pa. Reg. 55. 5 P. L. 354; I Purd. §2, p. 372. 6 It is a high disdemeanor for a justice to act as agent of a plaintiff in his court. Beyer v. Potts, 14 S. & R. 158; Gibson, J. The judg- ment of a justice in a landlord and tenant case, was reversed on certio- rari, because the justice had signed the notice to quit, as the plaintiff's agent. Wistar v. Conroy, Com. Pleas, Phila. June 1869, 7 Sup. Ct. Rules 1-9. Of Attorneys. 191 quired to advertise or pay any fee for reporting upon his creden- tials. Rule 3. No person shall be registered as a student at law for the purpose of becoming entitled to admission to the bar of the supreme court until it shall have satisfied the State Board of L,aw Examiners that he is of good moral character, and shall have re- ceived an academic degree from some college or university ap- proved for that purpose by the court or shall have passed a pre- liminary examination upon the following subjects: (i) English language and literature; (2) Outlines of Universal History; (3) History of England and of the United States; (4) Arith- metic, algebra through quadratics, and plane geometry; (5) Modern geography; (6) the first four books of Caesar's Com- mentaries, the first six books of the ^neid, and the first four orations of Cicero against Catiline. Every candidate shall pay to the State Board a fee of twenty- five dollars, and upon receiving a certificate recommending his registration and certifying that he is qualified to begin the study of the law, shall cause his name, age, place of residence, and the name of his preceptor, or the law school in which he pro- poses to pursue his studies, to be registered with the prothono- tary of the supreme court for the district to which his county belongs. Rule 4. Candidates for admission, who have spent at least three years after registration in the study of the law, either by attendance upon the regular course of a law school offering at least a three years' course, eight months in the year and an aver- age of ten hours per week each year, or partly in a law school and partly in the office of a practicing attorney, or by the bona fide service of a regular clerkship in the office of a practicing at- torney, shall be eligible to appear for examination for admission to the bar of this court upon complying with the following re- quirements : 1. A candidate must advertise his intention to apply for admission, in a law periodical or a newspaper published within the judicial district in which he resides, and in the Legal Intel- ligencer, once a week for four weeks immediately preceding the date of filing his credentials with the Board. 2. He must file the necessary credentials with the Board in such form as shall be prescribed at least twenty-one days before 192 Common Law Practice in Pennsylvania. the date of the examination and shall pay to the Board a fee of twenty-five dollars. 3. He must file a certificate signed by at least three members- of the bar in good standing in the judicial district in which he has resided or intends to practice, that he is personally known to them, and that they believe him to be of good moral character. 4. A certificate from the dean of the law school or preceptor that he has been regular in attendance and pursued the study of the law with diligence from the time of his registration. Rule 5. Every applicant for admission must sustain a satis- factory examination in Blackstone's Commentaries, constitu- tional law, including the Constitutions of the United States and Pennsylvania, equity, the law of real and personal property, evidence, decedents' estates, landlord and tenant, contracts, com- mercial law, partnership, corporations, crimes, torts, domestic relations, common law pleading and practice, Pennsylvania prac- tice, the Federal statutes relating to the judiciary and to bank- ruptcy, Pennsylvania statutes and decisions and the rules of the Supreme and Superior Courts and of the courts of the county in which the applicant intends to practice. Rule 6. Examination for registration and admission to the bar shall be conducted in writing, and shall be held simultan- eously, after due notice, twice a year, in the cities of Philadel- phia and Pittsburgh. Rule 7. The State Board of Law Examiners shall consist of five members of this bar and shall be appointed by the court. They shall hold office during the pleasure of the court, for a term not exceeding five years, except that of the members of the Board now appointed one shall withdraw at the end of each year, such withdrawals to be made in the order of seniority of admis- sion to the bar. The members of the Board shall serve without compensation, but shall be reimbursed their traveling and other expenses. The Board may, with the approval of the court, ap- point examiners to superintend the conduct of the examinations and to report upon the answers of the candidates, but the mem- bers of the Board shall be responsible to the court for the en- forcement of these rules, and the proper ascertainment of the results of the examinations. The Board may also, with the ap- proval of the court, appoint a secretary and a treasurer, or the same person may hold both offices, and they may pay to each 0]f Attorneys. 193 examiner and to the secretary and treasurer out of the fees re- ceived, and after deduction of the necessary expenses, a reason- able compensation. When application is made for a suspension of the rules in any particular case, the Board of Examiners shall report such application to the supreme court with a recommenda- tion upon the merits. Rule 8. It shall be the duty of the State Board of Law Exam- iners to prepare a paper for gratuitous distribution among in- tending applicants for registration or admission containing de- tailed information as to the subjects of examination. Rule 9. Attorneys from other states, upon presenting satis- factory evidence that they are members in good standing of the appellate court of last resort of the state from which they came ; that they have practiced in a court of record of that state for at least five years, and that they are of good moral character, may be admitted to the bar of this court without examination upon the recommendation of the State Board, provided, that however, that the Board may, in its discretion, require any such applicant to take a final examination. Attorneys from other states, upon presenting satisfactory evi- dence that they are members in good standing of a court of record of the state from which they came, and have practiced therein for at least one year, and that they are of good moral character, may, in the discretion of the State Board, be permitted to take a final examination without previous registration. The State Board of Law Examiners may, in its discretion, permit an attorney from another state, without regard to the period during which he has practiced law in that state, to take a final examination without previous registration in this state, if he shall have served a regular clerkship in the office of a prac- ticing attorney in this state for a period of at least one year prior to said examination. 3. Rules of the superior court. The superior court besides adopting the second supreme court rule has added the following rules :* "Any person desiring to be formally admitted to the bar of this court, who, at the date of his application, shall have been admitted to practice at the bar of the supreme court of this commonwealth and is in good and regular 8 Rules of Super. Ct. 2-5. 13 , ' , 194 Common Law Practice in Pennsyi P- L. S78; i Purd. §42, p. 244. 264 Common Law Practice in Pennsylvania. turn "summoned by leaving a copy at place of residence," is not sufficient, because it does not appear from the return, which of the modes of service, by leaving a copy, was followed.^^^ If the officer be unable to serve the writ in one of the prescribed modes, he must return that fact. There is no prescribed form of a return in such a case ; nihil habet is a good return to a sum- mons, when not served; non est inventus is properly applicable only to a capias.^^* The return is conclusive as to the facts stated therein, in the suit in which it is made; if defective, the sheriff must be ruled to amend it ; '^^ or the court will set it aside, on motion."" But, if good on its face the court, on a motion to set it aside, will not admit extraneous evidence to contradict it ; '" though a judgment will be opened, and the defendant let into a defense, if he show, as an excuse for non-appearance, that the return was false, and that he never had notice of the proceed- ing.^^* If the facts stated in the return be false, the remedy is, by action against the sheriff.^^* A return by the sheriff's general deputy, in the name of his principal, is sufficient; but a return in the name of the deputy- sheriff is insufficient to authorize the entry of a default.^*" "While the decision of Chief Justice Gibson," says Wilson, P. J.,^*^ "that a valid return can be made only by the sheriff him- self,^*^ has been modified,^*^ yet the rule still remains that the re- turn cannot be made in the name of the deputy, and that such a return is insufficient to bring a defendant into court, so as to au- thorize a judgment by default, although such a return may be 233 Weaver v. Springer, 2 Miles 42. A formal defect, however, in the return, as to the mode of service, is waived, unless the objection be promptly made. Cooper v. Maglaughlin, i Pears. 166. 234 Sherer v. Eaton Bank, 33 Pa. 134; Philadelphia v. Cooper, 27 Super. Ct. 552, 554. 235 Zion Church v. St. Peter's Church, s W. & S. 215; Freeman v. Caldwell, 10 Watts 11; Flick v. Troxsell, 7 W. & S. 65. 236 Winrow v. Raymond, 4 Pa. 501; Jeannette Borough v. Roehme, 197 Pa. 230, 232; Fillman's Appeal, 99 Pa. 286. 237 Kleckner v. Lehigh County, 6 Wh. 70; Kennard v. Railroad, I Phila. 41 ; Patton v. Insurance Co., Phila. 396. 238 Kennard v. Railroad, i Phila. 41. 239 Ibid. 240 Emley v. Drum, 36 Pa. 123; Bolard v. Mason, 66 Pa. 138. 241 Kreiling v. Treffinger, 14 Dist. 357, 358. 242 Beale v. Commonwealth, 7 W. 183. 243 Rudy v. Commonwealth, 35 Pa. 166; Emley v. Drum, 36 Pa. 123. Commencement of Actions. 263 amended by the sheriff still in office, if the person making the service and return was, in fact, a legally authorized deputy." The application for leave to amend, should be accompanied by an affidavit of the grounds therefor ; ^** which, if denied, must be supported by depositions ; ^*^ and the amendment will be re- stricted to the grounds so laid.^** An omission of the sheriff to indorse the return, is amendable,^*^ and a return to a foreign at- tachment may be amended.-*^ If the mode of service be irregu- lar, the proper form of the rule is, "why the return should not be set aside," not the service; the service is an act en pais, with which the court have no concern; they can only consider the record.^*^ In such case, the return will be set aside, leaving the writ to stand.^^° A return may be made to the writ, to cure ap- parent irregularities, though several years have elapsed since the return-day.^^^ A return of service of a summons must be full and explicit, and if defective in these regards, it may be set aside on rule and depositions.^^^ It should show a compliance with every statutory essential to the validity of the service.^^' Thus a return omitting to aver the state and county in which the service was made is meagre and open to inquiry on a rule to set the service aside. ^''^ Although a return is prima facie evidence of a good service, this presumption may be rebutted by proof to the contrary.^^' "A proper return should set out a service at the office or a place of business of the corporation in the county, or if not so served then the facts should be affirmatively returned which will bring 244 Lowry V. Coulter, 9 Pa. 353 ; Scott v. Seller, 5 W. 242. 24s Justice Building Association v. Battles, 2 W. N. C. 246 Lowry V. Coulter, 9 Pa. 353. 247 Dewar v. Spence, 2 Wh. 211, 248 Maris v. Shermerhorn, 3 Wh. 13. 249 Patton V. Insurance Co., i Phila. 396. 250 Winrow v. Raymond, 4 Pa. 501. 251 West V. Nixon, 3 Grant 236, see §33. 252 National Bank of Smyrna v. R. G. Chase Co., 17 Dist. 869. Where depositions show that an attested copy of a writ was not served on the defendant or read to him, the service is irregular and the return will be quashed. Lyons v. Mann, 14 Dist. 104. 253 Smith v. Western Maryland Co., 18 Dist. 918. 254 Ibid. 255 Liblong v. Kansas Fire Ins. Co., 82 Pa. 413; Hagerman v. Empire Slate Co., 97 Pa. 534- 266 Common Law Practicu in Pennsylvania. the service within some of the methods prescribed by statute."^'" Service on a deputy who omits to add the words, "deputy sheriff ," but his return is adopted by the deputy, the return is sufficient.^"' Service on "the person for the time being in charge," is con- clusive.^'* More generally the return is conclusive between the parties and will not be set aside on extraneous evidence,^"' nor for falsity when there is no apparent defect.^"" If the return is ambiguous evidence can be heard to explain, not to contradict it.=" Says Chief Justice Mitchell : "While it is still the law that the sheriff's return is conclusive on the parties and cannot be con- tradicted; yet modern practice is liberal in allowing inquiry, into the actual facts where the return itself is not full or explicit." Thus a sheriff's return of process on a corporation stated that the service was made on a "chief clerk," but did not state in what county or state the service was made, or in any way show that he was such a chief clerk as was entitled by the statute to receive service. It was held that the true facts could be shown and if he was a minor clerk the service could be set aside. But no con- tradiction will be permitted of the averment that a true copy of the writ was served.^^^ Furthermore, this rule applies only to 256 Mitchell, C. J., Park Brothers & Co. v. Oil City Boiler Works, 204 Pa. 453, 458., 257 Bennethura v. Bowers, 133 Pa. 332. 258 Penn Valley Creamery Co. v. Martin, 2 Blair Co. 364. 259 Phila. Demokrat Pub. Co. v. Sad Iron Co., 9 Dist. 56; Benwood Iron Works v. Hutchinson, loi Pa. 359; MacGeorge v. Chemical Mfg. Co., 141 Pa. 575; Dietrich v. Sutton, 15 Dist. 621; Ben Franklin Coal Co. V. Pennsylvania Water Co., 25 Super. Ct. 628; Ness v. Markey, 23 York 137; Garrett v. Turner, 47 Super. Ct. 128. 260 Gassel v. Meng., 14 Lane. L. Rev. 73; Eragdon v. Perkins Camp- bell Co., 19 C. C. 305. 261 Benwood Iron Works v. Hutchinson, loi Pa. 359; Benethum v. Bowers, 133 Pa. 332; Walker v. Walker Automatic Steam Coupler Co., 8 Lack. L. N. 125. Judge Bechtel holds however that a sheriff's return may be contradicted in Monologue v. Ashland Borough, 14 Dist. 464, citing Lacock v. White, 19 Pa. 495 ; Mill Creek Road Commission- ers V. Fickinger, 51 Pa. 48; Ziblong v. Kansas Fire Ins. Co., 82 Pa. 413; Park Brothers v. Oil City Boiler Works, 204 Pa. 453. 262 Park Brothers & Co. v. Oil City Boiler Works, 204 Pa. 453, 458; Hudelson v. Lehigh Valley Railroad, 36 C. C. 245 ; Detrich v. Sutton, 15 Dist. 621. On a rule to set aside sheriff's service on a foreign corpora- tion while the sheriff's return showing service on an agent must be held conclusively true, so far as the mere fact of service on the named in- dividual is concerned, not impeachable by extraneous evidence, it is only COMMENCEJIENT OF ACTIONS. 267 matters returned of his own knowledge,^"' and does not apply to facts returned, the truth of which he could only know by hear- say, such as that the defendant is a non-resident, doing business within the county and that the person on whom service was made was his agent.^^* Nor can an officer's return be amended by evidence on certiorari. ^"^ A mere omission to state that the in- sured was a resident of the county where the summons issued did not invalidate a return.^"" When the return is false, the rem- edy is against the sheriff.^^'' 32. Issue of an alias, (x) Nor does the setting aside the service set aside the writ itself. That remains and a second writ, called an alias, may issue thus stopping the running of the statute of limitation.^^* In strict practice, an alias should recite the mandate and return of the former writ; yet, an alias which is a mere transcript of the orig- inal, though docketed as an alias, will be sustained.^*^ An alias is, in general, looked upon as a continuance of the original action ; thus, an alias summons, issued within six years after the original, may be connected with it, so as to save the bar of the statute of limitations,^^" but when judgment is obtained against one of sev- eral joint-debtors, upon whom alone the original is served, it is X 7 Vale 22042. presumptively true, and is open to rebuttal, so far as the real character of the agency and of the office and place of business. Primo.v. Cam- pania Trans-Atlantic de Barcelona, 14 Luz. L. R. 388. 263 Daly V. Iselin, 10 Dist. 193. See this case in 200 Pa. 200. 264 Ibid. 26s Ohio and Pennsylvania R. Co. v. Brittain, i Pitts. 271. 266 Coyle V. Metropolitan Life Ins. Co., 8 Kulp 169. 267 McFeeley v. Hoheim, 25 C. C. 497; Goodwin v. James Wherry Co., 26 C. C. 570- 268 Bennethum v. Bowers, 133 Pa. 332. 269 Davidson v. Thornton, 7 Pa. 128. 270 McClurg V. Fryer, 15 Pa. 293; Logan v. Green, i Pitts. 43; Lynn V. McMullen, 3 P. & W. 170; Insurance Co. v. Haws, 11 At. 107. An alias cannot be engrafted upon an original summons, which has been re- turned "not served, by order of plaintiff's attorney." McCann v. Hosie, i Lack. L. Rec. 19. But, in Philadelphia, it is held that an alias may be founded on an original, not taken out of the office. Herz v. Weil, 2 W. N. C. so. In Bovaird & Seyfang Mfg. Co. v. Ferguson, 215 Pa. 23S, 238, Brown, J., said: "When the alias summons was returned unserved, the original process was continued, but not for a longer period from the return of the alias than the cause of action would have continued if the original summons had not been issued." 268 Common Law Practice in Pennsylvania. irregular, subsequently, to bring in the other joint debtors, by alias, under the act of 1830 ; ^'^ a new suit should be brought against them.^'^ In some cases, such as scire facias, covenant for ground-rent, and actions for personal taxes, in Philadelphia, when the original and alias are both returned nihil, it is equiva- lent to service.^'^ When, however, there has been no return of the original sum- mons, the issuance and service of the alias is not a continuation of the original process, but is in law the beginning of a new ac- tion.^'* Hence, when the original issued within two years after a cause of action accrued for personal injuries, and the alias was not issued until two years after the action accrued, it was barred by the statute.^'^ In such a case the statute must be specially pleaded, and will not be considered on a rule to show cause why a non pros should not be entered.^^" 33. Amendment of return, (y) A sheriff has no authority without leave of court to alter or amend his return after the writ has been delivered to the pro- thonotary, but amendments are often made by judicial sanction, though not if opposed by the officer himself.^'^ The amend- ments allowed are simply corrections or a more complete account of his action, and do not contradict what was actually done ; "^ y 7 Vale 22041. 271 April 12, P. L. 277; 2 Purd. §5, p. 2039. 272 Myers v. Nell, 84 Pa. 369. 273 Warder v. Tainter, 4 W. 270; Chambers v. Carson, 2 W. 365; Taylor v. Young, 71 Pa. 81. 274 Hanks v. Lehigh Valley R., 16 Dist. 550. And it would be im- material whether subsequent proceedings were docketed as in the original or in the alias case. Lynn v. McMillen, 3 P. & W. 170; The Vulcan Dynamite Co, v. Jones, S Kulp 150. To call the second an alias is not alone sufficient to keep alive the action begun by the first one, and will not operate to continue the original process. Hanks v. Lehigh Valley R., 16 Dist. sso, SSI. 27s Hanks v. Lehigh Valley R., 16 Dist. sSo; Morgan v. Clark, 6 W. 528. 276 Barclay v. Barclay, 206 Pa. 307; Hanks v. Lehigh Valley R., 16 Dist. SSO- 277 Deacle v. Deacle, 160 Pa. 206; Vastine v. Fury, 2 S. & R. 426; Maris v. Schermerhorn, 3 Wh. 13; Wilkes-Barre B. & S. Association v. Zeis, I Kulp 153; Hildreth v. Reilly, 2 Kulp 270; Newcomb v. Miner, 5 Kulp 328; Lipewitz V. Siglin, 17 Dist. 655. See §31. 278 Graham v. Furey, 6 W. N. C. 56; Dewar v. Spence, 2 W. 211 j Commencement oe Actions. 269 and may be allowed after the commencement of an action against him for a false return, or even after his retirement from office.^'^ When an alteration has been made the question may arise whether this was done before or after the filing of the return. This is a question of fact to be decided on depositions and other proper testimony by the court to which the return was made.^*" 34. How return may be set aside, (z) The former way of taking advantage of an improper service was by a plea in abatement, and while this may still be done, an improper service may also set aside on rule. Says Chief Justice Mitchell : "The practice of setting aside service on rule has the sanction of predecedents sufficient to save it from being pro- nounced irregular in cases where it reaches the desired end with- out inconvenience or injustice to either party."^*^ But an amend- ment cannot be attacked in a collateral proceeding. ^^^^ EORM OE motion TO SET ASIDE SERVICE. A B C J In the Court of Common Pleas, County, p ■ ] March Term, 1912. No. 100. And now, , 1912, the defendant moves the court to set aside the service of the summons and the return of said serv- ice, and in support of said motion he files the following z 7 Vale 22045. Keeley v. Shanley, 5 Montg. 27; Reiff v. Empire Mutual Life Ins. Co., 2 W. N. C. 383; Lewis Lumber & Mfg. Co. v. Ruggles, 2 Dist. 34; Trinley v. Noble, 20 Dist. ms; Maloney v. Simpson, 226 Pa. 479. 279 Justice Building Association v. Battles, 2 W. N. C. 493; Mangan V. McMonegal, 2 Kulp 310. 280 Deacle v. Deacle, 160 Pa. 206. A justice of the peace can amend a constable's return to accord with the facts but he should note on the return that it was done by him. Leaman v. Lancaster Co. Mutual Ins. Co., 18 Dist. 384. 281 Park Brothers & Co. v. Oil City Boiler Works, 204 Pa. 453, 458, citing Parke v. Commonwealth Ins. Co., 44 Pa. 422 ; Hagerman v. Empire Slate Co., 97 Pa. 534; Hawn v. Penna. Canal Co., IS4 Pa- 4SS; Fulton v. Commercial Travelers' Accident Association, 172 Pa. 117; Bailey v. Wil- liamsport R. Co., 174 Pa. 114; Piatt v. Belsena Coal Mining Co., 191 Pa. 215 i Jensen v. Phila. & S. St. Ry. Co., 201 Pa. 603 ; Lyons v. Mann, 14 Dist. 104. 281a Maloney v. Simpson, 226 Pa. 479. 270 Common Law Practice in Pennsylvania. Reasons. 1. That the return does not set forth that the copy left was a true or an attested copy of the writ. 2. That the return does not state that the writ was served on the defendant personally, or any adult member of his family. (State the reasons according to the facts, and, if the objection do not appear on the record, attach an affidavit.) Indorse : A. B. r ,, ,. , ^ J No. , March Term, 1912. p -p. I Common Pleas. Motion to Set Aside Service. Reasons (and Affidavit). And now, , 1912, rule granted on plaintiff to show cause why the return (or service) in the above case should not be set aside. Rule returnable . Proceedings to stay. ]?0RM OF MOTION TO QUASH. V. I In the Court of Common Pleas, No. i, Philadelphia 1' I County, March Term, 1912. No. And now, , 1912, the defendant moves the court to quash the writ of summons in the above case, and in support of said motion he assigns the following reasons. (Here state the objections.) IV Summons in Real Actions 35. Commencement in real actions. The actions of dower, partition, ejectment, waste, nuisance, and all other pleas of land, may be commenced, either by agree- ment of parties, as in personal actions, or by writ, in any court of the county where the lands or tenements in question are situ- ate, having original jurisdiction thereof. If the tract of land, or other single tenement, which is the subject of controversy, be situated in different counties, the action may be commenced in either of them. But, in such case, if suit be commenced in one of such counties, no other action, between the same parties, for the same cause, can be instituted in any other county, during the pendency of such suit.'^''^ The practice in real actions will be treated in the second volume, under the respective titles ; the sub- 282 Act June 13, 1836, §§79-8i, P. L. 587; i Purd. §§1-3, p. 268. Commencement of Actions. 271 ject of the present chapter will be merely the process for the commencement of real actions, its form, nature, service and re- turn. 36. Service of writ, also on a minor. The form of the writ, its manner of service, and the return, are, in general, the same as in personal actions.^*' But where the defendant is a minor, the service is to be as follows: (i) If the defendant has a guardian of his estate the service is to be made upon such guardian, in the usual manner: (2) If the de- fendant is above the age of fourteen years, service is also to be made upon him, in the same manner as in case of an adult: (3) If the defendant is under fourteen years of age, and has no guardian of his estate, service is to be made, in the usual way, upon his next of kin, residing in the county where the defendant resides. But whenever the defendant shall not have a guardian, it is the duty of the plaintiff, upon or after the day when he might take judgment by default, if the defendant was an adult, and be- fore any plea pleaded, or rule taken in the action, to make appli- cation to the court where the action is pending, for the appoint- ment of a guardian ad litem, unless the defendant has already appeared by the guardian; and upon such appointment being made to give notice to the person appointed. ^^* 37. Appointment of guardian ad litem. To obtain the appointment of a guardian ad litem, present a petition to the court, in the following form : In the Court of Common Pleas No. 4, for the county of Phila- delphia. Adam Jones j Of March term, 1912. v. I No. 750. John Jones and Richard Jones, a minor, j Partition. To the Honorable the Judges of the said Court. The petition of Adam Jones, the plaintiff in this action, respectfully repre- sents: That the above-named Richard. Jones, one of the defend- ants, is a minor, under the age of fourteen years, and has no guardian; that service of the writ in said action has been duly made upon Robert Jones, the uncle and next of kin of said 283 I Purd. §4, p. 268. 284 I Purd. §5, p. 268. 272 Common Law Practice in Pennsylvania. minor, residing in the city and county of Philadelphia, which is also the residence of said minor; that the day on which judgment by default might have been taken against such minor, if he was of full age, had passed. Your petitioner, therefore, prays the court to appoint a guardian ad litem for such minor. And he will ever pray, &c. If the minor be above the age of fourteen years, the petition should state that "service of the writ has been duly made on such minor." The petition should be verified by affidavit; and upon presentation to the court, an appointment will be made, in the following form: "And now, this seventh day of April, 1879, the petition of Adam Jones being duly read and considered, the court, on motion of A. B., Esquire, of counsel, for the plaintiff, appoint Robert Jones guardian ad litem of the said Richard Jones." No- tice in writing must be given to the guardian ad litem, of such appointment. 38. Partition and dower. Service of a summons in partition, on parties resident in the county where the land lies, must be made, personally, or by leav- ing a copy at their place of abode, at least twenty days before the return-day ; and on parties residing out of the county, by publica- tion in such newspaper as the court may direct, for six weeks prior to the return-day.^*° The act of 1836, with respect to service upon minor defendants, only extends to a personal serv- ice; a non-resident minor defendant may be served by publica- tion.^*^ The court is not required, in any way to pass upon the question of title in such non-resident defendant, before making an order of publication.^*' Service of a summons in partition may be made upon the committee of a lunatic defendant.^** If the lands lie in more than one county, service of process in dower and partition, may be made by any sheriff where the real estate to be divided or recovered is situated, or any defendant may be found.^*' 28s Act II April 183s, §4, P. L,. 200; 3 Purd. §10, p. 3408. 286 Girard Life Insurance Co. v. Farmer's and Mechanics' Bank, 57 Pa. 388. 287 Biddle v. Starr, 9 Pa. 461. 288 Snowden v. Dunlavey, 11 Pa. 522. 289 Act 20 February, 1854, P. L. 89. Commencement oe Actions. 273 39. Trespass and nuisance. The act of June 1836,^°° provided that in cases where a trespass or nuisance had been committed by non-residents of the county where the real estate was situated, the sheriff could go beyond his bailiwick into an adjoining county to serve process for the recovery of damages or abating the nuisance, but his authority was limited to the service of process in an adjoining county.^'^ Another section of the same act ''^^ provides for service against a corporation that had committed a trespass. If any of its officers did not reside in the same county, the act provided that the sum- mons might be served on any officer or agent of the corporation at any office or place of business within the county, or if there were none on the president, cashier, treasurer-secretary, or chief clerk in any county or place where they might be found. The act of 1862 ^"^ extended the authority of the sheriff or his deputy to serve such process in any other county, whether adjoining or not, where the lands were. The act of 1901 further provides that in cases of trespass or nuisance on real estate by non-resi- dents of the county where it is situated, the writ of summons may be served in the manner described in the sixteenth section of this chapter and in any other county than that in which the writ issues by the sheriff of such other county who is deputized for that purpose by the sheriff, of the county in which the writ issues.^"* Under this act when a summons in trespass for a nuisance or trespass in real estate is served in a county other than that in which the writ issued, the record must show that the sheriff of the county where the service was made was deputized to serve the writ.2°= 290 June 13, §37, P. L. 572; see note (ss) i Purd. 238. 291 Gaynor v. White, 38 Pa. 300. 292 §42, P. L. 568. This means that a summons shall run beyond the limits of the county and be served on the chief officers of the corpora- tion in any part of the state. Eckman v. Pennsylvania Coal Co., 21 Dist. 18; Lehigh Coal & Nav. Co. v. Lehigh Boom Co., 12 Phila. 540. In Jen- sen V. Phila. & Swarthmore St. R. Co., 201 Pa. 603, the company's entire roadbed was in one county where it also maintained its principal office. Yet a trespass suit was maintained in another county for a cause of ac- tion arising in the first county and a good service was had on the president at his residence in the second county. 293 P. L. 79; see note (ss) i Purd. 238. 294 July 9, 1901, §1, P. L. 616, cl. 3; I Purd. §8, p. 238. 295 Larkin v. Pew, 14 Dist. 880. 18 274 Common Law Practice in Pennsylvania. 40. In actions of waste by mortgagees. By the ninth section of the act of 1901 the remedy provided by the 37th section of the act passed the 13th day of June, 1836, entitled "An act relating to the commencement of actions," was extended to actions by mortgagees for injuries in the nature of waste, that had or might hereafter be committed t© the mort- gaged premises; and the sheriff of the proper county or his deputy was authorized to serve the process in any other, although such other should not be adjoining to the county wherein such real estate is situated. 41. Ejectment, fa) In 1903 ^°* the legislature more broadly enacted that the plain- tiff in writs of ejectment of summons to recover on a ground- rent deed, or to recover any sum charged on real property by will or deed, in a writ of scire facias sur mortgage, or in any writ to charge particular land with the payment of a particular debt run- ning with the land, or some person on his behalf shall file with his praecipe an affidavit setting forth to the best of his knowledge and belief who are the real owners of the land who shall be made parties to the writ and served by the sheriff in the following man- ner: (a) By adding to the writ and serving, as in the case of a sum- mons, all persons, other than those named in the writ who may be found in possession of said land or any part thereof; or, if no one be found in possession thereof, then by posting a true and attested copy of the writ on the most public part of said property ; and, (b) By serving, as in the case of a summons, such of those named in the writ as may be found in the county in which the writ issues ; and, (c) By serving, as in the case of a summons, such of those named in the writ as may be found in any other county of the commonwealth, by the sheriff thereof, who shall be deputized for that purpose by the sheriff of the county in which the writ issues ; and, (d) By mailing a true and attested copy of the writ, in a registered letter, to such of those named in the writ as cannot be served within the commonwealth. a 3 Vale 6907 ; 7 Vale 22036. 296 April 23, P. L. 261, I Purd. §§i6-i8, p. 240. COMMENCEMBNT OF ACTIONS. 275 But if the plaintiff, or some person in his behalf, in an affidavit filed shall aver that he does not know, and has not been able to ascertain, the owners or claimants of the property, or their ad- dresses, or the names or addresses of some of them, then service upon the persons in possession of the property, or posting in de- fault thereof, and service as above set forth upon those who can be served, and two returns of nihil habet as to the rest of those named in the writ, shall constitute a full service of such writ. The act of 1901 affords a complete and exclusive system for the service of a writ of scire facias sur mortgage, and a sheriff's return ought not to be amended to a return of "nihil habet" when it shows that the addresses of the non-resident defendants were known to the sheriff, and the attorney for the plaintiff did not file an affidavit alleging that he did not know the addresses of the defendants.^*' In construing this act it has been held that if the plaintiff fails to file the affidavit required by the act the court may allow him to file it nunc pro tunc provided he acts promptly on discovering his error.^°* Again, if the sheriff finds a stranger in possession he must mention that fact in his return and add his name to the writ ; ^®' furthermore the return ought to show whether the parties served were served as defendants or as parties in posses- sion.^"" If a party in possession who is a citizen of Pennsylvania is added to the writ and served, under the act of 1903, the fact that he disclaims possession will not eliminate him from the controversy and thus permit a removal of the case to the federal court.^"^ Again, a tenant of a single room of an occu- pied house returned by the sheriff as in possession of a part under the statute of 1807 does not represent the owner's pos- session, nor is he tenant in possession who would be bound by the act of 1772 to notify his landlord of the service of the eject- ment, nor would the owner be concluded by the return to the writ.'o^ 297 West Ward Building Association v. Dunn, 16 Dist. 652. See Monges v. Marcus, 14 Dist. 367. 298 King V. Grannis, 27 C. C. 654. 299 Kaufhold v. Burke, 5 Lack. Jur. 223. See Brennen v. Redfern, II Dist. 248. 300 Ibid. 301 Davies v. Willes, 134 Fed. 139. 302 Davidson v. Barclay, 63 Pa. 406. 276 Common Law Practice in Pennsylvania. If the sherifif finds another person in possession than the one named in the writ, he may return an acceptance by that person,^"^ or he may add his name thereto and serve it, and the prothono- tary may put his name on the docket.^"* Such a return will be equivalent to actual service and proof that the person thus found was in possession, and the prothonotary may be com- pelled to enter him as a party defendant.""® An affidavit by the officer who served the writ stating the manner of service is not necessary except in moving for judg- ment by defavilt for want of an appearance,""® but a judgment by default without an affidavit of service is erroneous.""^ Again, judgment for want of an appearance can be entered only under this act and must be taken during the term the default was made,""' but the defendant is not bound to appear or do any- thing until the second term, judgment therefore cannot be taken against him until that time.""' The act of 1836 did not change the practice in this regard,"^" nor has the act of 1901."^^ The return by the sheriff of having served the writ on the defendants marked served by him is evidence that they were in actual possession."^- This provision of the statute embraces all of them,"^" though the return is only prima facie evidence and may be disproved in most cases."^* In an action for mense profits however the return is conclusive evidence that the de- 303 Marshall v. Forest Oil Co., 198 Pa. 83. 304 Nevins v. Southwark Mfg. Co., 15 W. N. C. 344. 30s Ibid. 306 Wolf V. Moyer, 21 C. C. 624. 307 Traer v. Bowman, 3 P. & W. 70; Michew v. McCoy, 3 W. & S. 501 ; Bolard v. Mason, 66 Pa. 138. 308 Tomer v. McFarland, 29 C. C. 513. 309 Vanderslice v. Garven, 14 S. & R. 273; Young v. Cooper, 6 W. N. C. 43. 310 Ellison V. Hammen, Dist. Court, Phila., March 30, 1850. 311 HoflFman v. Hofner, Ms. C. P. No. S Phila. Co., June 7, 1903, No. 1637. 312 Act April 13, 1807, 4 Sm. 1,. 476, 2 Purd. §5, p. 1296. 313 Cooper V. Smith, 9 S. & R. 26; Dietrick v. Mateer, 10 S. & R. 151; Gratz V. Brenner, 13 S. & R. no. 314 Cooper V. Smith, 9 S. & R. 26; Dietrick v. Mateer, 10 S. & R. 151 ; Gratz V. Brenner, 13 S. & R. in; Helfenstein v. Leonard, SO Pa. 462; Kirkland v. Thompson, 51 Pa. 216; Corley v. Pcntz, 76 Pa. 57; Bronson V. Lane, 91 Pa. 153 ; Kulp v. Bovven, 122 Pa. 78. Commencement oe Actions. 277 fendant was in possession when tlie writ was served, but only prima facie evidence that such possession was continued until the service of the habere facias."^^ Again the sheriff's return is prima facie evidence that the defendants are in pos- session only when an affidavit is made thereto.^^^ In the ab- sence of a return of the service of the summons on the defend- ant it is necessary to pi'ove that the defendant was in possession even when there is an appearance and plea.^^' This act, it may be added, does not widen the scope of the statutory proceedings by a scire facias to enforce a mortgage debt that it may now be applied to determine questions of title to real estate. Says Justice Stewart: "The proceeding remains just what it was, a remedy for the collection of a debt; the judg- ment which follows is not and cannot be made a lien upon any land not owned by the mortgagor. The reason which prevailed before the act was passed, to give the terre tenant the right to intervene and denied it to the owner, obtains as much now as then, notwithstanding both are parties — the one may be preju- diced by the verdict, the other cannot."^^* a. In case of land sold for taxes. In the case of lands sold for taxes, under the act of 1824, an actual possession or a constructive possession which results from a purchase at a tax sale, and a subsequent payment of the taxes, is a sufficient title to enable the plaintiff to maintain eject- ment against one who has entered on the land without any right.^'^ And a plaintiff who does not comply with this act relating to the service of the writ cannot invoke the aid on his own behalf.^^" Furthermore this act is still in force and haw 315 Sopp V. Winpenny, 68 Pa. 78. 316 Stahr V. Brown, 6 North. 206; Haupt v. Haupt, 157 Pa. 469. 317 Mclntire v. Wing, 113 Pa. 67; Kreamer v. Vonedia, 24 Pa. Super. Ct. 347; In Lake Winola Assn. v. Mott, i Super. Ct. 304, it was held that the return by the sheriff unaccompanied by an affidavit of service would probably be sufficient evidence of the defendant's possession in a case where the defendant appears and pleads. 318 Excelsior Sav. Fund v. Cochran, 220 Pa. 634, 638. 319 Foster v. McDivitt, 9 W. 34i ; Foust v. Ross, i W. & S. Soi ; Crura V. Burke, 25 Pa. 377; Wheeler v. Winn, S3 Pa. 122, 320 Kreamer v. Voneida, 213 Pa. 74. 278 Common L,aw Practice in Pennsylvania. not been repealed by the act of 1889 as amended by the act of April i903.=''i b. On agent of non-resident. In serving process on the agent of a non-resident as pre- scribed in the act of 1853 the record must show actual service on him ; ^^^ and proof of the notice that must be given must be shown.^^^ The act of 1851 relating to service on non-residents was ex- tended in 1895 to mortgages ;^^* and when the defendant is a non-resident and has not been served in accordance with the requirements of the acts of 1851 and 1858 as amended by the above act, his appearance creates no presumption, that he was in possession of the land.^''^ c. On original covenantor or mortgagor. The act of 1903 further provides that nothing therein con- tained shall affect the practice and manner of service on the original covenantor, provided by the first section of the act of 1840,^^* pertaining to ground rents, nor affect the ancient prac- tice of service on the original mortgagor, by two returns of nihil mabet. 42. Validation of prior service. In all actions heretofore brought, where the writ has been served on the persons in possession of the land charged, or been posted in default thereof, and has also been served upon the real owners or claimants as required by the tenth clause of section one of the act of July 9th, 1901, and there have been two re- turns of nihil habet as to the defendants, covenantors in the ground rent deed, on which the action of assumpsit has been brought, or mortgagors of the mortgage, on which the action of scire facias sur mortgage has been brought, where such defend- ants, covenantors or mortgagors shall have parted with the title to the land charged, and judgments have been entered in such 321 Dull V. Ahls, 14 C. C. 350. 322 Page V. Simpson, 172 Pa. 288. 323 Haslett V. Foster, 46 Pa. 471. See Kreamer v. Voneida, 24 Super. Ct. 347- 324 June 26, §1, P. L. 345 ; 2 Purd. §9, p. 1297. 32s Kreamer v. Voneida, 213 Pa. 74, affg. 24 Super. Ct. 347. 326 April 8, P. L. 249, 2 Purd. §21, p. 1809. For act of 1903, see I Purd. §§i8, 19, p. 241. Commencement of Actions. 279 actions, they shall be as valid for all purposes, as if there had been a full compliance with all the requirements of that section. And any sales made by the sheriff by virtue of writs of execution shall be as valid for transferring the estate of such defendants, or claimants, as if all the requirements of the said section of the act had been executed.^^*^ 43. Affidavit in scire facias sur mechanics' lien. "The plaintiff in any writ of scire facias sur mechanics' claim, or in any other writ to charge particular land with the payment of a statutory lien, other than those provided for in clause tenth, and excepting also claims for taxes and municipal claims, shall file with his praecipe an affidavit, by himself, his agent or attor- ney, setting forth that he has caused inquiries to be made, in the neighborhood of the property, of at least three of those residing upon or nearest thereto, whose names and residences are given and the dates of the inquiries stated, and that he believes the persons named by him in such affidavit are the real owners of said property ; Whereupon all such persons shall be made parties to the writ, which shall be served by the sheriff, by adding to the writ, and serving, as in the case of a summons, all persons other than those named in the writ who may be found in possession of said prop- erty, or any part thereof, or if no one be found in possession thereof, then by posting a true and attested copy of the writ on the most public part of said property; and, (a) By serving, as in the case of a summons, such of those named in the writ as may be found in the county in which the writ issues ; and (b) By serving, as in the case of a summons, such of those named in the writ as may be found in any other county of the commonwealth, by the sheriff thereof, who shall be deputized for that purpose by the sheriff of the county in which the writ issues; and, (c) If all those named in the writ cannot be served, as pro- vided in clauses (a) and (b) hereof, then by mailing a true and attested copy of the writ, in a registered letter, to such of those named in the writ, whose residences are given as without the commonwealth, and by advertising a brief notice of the contents of said writ, once a week for four successive weeks, in one news- 326a I Purd. §§22, p. 241. 28o Common Law Practice in Pennsylvania. paper of general circulation in the county, and in the legal per- iodical, if any, designated by the court for that purpose: Pro- vided, however. That if all those named in the writ have been personally served, or if return registry receipts for the copies mailed are returned by the sheriff with the writ, the advertise- ment above provided for may be dispensed with."^^*''' 44. Scire facias to revive judgment. The writ of scire facias to revive a judgment, in any of the classes of cases mentioned in sections ten and eleven of this act, shall be served as is provided for the original scire facias therein, unless personal service was made upon the defendants in the orig- inal proceedings; in which event two returns of nihil habet to the writs to revive, shall be equivalent to personal service upon the defendants.^^*'' 45. Alias and pluries writs. By the proviso of the act of 1836 in the case of a writ of sum- mons if there shall not be ten days between the issuing and the first day of the term to which it is returnable, the writ may be made returnable on the next day preceding the last day of such term or on the first day of the second term next after the issuing of the writ.^^' In constructing this statute if there are two re- turn-days, "to next term" means the first return-day, and ten days must intervene.^-* A fieri facias is good though a return- day intervene between the teste and return-day.'^* 46. Return-days. If all of those named in any writ cannot be served prior to the return-day thereof, alias and pluries writs may issue in the same suit when required, and be served with the same effect as if full service was made of the original writ. The return of mortuus est shall not be made to any of the writs named in the tenth, eleventh and twelfth sections of this act.''" 326b I Purd. §§24-26, p. 242. 326c I Purd. §27, p. 242. 327 June 13, §30, P. L. 578, I Purd. 39, p. 244. 328 Misho V. McClelland, 20 Pa. C. C. 302. 329 Miner v. Walter, 8 Phila. 571. 330 Act 1901, Purd. §§30, 31, p. 243. A sheriff has been allowed to amend his return in covenant sur ground rent after a judgment by default from nihil habet to mortuus est. Burr V. Dougherty, 8 W. N. C. 175. In another case leave was refused. Clare V. Symington, 15 W. N. C. 401. See Bunting's Estate, 16 W. N. C. 335. Commencement of Actions. 281 47. Bail and appearance. Where damages are recoverable in a real action, and the de- fendant would be liable to arrest in a personal suit, he may be held to bail, or required to give security for the damages and costs; and judgment may be had against him for default of ap- pearance, without other process.^^^ The defendant in an eject- ment cannot be required to give security, for the mesne profits to be recovered in the action, by way of damages. ^"^ 331 Act of 1836, §§8s, 87; P. L. 588; I Purd. §§9, 10, p. 269. 332 Young V. Cooper, 6 W. N. C. 206. CHAPTER VIII. AppBarance, Entry and Opening op a Default. I. Appearance. io. Judgment by default is a con- 1. Appearance. ditional judgment. 2. Effect of an appearance. n. Amendment of judgment. 3. Appearance de bene esse. 4. Several defendants. I"- Opening of a Defauw. II. Entry of a Default. ^^- ^^ '"^^ ''^ "P^"^''" 13. Reasons for opening. 5. Entry of a default^ ^ .^^^^^ ^^ appearance, etc o. When the plamtitt is entitled , „, , , . . , ,. b. Want of a plea, etc. to a default. *' ' 7. Entry of a common appearance. '4. When judgment by default may 8. Who may enter default and for ^e taken off. what. 15- At what time it may be opened. 9. When prothonotary may enter 16. Imposition of terms. judgment. 17. Practice. I. Appearance, (a) It is the duty of a defendant, who has been regularly served, to enter an appearance, either personally, or by his attorney, upon the docket of the prothonotary. The rules of the court provide that appearances shall be entered by a written order endorsed and filed in the prothonotary's office, the time of filing the same to be endorsed thereon and a written notice of appearance shall be given to the opposite party .^ An appearance may be entered in the following form: In the Court of Common Pleas No. i, for the county of Phila- delphia. Adam Tones 1 ^r ,, , ^ ■' (Of March term, 1912, Richard Smith and Thomas Jenkins. ) • 57 • I appear for the defendants (or for Richard Smith, one of the above-named defendants, as the case may be). A. B. Where one appears by attorney, the name of the attorney should be entered of record ; when a party appears in person, it a S Vale 13800, 13802, 13810; 7 Vale 21873. I Phila. rule 30, §1. 282 Appearance, Entry and Opening oe a Default. 283 is only necessary that some act should be done, admitting that he is regularly in court, and bound to answer to the writ : an appeal by a defendant from an award, is such an act f so is the filing of an affidavit of defense in person ;? also the entry of an amicable action.* But the presenting of a petition for the single purpose of setting aside the service of a summons does not constitute a gen- eral appearance or submission to the jurisdiction of the court ;^ nor the entry of an attorney's name on the margin of the docket if a rule of practice of the court requires an entry in the docket f nor a motion by an attorney to set aside a judgment by default.' A formal entry of appearance is not always necessary. An appearance in court personally and by counsel on a motion to dis- solve an attachment and the filing of an answer and demurrer are equivalent to a formal appearance and will prevent judg- ment.* And the filing of an informal affidavit to the plaintiff's claim by the president of the defendant corporation is sufficient to prevent judgment for want of an appearance.® More gener- ally the filing of an affidavit of defense by the defendant is thus effective ;^' likewise the entry of an appeal ;^^ or the entry of bail to the action. ^^ 2. Effect of an appearance. If an attorney enter his appearance, without restriction, oppo- site the names of two defendants, in the docket, this is a good ap- pearance for both, though one of them be not served with pro- 2 Weaver v. Stone, 2 Grant 422. 3 Morton v. Hoodless, i Miles 46. 4 Crosby v. Massey, i P. & W. 229; Jeannette Borough v. Roehrae, 197 Pa. 230, 231. 5 Blair v. Ridge Brothers, 20 Dist. 363. 6 Lyon v. Waldron, 13 S. & R. 164. 7 Cahoon v. HoUenback, 16 S. & R. 425. 8 Myler v. Wittish, 204 Pa. 180. 9 Deskins v. Reverting Fire Assurance Association, 3 Dist. 394. 10 Myler v. Wittish, 204 Pa. 180; McCleary v. Tangascootac Oil & Gas Co., 17 Dist. 634; Philadelphia v. Hopple, 2 C. C. 543; Wister v. Becker, 2 C. C. 103. 11 Seidel v. Hurley, i Wood. 352; Frisholtz v. Quigley, 9 Montg. 213 ; Connor v. Lyon, 13 Super. Ct. 502. See Mahaffey v. Fink, 13 Super. Ct. 534; Jones V. Brown, i Dist. 675; Pyro-Spectacle Co. v. Lincoln Park Co., 6 Dist. 93- 12 McCullough V. Railway Mail Association, 225 Pa. 118, 122. 284 Common Law Practice in Pennsylvania. cess ;^^ and, in such case, there may be a judgment against all of the defendants.^* It is optional, however, with the plaintiff, to treat a general appearance as one only for those defendants who were served ;^^ and, by leave of the court, a general appearance may be restricted to one only of the defendants. ^^ A defendant, not served, has a right to appear; and, in such case, there must be a general judgment against all the defendants who have ap- peared.^' But an appearance to a writ which has been returned tarde venit, is a nullity, unless the plaintiff accept the appear- ance.'* In a suit against husband and wife, not respecting her separate estate, the husband has power to constitute an attorney to appear for both of them.^° So, an appearance by a corpora- tion is binding on the shareholders.^" "If a defendant," says Justice Mestrezat, "wishes to attack the regularity or sufficiency of the service of the writ or question the jurisdiction of the court without submitting to the juris- diction for the trial of the cause on its merits, he may do so by entering an appearance de bene esse for the specific purpose. This is not such an appearance as will authorize the court to take any steps affecting the merits of the cause. The appearance is for the single purpose of attacking the regularity of the proceed- ing and the authority of the court to exercise jurisdiction in the cause. The question thus raised is a preliminary one and should be decided before any further steps are taken. If the decision of the court is favorable to the defendant, he is not in court or subject to its jurisdiction and the merits of the case cannot be inquired into. If on the other hand, the court rules the prelimi- nary question against the defendant, he has one of two courses to pursue. He may rely upon the position he has taken and attempt to sustain it by an appeal to the proper appellate 13 McCuUough V. Guetner, i Binn. 214; Scott v. Israel, 2 Binn. 14s; Hall V. Law, 2 W. & S. 121. 14 Hatch V. Stitt, 66 Pa. 264. See the dissenting opinion of Agnew, J., in 18 Pitts. L. J. 170. 15 Lentz V. Stroh, 6 S. & R. 34; Erdman v. Stahlnecker, 12 S. & R. 325- 16 Jones V. Orum, 5 R. 249; Gerstle v. Grubb, 18 L. I. 173. 17 Mosher v. Small, 5 Pa. 221; Miller v. Warden, 11 1 Pa. 300. 18 Davidson v. Thornton, 7 Pa. 128. 19 Evans V. Meylert, 19 Pa. 402; McCullough v. Wilson, 21 Pa. 436; Morris v. Garrison, 27 Pa. 226. 20 Philadelphia v. Olive Cemetery Co., 6 W. N. C. 238. Appearance, Entry and Opening of a Deeauet. 285 court ; or he may consider himself in court and defend the action on its merits. He is required to select one of the two courses, and having done so he must accept the legal consequences of his action. He cannot deny the jurisdiction of the court, and at the same time take such action to defeat the plaintiff's claim as will amount to an appearance. By taking the latter course he admits himself in court and must abide by its judgment. He cannot deny the jurisdiction of the court and at the same time defend the cause upon its merits which implies a submission to its juris- diction."^^ But when a judgment has been obtained irregularly in a foreign attachment proceeding, the defendant may appear specially for the purpose of presenting objections to its validity without having his action construed as a general appearance.''^ 3. Appearamce de bene esse.(b) By a practice peculiar to the courts of this state, the defendant is allowed to enter an appearance de bene esse, conditionally, that is, if the writ be returned served;" after such an appearance, the defendant may apply to have the writ or service set aside, for his appearance de bene esse was, provided it was a good writ and good service; if the writ and service be good, the party is considered in court, unless, on or before the return, he enter a retraxit of his appearance; an appearance de bene esse is suf- ficient to prevent a judgment by default.^* The practice is, to enter an appearance de bene esse, and ask the judgment of the court as to the legality of the service.== After the return of serv- ice of summons has been set aside on motion of the defendant appearing de bene esse for that purpose, the defendant is out of court, and has no standing to direct the entry of an office judg- ment against the plaintiff.^^ In Philadelphia," Northampton and perhaps in some other b 5 Vale 13803. 21 Blair v. Ridge Brothers, 20 Dist. 363. 22 Locke Regulator Co. v. Dragon Automobile Co., 17 Dist. 159. See Turner v. Larkin, 12 Super. Ct. 284. 23 Bolard v. Mason, 66 Pa. 138. 24 Blair v. Weaver, 11 S. & R. 84; Deskins v. Reverting Fund Asso- ciation, 3 Dist. 394. 25 Winrow v. Raymond, 4 Pa. 501; Bank v. Perdriaux, Bright 68. 26 Everett v. Niagara Ins. Co., 142 Pa. 322. 27 In the new rule, No. IS, the inhibition is omitted because it is so firmly established. 286 Common Law Practice in Pennsylvania. counties a conditional appearance, or de bene esse is not allowed. "Appearances," says Judge Arnold, "according to existing rule of court, are entered by a written order properly endorsed and filed with the prothonotary, and no conditional or temporary ap- pearance de bene esse is allowed."^* One therefore who enters a rule on the plaintiff to show cause of action and why an attach- ment should not be dissolved, signs the praecipe or order with his name as "counsel for defendant," is held as having appeared for defendant, and must file an affidavit of defense. If the defendant desires to move for a rule to show cause of action and at the same time avoid the effect of appearance, he should re- quest the garnishee to make the motion, for on request he not only may, but must do.^° An appearance de bene esse to a rule to quash the writ of sum- mons, which is discharged, will not prevent a subsequent taking of judgment by default of an appearance ; and a general appear- ance must be entered on the discharge of the rule or judgment suffered.*" 4. Several defendants. Where there are several defendants, it may happen, that some are not served, while others do not appear. In such case, the regular mode of proceeding is, to take judgment by default against those served, but not appearing, and to proceed in the cause against those who do appear.'^ It would be erroneous to go on to trial, without first taking judgment by default against the delinquents.'^ Formerly, in the case of a joint contract, by proceeding against the defendants who were served, the plaintiff would have lost his remedy against the other joint contractors, not served; but this has been remedied by legislation,** which reserves the right to recover in a new action against those not originally served. But in a joint action against two defendants 28 Pain's Pyro-Spectacle Co. v. Lincoln Park Co., 6 Dist. 93. See this case for what acts are an appearance. 29 Ibid. 30 See Fisher v. Potter, 2 Miles 147. An appearance to file an affi- davit of defense and argue a rule for judgment is general. Hoffman v. Kramer, 3 Dist. 238. 31 Bennet v. Reed, 10 W. 396; Marshall v. Gougler, 10 S. & R. 164. 32 Nelson v. Lloyd, 9 W. 22; Marshall v. Lowry, 6 S. & R. 281. 33 Acts of 6 April, 1830, P. L. 277; 2 Purd. §5, p. 2039; and 11 April, 1848, P. L. 536; 2 Purd. §9, p. 2040. Appearance, Entry and Opening oe a Default. 287 on a judgment of another state entered by the default against both after service on one only, recovery cannot be had against the defendant who was not served.^* And if the plaintiff omit to enter a default, an appearance at any time is sufficient to pre- vent it. If an attorney appear for the defendant, and plead to issue, and afterwards, by leave of the court, the appearance and pleas are withdrawn, the case stands as if there had been no ap- pearance.^* Again, if a judgment is taken against one of several defendants at a trial for want of an appearance in the presence of attorneys for the defense who have entered a general appearance, they can- not subsequently be heard to object, as their silence at the time indicated that their appearance was not for that defendant.^' 5. Entry of a default.(c) If the defendant do not appear in court, in compliance with the mandate of the writ, he renders himself liable to a judg- ment against him for his default. This judgment is not merely founded on an implied confession of the defendant that the plain- tiff's claim is just, but it is a penalty imposed on him for non-com- pliance with the terms of the summons ; and it is so viewed by the court, in the exercise of its power of opening or setting aside the judgment, to let the defendant into a defense on the merits. A judgment for want of an appearance cannot be entered in an action of replevin;^' in such case, the plaintiff, having filed his declaration, may file a common appearance for the defendant, and proceed in the cause, by ruling him to plead, as in other cases.^' But, on appeal from a justice, a default may be entered for want of an appearance, if the defendant cannot be found, in order to serve a rule to plead.^* A default judgment, especially, if in personam must be dis- tinctly warranted in law and not based on doubtful statutory con- sideration.*" The return must show a good service under the statute made to support a motion for judgment for want of ap- c 5 Vale 13786. 34 Schoeman v. Harris Brothers, 20 Dist. 581. 35 Michew v. McCoy, 3 W. & S. 501 ; Dubois v. Glaub, 52 Pa. 238, 242. 36 McMicken v. Commonwealth, 58 Pa. 213. 37 Crofut V. Chichester, 3 Phila. 457; Ogible v. Bennett, i C. C. Si3- 38 Act April 19, 1901, §5, P. L. 89; 4 Purd. §12, p. 4146. 39 Foelker v. Cunningham, i W. N. C. 444- 40 Amerman v. Pachetti, 24 York 59. 288 CoMkoN Law Practice in Pennsylvania. pearance.*^ Judgment may be taken on the alias writ for want of an appearance if its real nature is shown and that the declara- tion was filed under the original writ.*^ And in the case of an appeal from an alderman it was formerly permissible to treat the transcript as a statement.*^ In cases of scire facias a statement generally is not usual or necessary.^* A return of service not under oath is invalid.*"* 6. When the plaintiff is entitled to a default. The act of 1836,*® provides, that if the defendant shall not ap- pear at the return day, and the officer shall make return that the writ was served ten days before the return-day, the plaintiff, hav- ing filed his declaration, may take judgment thereon, for default of appearance, according to the rules of practice established by the court. And if the writ be not served ten days before the return-day, and the defendant shall not appear, ten days after the service, the plaintiflF, having filed his declaration, may take judg- ment, at a subsequent day in term. Under this act, to entitle a plaintiff to judgment by default, he must have filed his declaration, within the time prescribed by the statute ;" that is, before the re- turn-day.** And a plaintiff is not entitled to judgment for want of appearance under this act unles he has filed his declaration prior to the return day of the writ, notwithstanding a rule of court to the contrary.*" A default cannot be entered, until the expiration 41 Ibid. 42 Vulcan Dynamite Co. v. Jones, 5 Kulp 150. 43 Doerle v. Johnson, 7 Phila. 393. 44 Doerle v. Johnson, 7 Phila. 393; Nathans v. Cummings, i W. N. C. 416; Levy V. Mustin, 3 W. N. C. 220. 45 Hoary v. McHale, 2 Dist. 686. 46 June 13, §33, P. L. 578; I Purd. §42, p. 244. This act is not repealed by the affidavit of defense law. of May 25, 1887, P. L. 271; Saupp V. Flanigan, 7 Dist. 604; Stebbins v. Leidy Township, 13 Dist. 64; Graham v. Blank, 6 Dist. 133. 47 Foreman v. Schricon, 8 W. & S. 43; Black v. Johns, 68 Pa. 83; Graham v. Welsh, 6 Dist. 133; Melloy v. Burtis, 124 Pa. 161; Kohler v. Luckenbaugh, 84 Pa. 258; Dennison v. Leech, 9 Pa. 164. 48 Dennison v. Leech, 9 Pa. 164; Kohler v. Luckenbaugh, 84 Pa. 258; Thomas v. Lance, 3 Luz. L. R. 92; Heister v. Muhlenburg, i Leg. Chron. 61; Kinpacher & Maas Silk Dyeing Co. v. Cole, 16 Dist. 1015; Render v. Wilowski, 34 C. C. 201. 49 Vanormer v. Ford, 98 Pa. 177; Kinpacher & Maas Silk Dyeing Co. V. Cole, 16 Dist. loiS- Appearance, Entry and Opening of a Default. 289 of full fourteen days from the time of service ;=» nor, in case of substituted service, until the expiration of fourteen days from the return-day.^i After three years' delay, a default cannot be entered, without notice.^2 A judgment by default, without filing a declara- tion, though erroneous, cannot be treated as a nullity.^' The proper practice is, to enter a default in the office of the prothono- tary ; it is an office judgment.** This may be done in the follow- ing form: In the Court of Common Pleas No. i, for the county of Phila- delphia. Adani Jones ^ V. > Of March term, 1912, No. 751. Thomas Jenkins. j Enter judgment against the defendant, Thomas Jenkins, for want of an appearance, sec. leg. To C. D., Esq., A. B., Prothonotary. Attorney for plaintiff. 10 March, 1912. Under the act of 1836 therefore to entitle the plaintiff to a default for want of the defendant's appearance, the process must have been served on him ten days before the return-day, and if the record discloses that a summons was not thus served the su- preme court will reverse the judgment.^^ And if the defendant so Association v. Gardiner, 2 W. N. C. 95. 51 Phipps V. Cresson, 2 W. N. C. 334. 52 Hersch v. Groff, 2 W. & S. 449; Phipps v. Cresson, 2 W. N. C. 334- 53 Haven v. Campbell, 4 W. N. C. 216. 54 Sheerer v. Adams, Dist. Court, Phila., 6 March, 1848. Why judgment should not be opened. Per curiam. This was a judgment taken for want of an appearance, which was entered by the plaintiff's attorney, in the office. It has been objected, that it is irregular on that account; we are, however, of a different opinion. It is the most con- venient and proper practice, to take such a judgment, as well as a judg- ment for want of a plea, in the office; the prothonotary is entirely com- petent to see that such a judgment is not entered, where, in point of fact, there is an appearance or a plea. 55 Case v. Hufty, i Dall. 154. See note to Fitzsimmons v. Salomon, 2 Binn. 436; Morrison v. Wetherill, 8 S. & R. 502. A defendant cannot be in default prior to the return day of the process served on him. Likens 19 290 Common Law Practice in Pennsylvania. has had no actual notice of the suit, and the writ does not show when and where it was served, judgment for want of an appear- ance may on motion be stricken off.^* Nor is the plaintiff's right to have judgment for want of appearance affected by the procedure act of 1887, for that relates exclusively to judgments for want of an affidavit of defense.^^ In scire facias proceedings judgment for default of appear- ance may be taken at the same time, and in the same manner, as in the case of a summons.^* In such a proceeding therefore on a mechanics lien after personal service and posting more than ten days before return-day, judgment for want of appearance may be entered four days after return day.^° And if a scire facias is served less than ten days before return-day and the defendant does not appear within ten days after service judgment for want of appearance may be entered on any subsequent day of the term.®" But on two returns of nihil to a scire facias sur judg- ment, judgment cannot be taken by default until ten days after the return-day of the alias."^ After proper service of the process the allowance of the quarto dies post or dies gratiae before the defendant is in default is still the law; consequently a judgment for want of an appearance twelve days after the service of the summons will be set aside.*^ This, however, has been declared to be not a statutory right, which therefore may be denied by court rule.°' V. Conn, 18 Dist. 448. Nor is there any difference in principle between orders and judgments entered by default on rules to show cause and those following writs of summons. Ibid. 56 Kauffman v. Bitting, 2 Wood. 39; Hafleigh v. Winpenny, 2 W. N. C. 138. 57 Stebbins v. Leidy Township, 13 Dist. 64; Humphrey v. Smith, 4 C. C. 169; Marlin v. Waters, 24 W. N. C. 129. But see Graham v. Blank, 6 Dist. 133; also Chap. XIII, §13. 58 Act July 13, 1836, §39 P. L. 578; I Purd. §44, p. 245. 59 Conley v. Zweighft, 20 Pa. C. C. 449. 60 Lessing Building Association v. Lentz, 10 Dist. 257. 61 Bloomsburg Iron Co. v. Lane. 4 Del. 264. 62 VoUmer v. Avondale Marble Co., 10 Dist. 434; Stebbins v. Leidy Township, 13 Dist 64. See Black v. Johns, 68 Pa. 83; Vanormer y. Ford, 98 Pa. 177; Fisher v. Potter, 2 Miles 147; Still v. Howard, 2 Miles 274; Haven v. Campbell, 4 W. N. C. 216. 63 Russell V. Silliman, 1 Leg. Rec. 97. Appearance^ Entry and Opening oe a Default. 291 7. Entry of a common appearance. If the defendants do not appear before the quarto die post, and the plaintiff have not filed his statement, within the time prescribed by law, this does not amount to a discontinuance of the action; the plaintiflf may still proceed, as if he had declared at common law,°* by ruling the defendant to plead,"^ and serving him with a copy of the statement, as prescribed by the rule of court.*® But if the defendant have removed from the jurisdic- tion, or cannot be found, in order to serve him with a rule to plead, the plaintiff's only resource is, to file a common appear- ance, and enter a rule to plead, on or before the quarto die post of the next term, of which the defendant is bound to take notice. Wherever the quarto die post has been abolished by rule of court, judgment may be immediately taken after the return-day pro- vided there has been service on the defendant of the required time. The right to enter a common appearance for the defend- ant was first given by the statute 12 Geo. I., c. 29, which, though reported by the judges to be in force in this state, appears to have been silently adopted in practice. This statute provides, that "in case the defendant shall not appear," within the time prescribed by law, "the plaintiff, upon making and filing an affi- davit of the personal service of such writ or process, may enter a common appearance for the defendant, and proceed thereon, as if such defendant had entered the same." This practice is recognized by the act of 1725,®^ and by the supreme court, in Michew v. McCoy ,°^ in which Chief Justice Gibson says, that a judgment for want of an appearance is unknown to the common law, and can only be supported under the provisions of some statute. The common appearance is entered in the usual form, with the addition of the words "pursuant to the statute." The first rules of the district court, which gave the rule to plead, on four weeks' notice, where the defendant's appearance was re- corded, also provided that rules to declare and plead might like- wise be taken at the settlement of the docket, according to the usual practice.®' And this, it would seem, may still be done, in 64 Foreman v. McFerrin, 13 S. & R. 290. 6s Marberry v. Freno, 3 W. N. C. 563- 66 Phila. rule 30, §6. 67 I Sm. L. 165. 68 3 W. & S. 503- 69 2 Bro. app. 7. . , 292 Common Law Practice in Pennsylvania. case of a common appearance, and judgment taken at the quarto die post of the succeeding term, without further notice; though it would be advisable, to post a notice to plead in the prothono- tary's office.'" 8. Who may enter default and for what.(d) Who may enter a default and for what causes? An affidavit of defense may be filed at any time before entry of judgment; judgment by default therefore entered afterward is bad.'^ Aft objection to entry of final judgment has no basis where it appears that the plaintiff proceeded regularly and judgment was entered for want of sufficient affidavit of defense.'^ If a garnishee fail to answer interrogatories, a judgment by default may be entered in the office without motion.'^ While a justice of the peace may also render judgment by de- fault, his judgment will not be sustained on appeal unless every- thing necessary to sustain the judgment clearly appears, proper service of the writ including the oath of the officer to his return,'* a hearing of the evidence before rendition of judgment, proper appearance of the plaintiff.'^ A void judgment is no judgment, therefore if such a judgment void on its face, is entered in the common pleas on a transcript from a justice's court it will on motion be stricken off.'® But a rule of court providing for judgment by default does not apply to an appeal from a justice's judgment in a case where- d S Vale 13786. 70 See Melchoir v. Ralston, 2 Yeates 154; Jeisley v. Haiter, 4 Yeates 337- 71 Bordentown Banking Co. v. Restein, 214 Pa. 30. See Chap. XIV. 72 Potter V. Graham, 8 Super. Ct. 199. 73 Fisher v. Bleun, 2 W. N. C. 172. 73 Schuetzen Verein v. Schubach, 6 Kulp 136; Neal v. Duncan, 9 Montg. 93- 74 Hoary v. McHale, 2 Dist. 686; Couch v. Heflfron, 15 C. C. 636; Neal V. Duncan, 9 Montg. 93; Knoblauch v. Heffron, 3 Dist. 765. See Enfield v. Hardware Co., 3 Dist. 349; Streuber v. McFayden, 30 C. C. 423; Maines v. Black, 8 Dist. 82; Dunn v. Carney, 16 Montg. 177. 75 Robbins v. Curley, 15 C. C. 428; Rea v. Titman, 14 C. C. 651; Dotendorf v. Vassar, 3 North, 82 ; Clarke v. Viel Hoovus, 7 Kulp 61 ; Neal V. Duncan, 9 Montg. 93; Swartzbaugh v. Lau, I York 207; Court- right V. Harringer, 7 Lane. L. Rev. 30, and other cases. See S Vale 13790. 76 Knoblauch v. Hefron, 3 Dist. 765, in which the authorities are re- viewed. Appearance, Entry and Opening of a Default. 293 in the statement discloses no cause of action." L,ikewise when the plaintiff files an account in accordance with the act of July 7, 1879, he must sustain his claim with testimony, and a judgment entered by the justice for want of an affidavit of defense without evidence will be set aside.'* Lastly, judgment by default by a justice will not be set aside because a notice of a continuance sent to the defendant did not state the hour of hearing if the evi- dence shows that the defendant did not intend to appear.''' 9. When prothonotary may enter judgment. In 1889,*° the legislature further provided "that the courts may, by rule or standing order, authorize the prothonotary to enter judgment upon praecipe for want of an appearance, for want of a declaration or plea, or for want of an affidavit of de- fense, and to enter judgment thereon with the same effect if moved in open court." "But a judgment," says Judge Smith, "for want of sufficient affidavit of defense has never, under the existing practice, been regarded as a judgment by, default. Nor is there any ground on which it can be so regarded."*^ If the prothonotary enters a judgment in default of appearance without the order or intervention of the court, no appeal lies from his action. If improperly entered relief must be asked from the court in which the judgment is entered, if this is de- nied then an appeal may be taken from its action.*^ By Phila- delphia rule of court judgment for default of any kind may be entered by the prothonotary, who shall assess the damages in all cases in which the amount thereof is set forth with certainty in the statement of claim.*^ 10. Judgment by default is a conditional judgment.(e) Again, a judgment by default may be regarded as a condi- tional judgment, especially when a rule of court provides that it e S Vale 13786, 14021, Chap. II, §13. jy Mahaffey v. Fink, 13 Super. Ct. 534. 78 Publishers' Clearing House v. Hoffman, 3 Sch. L. J. 189. 79 Cox V. McGill, IS Dist. 571. 80 April 22, P. L. 41; 2 Purd. §2, p. 2039. 81 Abeles v. Powell, 6 Super. Ct. 123, 128. This case contains a valu- able history of judgment by default. 82 Pettit V. Clever, 210 Pa. 428. 83 Rule 148. 294 Common Law Practice in Pennsylvania. is subject to any order of the court for opening, setting aside or taking off the same.** A judgment affirmed by a higher court may for good reason be opened by the court below. Thus a judg- ment was taken in a cause by default for want of a plea. The court ordered the judgment stricken off, but the superior court reversed the order and the judgment was re-instated. A motion to open it was allowed, and as the affidavit of defense revealed a defense worthy of consideration by a jury the judgment was opened.*^ 11. Amendment of judgment.(e) A judgment by default for a greater sum than is declared for, is erroneous, and cannot be cured by an amendment of the state- ment.** If there be nothing to indicate the amount, it is inter- locutory, in the first instance ; and only becomes final, when the amount is settled and entered on the record.*^ The court may, in its discretion, amend a judgment by default ; and the exercise of such discretionary power will not be reviewed on error.** The time and manner of filing a narr., of appearing and pleading by defendant, and of signing judgment for want of a plea, are matters of practice, regulated by the rules and practice of the court, and any irregularities therein are to be remedied by ap- plication to the court, whose rules of practice are supposed to have been violated; and the person complaining of the irregu- larity must apply promptly for redress.*® 12. It may be opened.(f) A default may be opened, for one or other of two reasons: (i) Because of some formal irregularity in its entry — as, for instance, where the plaintiff has neglected to file his declaration : (2) Because of some good defense, upon the merits of the cause, f 5 Vale 14055- 84 Jackson v. Vanhorn, i Dall. 281; Hinton v. Hort, i Wood. 97; Brandle v. Jones, 2 Wood. 7; Kelley v. Shellenberger, 16 W. N. C. 507; Bright V. McLaughlin, i C. C. 296. 85 Pennock v. Kennedy, 153 Pa. 579; Sweigert v. Conrad, 12 Super. Ct. 108; Doniphan v. S. Morgan Smith Co., 18 York 15. 86 Dennison v. Leech, 9 Pa. 164. 87 Phillips V. Hellings, 5 W. & S. 44. See McCune v. Hogan, 3 Pitts. L. J. 70. 88 Latshaw v. Steinman, 11 S. & R. 357. 89 Crosby v. Massey, i P. & W. 229. See Kohler v. Luckenbaugh, 84 Pa. 258, 261. Appearance, Entry and Opening of a Default. 295 resident in the defendant, which, by his own neglect or careless- ness, or ignorance of the fact of the existence of the suit against him, he has been deprived of the power of setting up, and which, in justice, he ought to have the opportunity of establishing be- fore a jury. In the first case, the default will be set aside for irregularity;^" in the second, the judgment will be opened, to let the defendant into a defense on the merits, leaving the judgment to stand as security.^^ If a default and appearance be entered on the same day, the default will be set aside."^ 13. Reasons for opening. A default will not be opened, as of course; some good excuse must be shown by the defendant.'^ The courts are liberal in opening judgments by default even when the parties or their coun- sel have been neglectful, especially in cases having a good de- fense, but some excuse is required. Thus, for example, though a default has been regularly entered, yet, if the defendant comes into court with the excuse that he was absent from home at the proper time for appearing, he will be permitted to have the judgment opened, upon disclosing a good prima facie defense; so, where a judgment has been entered, and regularly, upon two returns of nihil, the defendant, if he comes before the court with an affidavit of a legal defense, will be given the opportunity of establishing it before a jury. So also, a default will be opened, on an affidavit that the defendant was not served with process.** 90 Saylor v. Morris, 2 Leg. Chron. 231 ; Marshall v. Dennison, 2 Luz. L. R. 87; Stehman v. Wehrly, i Dist. 649; Lawrence v. Rutherford, I Pears 555. See Chap. 25, part VII. 91 In Sheerer v. Adams, Dist. Court, Phila., 6 March, 1848, the court said: — It has been the uniform practice of this court to open even regu- lar judgments by default, where the defendant comes in promptly ex- cuses his default, and shows that he has a defense. Here, the defendant says, he was absent from home at the proper time for appearing; and though he was served before he went away, that he was detained unex- pectedly; he has also sworn to a defense. The plaintiff here has lost nothing; he could not have had a trial; the judgment will stand as se- curity for what may ultimately be recovered; and the defendant must pay the costs of the execution. 92 Peacock v. Keystone Mutual Life and Health Insurance Co., i Pears. 132. 93 McQuillan v. Hunter, i Phila. 49. 94 Doniphan v. S. Morgan Smith Co., 18 York IS ; Tatham v. Austin, I W. N. C. 96. 296 Common Law Practice in Pennsylvania. a. Want of appearance, etc. Default judgments are often opened for want of appearance This will be done on two returns of nihil when justice requires and prompt application is made,'' also, notwithstanding a con- siderable delay which is satisfactorily explained.'^ A judgment entered on a scire facias to revive it on two returns of nihil will be opened on proof that the judgment was twenty years old when the scire facias was issued f likewise a judgment will be opened if the defendant had appeared in court personally and by counsel on the hearing to dissolve the attachment and had filed an answer and demurrer.^® Likewise a judgment of revival by default against a terre tenant will be opened on showing a prima facie case;'* also when appearance is accepted in a suit without serv- ice of summons by an attorney who had no authority to act for the defendant ;'^"° also when one partner has been served and a general appearance has been entered for all the partners at his request, a judgment on verdict subsequently secured against all will be opened on application of the one who was not served.^"^ But a judgment entered for want of appearance will not be opened two years afterward.^"^ Lack of notice of the suit has often furnished good groimd for opening a default judgment. Thus a judgment for want of an appearance at or after the second term is valid in ejectment.^"^ But the court will open it on proof that the defendant was ignor- ant of the existence of the suit.^°* Likewise if the defendant was a resident of another county and never had actual notice of, the summons.'"'' And if a judgment has been entered on a verdict it will be opened for a defendant who was not served and had no notice, notwithstanding a general appearance by an attorney retained by the other defendant.'"" More generally when the de- PS Luzerne B. & Sav, Association v. Engle, 5 Kulp 105. 96 Kelber v. Pittsburg Nat. Plow Co., 146 Pa. 485. 97 Green v. Plattsburg, 13 C. C. 335. 98 Myler v. Wittish, 204 Pa. 180. 99 Swallow V. Ives, 4 Lane. L. Rev. 300. 100 Lawrence v. Rutherford, i Pears. S55- loi Sheriff Mfg. Co. v. Pritsch Coal Co., 44 P. L. J. 218. 102 Stebbins v. Leidy Township, 13 Dist. 64. 103 Patterson v. Mahan, 5 Kulp 355. 104 Ibid. IDS Kauffman v. Bitting, 2 Wood. 39. 106 Percival v. Jones, 5 W. N. C. 273. Appearance, Entry and Opening of a Default. 297 fendant had no notice whatever of the suit and shows a good defense, a judgment will be opened notwithstanding a return of service by the sheriff."*^ Likewise a rule to open a judgment at the instance of the re- ceiver of a defendant company more than a year after the entry of the judgment will be discharged when the allegation of the petition are denied by the plaintiff, and the petitioner has had in his possession for more than a year the books and papers of the defendant from which the allegations of fraud alleged in general terms could have been specifically set forth.^"* Let us consider when a judgment will not be opened. Delay sometimes is a good cause for not acting.^"^ Thus a judgment entered one day too soon will not be opened six years after- ward.^^" A judgment in default of an appearance in foreign at- tachment, regular on its face, will not be opened on an applica- tion made a year after knowledge of its entry, though the defense would have been effective if made in time.^'^ In another case the defendant had not authorized an attorney to enter an appearance for him, but he knew that service had been accepted by the at- torney, and that judgment had been entered by default. The de- fendant could not after two years disavow his action and have the judgment opened. ^^- Again, a judgment for want of an ap- pearance entered on a mortgage on two returns of nihil will not be opened on an allegation of tender after a delay of two years from the time of making it and the entry of judgment.^^^ But judgment may be opened after eight years in a case in which the sheriff's return shows an illegal service of the summons.^^* Besides delay there are many other causes. Thus a judgment will not be opened where the neglect is the defendant's and there is no affidavit of merits i^" nor a judgment against a bankrupt 107 Sanders v. Sanders, 3 W. N. C. 43; Simpkins v. Jordan, 6 W. N. C. 68. 108 Ferguson Co. v. Kidd Brothers, 58 P. L. J. 368. 109 Commonwealth v. Compton, 7 C. C. 262. no Biles V. Harper, 115 Pa. 594, affg. i C. C. 666. See White v. Guthrie, 2 Pa. C. C. 7- 111 Christian v. Pine Knot Coal Co., 2 Leg. Rec. 269. 112 Lytle V. Forrest, 4 Dist. 492. 113 Freemansburg B. & L,. Association v. Billig, 30 Super. Ct. lOl. 114 Stehman v. Wehrly, i Dist. 649. US Hoar v. Weaver, 12 Lane. Bar 144. 298 Common Law Practice in Pennsyi,vania. where there is evidence of a subsequent promise ;^^° nor in an equitable ejectment to enforce the payment of purchase money because no time is fixed for payment ;^^'' nor on the mere sug- gestion that the case involves important questions of law.^^* b. Want of a plea, etc. A default judgment may be opened for want of a plea in some cases, for example, if the default was caused by defend- ant's counsel on account of his professional engagements.^^^ A judgment has been opened where the plaintiff knew that the de- fendant had counsel but served the rule to plead on the defendant himself.^^" Likewise a judgment thus entered will be opened where the defendant files an affidavit showing a good defense, and the application is made before the expiration of the term.^"^ On the other hand a judgment will not be opened for want of a plea where the defendant's attorney shows no excuse for the default ;^^^ or where the defendant for nine months disregarded a rule to employ counsel ;^-'' or where an application to open the judgment is made several months afterward and no good excuse or meritorious defense is shown ;^^* of where counsel employed by the defendant forgot to enter an appearance and after several years the plaintiff properly obtains judgment.^^^ 14. When judgment by default may be taken off. A judgment by default will be taken off if the defendant come into court promptly and gives a good excuse.^^" While no notice of the process is a good excuse,^^'' mere irregularity of service or 116 Kearnes v. Boyle, 36 L. I. 460. 117 Jones V. Langton, 2 Leg. Rec. 240. 118 Boies V. Scranton, i Lack. Jur. 204. 119 Lee V. Kress, 3 Lane. L. Rev. 313. 120 Coulson V. Commonwealth, 13 C. C. 40. 121 Slaymaker v. Bates, 14 Lane. L. Rev. 247. 122 Association v. McBride, 4 W. N. C. 477. 123 Sharif v. Stump, 2 Wood. 441. 124 Letchworth v. Bunting, 12 C. C. 587. 125 Boyer v. Jones, i Wood. 498. 126 Commonwealth v. Huber, 3 Clark 383; SoUers v. Dunbar, i W. N. C. 81; Lewis v. Graham, i W. N. C. 388; Emerson v. Knight, i Phila. 121; Martin v. Hall, i Phila. 233. 127 Phillips V. Lanning, i W. N. C. 149; Sanders v. Sanders, 3 W. N. C. 43; Patterson v. Mahan, 5 Kulp 355. Appearance, Entry and Opening of a Default. 299 in entering the judgment is not sufficient ;^^* nor will a judgment be opened to admit a technical defense ;^''° nor unless a defense on the merits be established."" But a judgment by default against a foreign corporation will be opened when its counsel in conse- quence of illness did not receive the writ from the corporation's agent until after entry of judgment.^'^ And a judgment by de- fault suffered by an executor on a specialty more than twenty years old will be opened on the application of creditors without terms on the allegation of collusion.^^^ A court should deal leniently with garnishees, and open such a judgment if he has a good defense/^^ for example, if obtained by reason of failure of the defendant's counsel to attend to the mat- ter.^^* Likewise when it is shown that the failure to enter an ap- pearance was through an oversight, and that there was no prop- erty in the garnishee's possession.^^^ A default will be opened, to let in a plea of bankruptcy, if excused ;"° and also, it seems, to let in a plea of the statute of limitations, which is no longer considered an unconscionable de- fense.^^' And a judgment of revival, entered on two nihils, has been opened, on the ground of the presumption of payment, arising from the lapse of twenty years. ^^^ But a default will not be opened to let in a plea of infancy, when the defendant was of full age, at the time it was taken.^^^ And the court has no power 128 Gorman v. Hibernian B. & L. Association, 154 Pa. 133; Stuart V. Morgan, 163 Pa. 195. 129 Caldwell v. Carter, 153 Pa. 3I0- 130 Seward v. Mathers, 8 Kulp 330. 131 Rohrer v. Metropolitan Ins. Co., 22 Lane. L. Rev. 67. 132 Nagle V. Groflf, i Clark 366. 133 Hildebrand v. Eckman, 14 L,anc. Bar ^2•, Potts v. Harmer, 19 Super. Ct. 252. 134 Bleiler v. George, 2 Wood. 401. See Oliver v. Metropolitan Nat. Bank, 3 Penny. 74. 13s McFadden v. Millerstown Dep. Bank, 28 Super. Ct. 583. 136 Commonwealth v. Huber, 3 Clark 383. 137' Ekel V. Snevily, 3 W. & S. 273, Gibson, C. J. The court will not open a judgment to try a disputed set-off, which may be subject of an independent suit. Worthline v. Bisbing, I W. N. C. 92. 138 Maitland v. Landis, 1 C. C. 144. 139 Poulson V. Addis, Dist. Court, Phila., 4 Nov., 1848. Why judg- . ment should not be set aside. Per curiam. The defendant appeared by attorney and suffered judgment to be entered against him, for want of affidavit of defense, 24th January, 1848. He was then of full age. A fi. yx) Common Law Practice in Pennsylvania. to open a judgment, entered on a justice's transcript, for the pur- pose of creating a lien, though obtained by default ;^*° the defend- ant's remedy is by appeal or certiorari.'*^ 15. At what time it may be opened, (g) The court has power to open a judgment for default of ap- pearance, after the expiration of the term.'*^ There is no limi- tation of its power to do so; otherwise, irreparable injury might be done to a defendant, who was entirely ignorant that any pro- ceeding had been instituted against him.'*- If the defendant come forward in a reasonable time, and make a proper excuse for his non-appearance, it is the settled practice, to open the judg- ment, and let him into a defense'** A petition to open a judg- ment must set forth the facts which would be sufficient for an affidavit of defense. The mere allegation that the claim set forth in the plaintiff's statement is fraudulent, for example, is insufficient, the fraud facts should be specifically stated.'*" 16. Imposition of terms. In opening a judgment by default, the court has power to impose terms, so as to restrict the defense to the merits, and ex- clude mere technical objections.'*" In one case, where a defend- g 5 Vale 14055- fa. issued; the property was condemned; a vend. exp. and a sale; ana now defendant asks to be let in to take the defense that he was a minor, when the deed was executed upon which the suit was brought. We think he is too late. The judgment is regular; for although the entry on the appearance-docket is simply "copy of ground-rent deed filed," yet the copy filed was endorsed, "'copy of ground-rent and other deeds," and the other deeds were the assignments of the ground-rent. Rule dismissed. 140 Littster V. Littster, 151 Pa. 474; Knoblauch v. Heffron, 3 Dist. 765, reviewing case. 141 Littster V. Littster, 151 Pa. 474, 476; Wilson v. Wilson, 35 C. C. 303- 142 Riegel v. Wilson, 60 Pa. 388; Dean v. Munhall, 11 Super. Ct. 69, aflfg. 20 C. C. 533; Commonwealth v. Howard, 11 W. N. C. 81. 143 Breden v. Gilliland, 67 Pa. 34. 144 Emerson v. Knight, i Phila. 121; Martin v. Hall, i Phila. 233; Watsontown Nat. Bank v. Messinger, 6 C. C. 609; Killian v. Rishell, 16 Dist. 703. 145 Stebbins v. Leidy Township, 13 Dist. 64; School Supply Co. v. Dennison Township School District, 4 Kulp 335; Felleman v. Cassler, 198 Pa. 407. 146 McMurray v. Erie, 59 Pa. 223; Gilliland v. Bredin, 63 Pa. 393; Bailey v. Clayton, 20 Pa. 295. Appearance, Entry and Opening of a Default. 301 ant, after a judgment was opened, put in a plea in abatement, with the general issue, the court struck off the former plea, say- ing that they would have put the defendant on terms, had their attention been called to it; and that they had no doubt of their power subsequently to modify the order.^*^ And when the de- fault is excused a judgment for want of a plea will be opened on terms."* If, however, a judgment be opened, without terms, the burden of proof is on the plaintiff, as in other cases. ^^^ The court may also impose terms as to the payment of the expenses incurred in resisting the motion. ^^" 17. Practice. To obtain the opening of a default, prepare an affidavit, stat- ing, in the first place, an excuse for the default, and then the nature of the defense, which should be positively averred, bvit the evidence to sustain it need not be set forth ; present the affi- davit to a judge in court, or at chambers, who will, in a proper case, grant a rule to show cause, returnable on the next motion- day; of which, notice in writing must be given to the plaintiff's attorney; this rule will be placed by the prothonotary upon the current motion-list ; and on the calling of the list, the rule will be heard, either on the appearance of the plaintiff's counsel to op- pose, or ex parte, on making proof of notice. 147 Maitland v. McGonigle, Dist. Court, Phila., 1848. 148 Flanigan v. Thompson, 4 W. N. C. 741 Brass Co. v. Rudy, 9 W. N. C. 527. 149 Dennison v Leech, 9 Pa. 164; West v. Irwin, 74 Pa. 258; Collins V. Freas, ^7 Pa. 493. 150 Strauch v. Royal Land Co., 5 W. N. C. 473- CHAPTER IX. Of THE Capias ad Respondendum. I. Commencement ok Actions. 1. Nature and form of writ. 2. When it lies. 3. Affidavit. 4. How issued. 5. Service of the writ. Minors. 6. Arrest. 7. Duties of sheriff. 8. When capias will be set aside. 9. When and where sheriff can arrest. 10. How person arrested shall be kept. 11. Escape and rescue. [I. Speciai, Capias. 12. When the defendant is about to quit the state. 13. When the defendant's bail becomes insolvent. III. Oe Bail. 14. Bail defined. 15. Right to hold to bail. 16. Married women. 17. Trespass. 18. Slander. 19. When attorney may be held. 20. Actions on penal statutes. 21. Effect of entering bail for appearance. 22. Double arrest. 23. Rule to show cause of action. 24. Consideration of merits of controversy. 25. Discharge of defendant. 26. When it must be moved. I 37- 38. 39- 27. What affidavit must state. 28. Hearing. 29. Entry of bail. 30. Bond. 31. Return of bond. 32. Bail may be reduced. 33. Exception to bail. 34. Justification of bail. a. Opposition to. b. Effect of failure to justify. 35. Deposit in lieu of bail. 36. Liability of bail. Surrender. Excuse of performance. a. Act of God. b. Act of the law. Bankruptcy. 40. Insolvency. 41. How bail may be relieved. 42. Proceedings against the bail. IV. Return and Liability oe the Sherife, §328. 43. Return of the capias. 44. Effect of the return. 45. Alias. 46. Where some of the defend- ants are not found. 47. Liability of the sheriff. 48. Service of the writ. 49. Return of the writ, so. Bail. 51. Escape. 52. Proceedings against the sher- iff. Commencement of actions by capias. I. Nature and form of writ. A capias ad respondendum is a writ directed to the sheriff, commanding him to arrest the defendant therein named, and hold 302 Op the Capias ad Respondendum. 303 him, until he shall have given bail to appear and answer the suit of the plaintiflf. The form of the writ is prescribed by the act of 1836,^ as follows : [L. S.] County of : The Commonwealth of Pennsyl- vania, To the sheriflf of county, greeting : We command you, that you take , if he shall be found in your baili- wick, and him safely keep, until he shall have given bail, or made deposit, according to law, so that he be and appear in our court of , on the day of next, then and there to answer , in an action of debt [or as the case may be], in our court of , at the suit of , or until the said shall, by other lawful means, be discharged from your custody; and have you then there this writ: Witness , president of said court [or as the case may be], the day of , a. d. . , Prothonotary. The statute further provides, that whenever the cause of action shall be founded upon an injury done to the person or property of the plaintiff, by a person whose name is unknown to him, or upon a fraud practiced by such person, to the prejudice of the plaintiflf, the plaintiff may, upon affidavit of the fact, have a writ of capias against such person, without naming him; but such writ shall be executed by the officer only under the plaintiff's di- rection, and at his risk; and the officer, upon making the arrest, must inquire the name of the party arrested, and, if given, must insert the name in the writ ; after which, the case proceeds in the ordinary mode.^ 2. When it lies, (a) Since the passage of the act of 1842, to abolish imprisonment for debt, and subject to the privileges from arrest, already no- ticed,^ a capias ad respondendum can only issue, in actions in form ex delicto ; in actions on promises to marry ; in actions for fines and penalties ; in actions to recover moneys collected by any public officer ; and in actions for any misconduct or neglect in of- fice, or in any professional employment. In cases of fraud, the proceeding must be by warrant of arrest (which will be subse- a I Vale 1488. 1 June 13, P. L. 573. i Purd. §47, p. 246. 2 P. L. 573, I Purd. §47, P- 246. 3 Chap. VII. §§3-1 1. 304 Common Law Practicb in Pennsylvania. quently considered), not by capias.* In other words since the passage of this act the use of a capias ad respondendum is lim- ited to cases of pure tort.' A capias will lie in an action to recover damages for a tort,^ though the plaintiff might have waived it and sued on his con- tract,' or trespass for an assault and battery,* or for the negli- gent use of an electric storage battery by a physician,' or slander where the charge is of a gross nature,^" or against public offi- cers,^^ or against agents for the misappropriation of money or property,^^ or against the treasurer of a building and loan asso- ciation for embezzlement by the receiver,^^ or in any case involv- ing a breach of trust, — for example, an attorney who neglects to pay over money collected for his client,^* in which the offender may be attached as for a contempt." But a capias will not lie in any case arising from contract,^* even though the defendant is about to depart without leaving behind him property sufficient to satisfy the plaintiff's demand ;" nor against a constable for neglecting his duty in serving pro- 4 Bowen v. Burdick, 3 Clark 226; Gallager v. Norcross, 7 Phila. 623. 5 Holznagel v. Keenan, 15 Luz. L. R. 2; Carroll v. Simons, 27 C. C. 29, and cases there cited. 6 Sedgebeer v. Moore, Brightly, N. P. 197; Zeller v. Katzengrah, 12 C. C. 4SI. 7 Hopper v. Williams, 2 Clark 448. 8 Moll V. Witmer, 11 W. N. C. 498. 9 Drumm v. McTaggart, 3 Dist. 367. 10 A. B. and C. B., his wife v. R., 4 W. N. C. 185. 11 Commonwealth v. Evans, 74 Pa. 124. 12 Hopper V. Williams, i Clark 379; Commonwealth v. Keeper of County Prison, 11 W. N. C. 267; Hirsch v. Simpson, 40 L. I. 4; Emerson V. Dow, II W. N. C. 270. 13 Woomer v. Stanley, 18 Lane. L. Rev. 277. 14 Wills V. Kane, 2 Grant 60, but see Howard v. McKee, 82 Pa. 409; Potts V. Gebb, 8 W. N. C. 359. 15 Chew's Appeal, 44 Pa. 247; Tome's Appeal, 50 Pa. 285; Pierce's Appeal, 103 Pa. 27 ; Church's Appeal, 103 Pa. 263 ; Wilson v. Wilson, 142 Pa. 247; In re Garis, 185 Pa. 497. 16 McCauley v. Salmon, 14 Phila. 131; Nebenzahl v. Saberlowitz, i Luz. L. R. 595; Commonwealth v. Robinson, 3 Justice 174; Hammer v. Ladner, 17 Phila. 315; Wilt v. Welsh, 6 W. 9; Penrose v. Curren, 3 R. 351 ; Collins v. Hogg, 19 Dist. 975 ; Nelson, Morris & Co. v. Hill, 89 Fed. 477- 17 Blanco v. Bosch, 3 W. N. C. 171- Of the Capias ad Respondendum. 305 cess;^' nor against one for injuries caused by the negligence of a servant ;^^ nor for fraud in the sale of property;^" nor for fraudulently inducing the making of a contract ;^^ nor can an agent be arrested for fraud or misconduct;-^ nor for the payment of costs when the action or judgment was based on contract ;^' nor in trespass when the action is for a sum of money held by the defendant;^* nor for a master's ieef^ nor for money received by an executor on a judgment recovered against a trustee for the testator, as this was not received in the line of professional em- ployment f^ nor for the enforcement of a trust,^' and if the orig- inal cause of action arose out of tort, but is barred by the stat- ute of limitations, a subsequent promise to pay cannot be en- forced by a capias.^* Even if a plaintiff has an election to bring an action ex delicto for a debt contracted fraudulently he cannot begin it by capias and thereby deprive the defendant of any sub- stantial privilege or defense.^^ 3. Affidavit, (b) In the absence of a rule of court, a capias may issue without b I Vale 1471. 18 Griffin v. Davis, 3 Lack. L. N. 41. See Mellick v. Osterstack, 3 North. 83. 19 Carroll v. Simons, 27 C. C. 29. 20 Cornog V. Delaney, 11 W. N. C. S75; Hammer v. Ladner, 17 Phila. 315 ; Phila. Coal Co. v. Huntzinger, 6 W. N. C. 300. 21 Bowen v. Burdick, 3 Clark 226; Sedgebeer v. Moore, Brightly, N. P. 197; Gallagher v. Norcross, 7 Phila. 623; Hobson v. Anderson, 19 W. N. C. 360; Buck V. Usner, 7 Pa. C. C. 292; Bard v. Naylon, 33 W. N. C. 251- Contra, — Eager v. Radley,i Phila. 47. 22 Phila. Coal Co. v. Huntzinger, 6 W. N. C. 300; Carnog v. Delaney, II W. N. C. 575; Hammer v. Ladner, 17 Phila. 3x5. 23 Huggs Estate, i Clark 237 ; Scott v. The Jailer, i Grant 237 ; Com- monwealth V. The Keeper, 2 Phila. 153; Beidler v. Howell, 8 Phila. 273; Cochran v. Gowen, 9 Phila. 299; Gilchrist's Estate, 6 Luz. L,- R. 57; McCain v. Jewell, 24 P. L. J. 185; Peterson v. Geary, 3 C. C. 49; Fetters V. Barker, I Dist. 448. 24 Dunn V. Laughran, 9 Kulp 179. 25 Calhoun v. Calhoun, 6 C. C. 177. 26 Emerich v. McDevitt, 19 C. C. 53. 27 Church's Appeal, 103 Pa. 263. 28 Murphy V. Elder, 4 W. N. C. 212. 29 Bowen v. Burdick, 3 Clark 226; Bager v. Radley, i Phila. 47; Phila. Coal Co. v. Huntzinger, 6 W. N. C. 300; Carnog v. Delaney, 11 W. N. C. 575. In Carroll v. Simmons, 11 Dist. 47, Judge Arnold, after stating 20 3o6 Common Law Practice in Pennsylvania. first filing an affidavit of the cause of action. Formerly such an affidavit was required as a condition precedent to the issue of the capias by sections four and five of the act of 1836, but these sec- tions were two years afterward expressly repealed. The defend- ant, however, is entitled to summary relief by a rule on the plain- tiff to show cause of action, and why he should not be discharged on common bail, and in this hearing the plaintiff must be pre- pared with a full affidavit of the facts of the case.'" The court also has power under section nine of the act of 1836 to inquire into the cause of action, quash the writ, reduce bail, or discharge the defendant as the interest of justice may require, but cause must be shown why such action should be taken.'^ 4. How issued. The writ issues from the office of the prothonotary, on the praecipe of the plaintiff, or his attorney, which should specify the amount of bail required, and which must be indorsed on the writ, for the guidance of the sheriff. The following is a form of praecipe in trespass vi et armis : In the Court of Common Pleas for the County of Philadelphia. Joseph Thomas, ^ v. >- Of March term, 1912. Adam Smith. ) how the practice of commencing actions by a writ of capias grew up, says that the practice became so common to issue a capias in almost all kinds of actions, instead of confining it to those accompanied with force, that the legislature intervened, and, by the act of March 20, 1725, i Sra. L. 164, enacted that no freeholder of this province for two years, having fifty acres of land, well situated, with twelve acres thereof cleared and improved, or a dwelling-house, or unimproved land worth fifty pounds, shall be arrested or a capias ad respondendum, unless he is about to leave the province, or conceals himself, etc. This act was superseded by the act of June 13, 1836, which was repealed, and the act of 1725, revised by the act of April 14, 1838, §2, P. L. 458. Under the act of 1836 a special capias could be issued during the pendency of an action on an affidavit that the defendant is about to quit the commonwealth without leaving suf- ficient real or personal estate to satisfy the plaintiff's demand. But the act of July 12, 1842, P. 1,. 339, put an end to the special bail in all cases to which that act extends. 30 Fetterall v. Miller, i Del. 286; Finn v. Teeter, i Lack. Jur. 31; Holznagel v. Keenan, 15 Luz. L,. R. 2 ; KilcuUen v. Sheridan, 4 C. P. Rep. lOI. 31 Holznagel v. Keenan, 15 Luz. L. R. 2, June 13, §29, P. L. 577, i Purd. %^2, p. 251. Of the Capias ad Respondendum. 307 Issue Capias in Trespass vi et armis : Bail $500 : returnable the first Monday of March next. A. B., To C. D., Esq., Attorney for plaintiflE. Prothonotary. 16 Feb., 1912.^^ It is provided by rule of court that all writs of capias ad re- spondenum must be specially allowed and bail fixed by one of the judges, and shall be founded upon an affidavit of the cause of action, filed with the praecipe for the writ.^^ The sureties also required at the commencement of actions shall be approved by the prothonotary, subject to an appeal to the court.^* In all actions in the nature of trover and conversion, the affidavit to hold the bail shall fully set forth the circumstances under which the defendant has possessed himself of the goods ; the particulars of which they consist ; and the value of them ; and in what manner the defend- ant has converted them to his own use.'^ The deponent must swear positively to a conversion; or to an unqualified refusal to deliver the chattels, on demand, which is evidence of it.'* 5. Service of the writ. Minors, (c) The act of 1901 '^ provided more specifically for the service of the process. It "may be served by the sheriff of the county in which it is issued, in any one of the following methods : (a) By arresting the defendant, other than a minor or married woman, and holding him to bail, or committing him to jail for want thereof ; or, (b) If the defendant be a minor or married woman, or if from any cause the defendant is liable to arrest but is not arrested, then by serving the writ as in case of a summons ; in which event the cause shall proceed with the same effect as if a summons in tres- pass had been duly served, and in that case, if the defendant was c I Vale 1468. 32 An attorney should never file a praecipe, or any other paper, with- out a date. He will be sure to find out the advantage of this, in the course of his practice. 33 Phila. Rule No. 28. 34 Phila. Rule No. 31. 35 Phila. Rule No. 29. The rule renders obsolete the cases of Carey v Henry, 2 Miles 295 and George v. Graham, i Phila. 69. 36 Newall V. Stiles, Dist. Court, Phila., 2 February, 1850. 37 July 9, P. L. 616, I Purd. §12, p. 240. 3o8 Common Law Practice in Pennsylvania. liable to arrest on the original writ but was not arrested, alias and pluries writs may issue at any time prior to final Judgment in the cause, and the defendant may be arrested by virtue there- of, with the same effect as if arrested on the original writ." This act, says Justice Mestrezat, "made no change in the form of the writ provided by the act of 1836, nor prevented the issuing of the writ in proper cases against an infant. It simply provides the manner in which a writ of capias ad respondendum shall be served on an infant. The writ cannot be served as formerly by arresting and taking him into custody and requiring him to find security for his appearance, but the service is made by serving the writ as in case of a summons."'* When, therefore, such a writ against a minor for assault and battery is regularly issued by a court of competent jurisdiction, the writ cannot be quashed because the plaintiff, instead of having the writ served as a sum- mons, fixes an amount of bail and notifies the father of the in- fant of his action, and the father under fear of his child's arrest enters the bail demanded, for an original writ can be quashed only when it is irregular, defective or improper.^' The regularity of the service of a capias cannot be questioned after the defend- ant has entered bail.*" 6. Arrest, (d) The capias may be sued out on the very return day, and the defendant be arrested on the same day, after the rising of the court.*^ And as we have seen,*^ in certain enumerated cases, the sheriff may go out of his bailiwick, and make the arrest in an- other county. If the defendant be a prisoner in confinement in the county jail, a copy of the writ is to be delivered to the de- fendant, by the officer, and another copy is to be left by the officer, with the jailer, and thereupon such writ operates to detain the defendant, after the other causes of his confinement have ceased, in like manner as if he had been arrested and imprisoned by vir- tue of such writ.*^ The mode of proceeding where the defendant d I Vale 1455. 38 Powell V. Perkins, 211 Pa. 233, 236, revg. 13 Dist. 310. 39 Ibid. 40 King V. Embrey, 5 W. N. C. 97. 41 Cashee v. Wisner, 2 Bro. 245. 42 Chap. VII. §19. 43 Act of 1836, §36, P. L. 578, I Purd. §60, p. 250. Of the Capias ad Respondendum. 309 is a lunatic has already been considered.** If bail be not de- manded, the praecipe should be marked, "no bail required ;" this is to be indorsed on the writ, which is then to be served like a summons, and the defendant must subscribe a note to the pro- thonotary, empowering him to enter an appearance; which sub- scription is to be attested by the officer. The officer, having received special directions from the plain- tiff, or his attorney, either in writing or by parol, is bound to ar- rest the defendant, if he be found within his precinct. For a re- turn that the defendant cannot be arrested, or, that the' precept cannot be served, for resistance can never be justified, inasmuch as the officer in the execution of such process, may command the posse comitatus;*^ for the same reason, an officer, when he has once arrested, must, at his peril, retain the defendant. It is 44 Chap. VII, §25. The act of June 10, 1901, P. L. SS4, 2 Purd. §§63, 64, p. 2401, also provides that in all actions of proceedings in partition, and in all other actions and proceedings whatsoever, either at law, in equity or in the orphans' court, whenever it shall appear to the court that any of the defendants or respondents therein is a lunatic and has no committee, it shall be lawful for the plaintiff or petitioner therein to serve all writs, process, bills of complaint or citations upon one or more of the next of kin of such lunatic; and if no committee be appointed under existing laws, it shall be the duty of the plaintiff or petitioner upon or after the day upon which he might take judgment or decree by default, against defendant or respondent if he were of sound mind, to make ap- plication to the court in which action or proceedings are begun for the appointment of a committee, ad litem, for such lunatic, and such appoint- ment being made, to give notice to the person appointed; and thereafter all writs, process, bills of complaint, citations, rules and pleadings shall be served upon such committee, and such service shall be as effectual as though made on a committee regularly appointed under existing laws. The committee, ad litem, shall have full power to accept service of the bills of complaint and other process, rules and pleadings, or waive the issuance of the same or time of service, and in partition proceedings to accept a purport or refuse to accept the same, to enter into recognizances, to bid at sales, and purchase the whole or any part of the real estate that is being portioned. 45 2 Inst. 193, 453. Bac. Abr. Sheriff, N. 2. In case of resistance, by a defendant, to a constable, in the service of a capias ad respondendum for debt, issued by a justice of the peace, under the act of 20 March, 1810, the constable may raise the power of the county for his assistance, in the same manner as the sheriff may do, on writs of mesne process to him di- rected, and a person refusing to assist the constable, when required, on resistance being made, is indictable for such refusal. Comfort v. Com- monwealth, S Wh. 437. 3IO Common Law Practice in Pennsylvania. presumed, however, that in both cases, were the officer overcome by the actual force of the defendant, he would be liable to nom- inal damages pnly.*° An infant cannot be served as formerly by arresting and tak- ing a minor into custody and requiring him to find security for his appearance, but the service is made by serving the writ as a summons.*' Unless this mode is observed, no other mode is a service, and the defendant is not compelled to obey the command of the writ. But the writ itself is not invalidated by improper service, and therefore cannot be quashed. The sheriff, however, or the plaintiff's counsel are responsible to the defendant for the illegal or improper use of the writ.** 7. Duties of sheriff, (e) If the defendant be known, or can be easily ascertained, the officer must arrest him, upon the mere direction of the plaintiff. If otherwise, and there be a question as to the identity of the defendant, the plaintiff is bound, as in the attachment of prop- erty, upon demand, to point him out, and to indemnify the of- ficer against the consequences of a mistake.*' Should there be several persons, of precisely the same name and occupation, in his precinct, and the officer be unable, by any means, to ascertain which is the defendant named in the writ, the safest return for him to make would be, that he did not know upon whom to serve, for a return of "non est inventus" would be false.'" If the writ is served on the wrong person, the proper practice is to take a rule to show cause why the person improperly served should not be discharged on common bail, and not to take a rule to set aside the service.'"^ If the writ describe the defendant by a wrong name, unless he be known as well by that given him as by his true one, the officer cannot arrest him; if he do, the defendant may not only plead in abatement, but may also maintain an action of trespass against the officer for false imprisonment;"*^ in one e I Vale 1477. 46 Howe's Prac. 151. 47 Powell V. Perkins, 211 Pa. 233, revg. 13 Dist. 310. 48 Ibid. 49 Marsh v. Gold, 2 Pick. 285. 50 Murfree on Sheriffs, §155. 51 Lisansky v. Gerzog, 2 Dist. 220. 52 Cole V. Hindson, 6 T. R. 234; Shadgett v. Clipson, 8 East 238; Rex V. Surrey, i Marsh. 75. Of the Capias ad Respondendum. 311 such case the court discharged the defendant, upon motion."* The difference between the names, however, must be a material one ; for when there is only an inaccuracy in the spelling, so that the name is still idem sonans, the rule does not apply."* 8. When capias will be set aside. (f) The service of a capias will be set aside where the defendant is decoyed into the jurisdiction for the purpose of serving it."" But the regularity of the service cannot be questioned after the defendant has entered bail."* An undue delay of a month in making application to have the service set aside will operate as a waiver of the right."' g. When and where sheriff can arrest, (g) Except in the cases specially provided for by statute, the sher- iff can only make the arrest within his bailiwick."* It cannot be made on Sunday; the service of civil process on that day being prohibited by the act of 1705;"^ and if a person be detained against his will, on Sunday, to be served with process on Mon- day, the arrest will be void."" An actual touching of the de- fendant's body, does not seem to be absolutely necessary to con- stitute an arrest; for, if the defendant submit himself to the ar- rest or be completely in the power of the officer, it is sufficient ; as, if an officer come into a room, and tell the defendant that he ar- rests him, and lock the door, that is held to be an arrest.*^ If the defendant resist, some touching of the body is necessary; but if he submit, it can be dispensed with.°^ f I Vale 1479. g I Vale 1477. 53 Wilks V. Ljorck, 2 Taunt. 400. 54 Ahitbol v. Benedetto, 2 Taunt. 401. 55 King V. Erabrey, 5 W. N. C. 97 ; Hevener v. Heist, 9 Phila. 274. 56 Ibid. 57 Bailey v. Elcock, i York 123. 58 Williams v. Gregg, 7 Taunt. 233; Devenege v. Dalby, Doug. 369; Borman v. Bellamy, i T. R. 187; Willis v. Penchill, 5 Bos. & Pul. 167. 59 I Sm. L. 25, 4 Purd. 4484. 60 Lyford V. Tyrrell, i Anstr. 85. 61 Wilson V. Jones, Cas. T. Hard. 301 ; Genner v. Sparks, 6 Mod. 173, 2 Hawk. P. C. ch. 19, §1. Whether an arrest has actually been made, becomes a question of importance, in case of a subsequent rescue or es- cape. 62 McCracken v. Ansley, 4 Strob. i. 312 Common Law Practice in Pennsylvania. The act of 18420^ has been amended by the act of 1885," which provides that the arresting officer may arrest the person named in the warrant in any county and bring him before the judge who issued the warrant and keep him in custody until he is duly discharged. But the warrant must still issue, as in the original act, in the county where the cause of action arose, that is, in the jurisdiction where the defendant can be legally sued, or the judgment has been entered.*^ While the statute enlarges the power of the arresting officer,** the offender must be brought be- fore the judge who issued the warrant, another judge of the same court has no jurisdiction to discharge him.°^ No man can be arrested in his own house, provided the outer door be shut; but if the outer door be open, the officer, having gained admittance, may break open an inner door, to arrest the defendant;** and if a man let out part of his house, reserving for himself and occupying an inner room, an officer entering through the outer door of the house, being open, may break open the inner door to arrest him.*® Yet, he cannot break open the inner door of the house of a third person, on suspicion that the defendant is there, in order to arrest him.'" But bail may break open the outer door of their principal, in order to arrest, as may a sheriff, to take a prisoner who has escaped from arrest.'^ An officer, generally known as such, is not bound to show his writ, before he serves it ; but after service, or when the defendant has submitted to the arrest, if the defendant demand it, and not otherwise, he is bound to make known the cause of the arrest.'^ A special deputy, however, and perhaps, a newly-appointed of- ficer, also, ought to show the writ before executing it." The re- fusal of the officer to show his writ, when bound so to do, will 63 June 12, P. L. 339, i Purd. ^77, p. 253. 64 July 8, P. L. 269, I Purd. §82, p. 256. 6s Halpin Green & Co. v. Kimball, 9 Kulp 405; Miller v. Summers, 13 Super. Ct. 127; Weber v. Oldenburg, 27 W. N. C. 371. 66 Weber v. Oldenburg, 27 W. N. C. 371. 67 Morch V. Raubitschek, 159 Pa. S59, affg. 33 W. N. C. 567. 68 Lee v. Gansel, Cowp. i ; Haggerty v. Wilber, 16 Johns 287 69 Ibid. 70 Johnson v. Leigh, 6 Taunt. 246. 71 Nicolls V. Ingersoll, 7 Johns. 156. 72 Blatch V. Archer, i Cowp. 63; Crowther v. Rarasbottora, 7 T. R 654; Bac. Abr. Sheriff, N. i; Mackalley's Case, 9 Co. 66; Commonwealth V. Field, 13 Mass. 321 ; Counties of Rutland's Case, 6 Co. 53. 73 Bac. Abr. Sheriff, N. i. Of the Capias ad Respondendum. 313 not make him a trespasser ab initio; but the service, in such a case, may be set aside for irregularity.''* The sheriff cannot give a deputation in blank to the plaintiff's attorney, so as to enable the latter to appoint a person to serve the writ.''^ 10. How person arrested shall be kept. When the defendant is arrested, by virtue of any writ, process or warrant, it is unlawful for the officer to take or convey him to any tavern, or other public victualing or drinking house, or to the private house of the officer, without the prisoner's voluntary consent; or, with his consent, to keep him above twenty days at either of those places; or to demand or receive, directly or in- directly, any greater sum of money than is allowed by law, for the arrest, or waiting till the prisoner shall have given in an ap- pearance or bail, as the case shall require, or agreed with the person, at whose suit or prosecution he shall be arrested, or until he shall be sent to the proper jail; or to take any reward, grat- uity or money, for keeping the prisoner out of jail ; or to receive any greater sum of money, for each night's lodging, or for a day's diet, or other expenses, than what shall be allowed as rea- sonable, in such cases, by some order to be made by the justices of the respective courts of common pleas, at some court to be held for such place where the arrest may be.^* And in all cases of imprisonment for debt, the plaintiff or plaintiffs are liable for the boarding and jailer's fees, from the time of the commitment, if the defendant shall make affidavit that he is unable to support himself; and the sheriff or jailer may recover the same as debts of similar amount are by law recoverable.'"^ 11. Escape and rescue. If the sheriff, after arresting the defendant, suffer him to go at large, without bail, he is liable in an action for an escape ; so, if he did not arrest him, when he might, and had him in view. But in an action for an escape on mesne process, the sheriff may set up any defense that the defendant could have made ;'* the plain- tiff can only recover the actual damages sustained.^* And where a defendant, arrested on mesne process, is rescued, as he is going 74 Thomas v. Pearce, 2 Barn. & Cress. 761. 75 Western Iron Co. v. Phelps, 23 P. L,. J. I97- ^(> Act of 1729-30, §14, I Sm. L. 186, 2 Purd. §29, p. 1906. 77 Act 16 July, 1842, P. L. 395, 2 Purd. §35, p. 1908. 78 Fitler v. Beckley, 2 W. & S. 458. 79 Shuler V. Garrison, 5 W. & S. 455- 314 Common Law Practice in Pennsylvania. to prison, the sherifif piay return the rescue, and it is a good de- fense to an action for an escape.^" II. Special capias. 12. When the defendant is about to quit the state. Where a personal action, in which the defendant is liable to ar- rest, has been commenced by summons, and the defendant is about to quit the commonwealth, without leaving sufficient real or personal estate therein to satisfy the demand, the plaintiff, on making affidavit of such fact, and of his cause of action, may have a special capias against the defendant, in the form prescrib- ed by the statute.^^ And if one of two joint defendants is about to quit the commonwealth without leaving sufficient real or per- sonal estate therein to satisfy the demand, a capias may issue against both.^^ Since the passage of the act of 1842, such writ cannot be issued in an action ex contractu ;^^ but the plaintiff may still have this special remedy, in an action of trespass, on making the requisite affidavit.^* A special capias, however, may be is- sued for injuries to personal property.*'^ The name of the de- fendant must appear in the body of the affidavit.^^ 13. When the defendant's bail becomes insolvent. The statute further provides, that whenever any person, who shall have become bail for the defendant in any action, shall, pending the same, assign his effects for the benefit of creditors, or make application for the benefit of the insolvent laws of this commonwealth, or give bond for such purpose, or shall remove from this commonwealth, or signify an intention so to do, it shall be lawful for the plaintiff in such action, to require the de- fendant, by a rule to be entered by the prothonotary, as of course, in term-time or vacation, to find additional bail, and in case of his default, to issue a special writ of capias against him, reciting briefly the circumstances, and detain him thereon, until he shall 80 Cro. Eliz. 868; Cro. Jac. 419, 3 Lev. 46; Str. 434, Gilb. C. P. 23. For the law of escape in civil cases, see 26 Am. L,. Reg. 345. 81 Act 13 June, 1836, §§24-27, P. I,. 576, i Purd. §67, p. 251. 82 Ex parte Overick, 3 Wh. 175. 83 Nebenzahl v. Saberlowitz, i Luz. I,. R. 595; Blanco v. Lauradon, 3 W. N. C. 171. 84 Borckman v. Rick, i Leg. Gaz. 22. 8s Prigg V. McCarty, 6 Luz. L. J. (N. S.) 131. 86 Hunt v. Lesh, 6 Dist. 290. Of the Capias ad Respondendum. 315 comply with such requisition. Every such rule shall be entered, after an affidavit, of the fact upon which it is grounded; it shall stipulate that three days' notice thereof be given by the plaintiff to the defendant, unless other notice shall be directed by a rule of court, and shall otherwise be subject, in all respects, to such restrictions and regulations as the court shall make in that behalf. The proceedings on a special capias, after the issu- ing of the writ, are the same as in other cases. 14. Bail defined, (h) Bail has been defined, an undertaking of a man's friends, be- fore certain persons for that purpose authorized, that he shall appear at a certain day, and answer any legal charge to be exhib- ited against him. Bail in civil cases is the means of giving liberty to a prisoner, and, at the same time, securing the extent of the law to compel satisfaction to his creditor. The right of the plain- tiff to exact substantial bail from the defendant depends upon two considerations : ( i ) Is the defendant privileged from ar- rest ? for, if so, his arrest is clearly unlawful, and he is entitled to an absolute discharge. (2) If not so privileged, is he, neverthe- less, entitled to be discharged, upon giving merely nominal secu- rity, or, as it is termed, to be discharged upon common bail ? If both these questions must be answered in the negative, the plain- tiff may require substantial bail, and not otherwise. The ques- tion of privilege is to be determined by counsel, before the adop- tion of the form of process, and has already been discussed.*^ The question, whether, having been lawfully arrested, the de- fendant may be required to enter bail, can arise only after the ar- rest, and is raised by a rule taken by defendant, requiring the plaintiff "to show his cause of action, and why the defendant should not be discharged on common bail." We shall discijss here, first, the right to hold to bail, and then, the mode of pro- ceeding under the rule. 15. Right to hold to bail. Since the act of 1842, abolishing imprisonment for debt, bail is demandable only in actions ex delicto, and in cases within the exceptions of that statute, namely, suits for fines and penalties, for breach of promise of marriage, for moneys collected by a public officer, or for misconduct or neglect in office, or in any h I Vale 1484. 87 Chap. VII. §§3-1 1. 3i6 Common Law Practice in Pennsyi^vania. professional employment,'* or for a tort not founded on con- tract/^ for, whenever it is thus founded, the remedy is by warrant of arrest.®" One who has declared himself a bankrupt by the law of an- other state or country, though he has not received his discharge, can be held to bail in this state by a creditor who has proved his debt in the foreign court.*^ But a defendant who has obtained his discharge in insolvency in another state will be discharged on common bail."- And when the defendant is discharged under the bankrupt laws of a state or of the United States, the bail is relieved without the surrender of the principal."^ i6. Married women. Formerly a capias in trover could not lawfully issue against a married woman even if she lived apart from her husband;'* and if both were arrested and after judgment then bail was surren- dered and they were sent to jail, she could be discharged on a habeas corpus f^ nor did the married woman's act of 1887 change her privilege from arrest for torts committed during cover- ture;®" nor can a husband be held to bail for his wife's tort;®' nor can he be held to bail for slanderous words spoken by his wife not in his presence, nor with his knowledge and consent;®* nor can a married woman be arrested on a capias in a civil action for tort during coverture, even though her coverture be concealed and she carries on business under an assumed name.®® On the other hand the defendant will not be discharged on common bail in an action of trespass vi et armis for breaking the 88 P. L. 339. I Purd. §77, p. 253. See §2. 89 Eager v. Radley, i Phila. 47. 90 Bowen v. Burdick, 3 Clark 226; Philadelphia Coal Co. v. Huntzin- ger, 6 W. N. C. 300. 91 Gorgerat v. McCarty, i Dall. 366. 92 Hilliard v. Greenleaf, 2 Yeates 533. 93 Commonwealth v. Huber, 3 Clark 383; Hare v. Moultrie, 2 Yeates 43S- 94 Commonwealth v. Keeper of County Prison, 2 C. C. 310. 95 HoUinger v. Bennett, 2 Lane. L. Rev. 181. 96 Whalen v. Gabell, 120 Pa. 284, affg. 4 C. C. 187; Vocht v. Kuklence, 119 Pa. 365. 97 Reader v. Rosendale, 21 W. N. C. 153. 98 O'Connor v. Welsh, 29 W. N. C. 92. 99 Commonwealth v. Keeper of County Prison, 11 W. N. C. 341, over- ruling Dunning v. Dow, 15 Phila. 185. Of the Capias ad Respondendum. 317 plaintiff's offices and committing depredations therein;^"" nor when the plaintiff has not declared within a year for the defend- ant can himself speed his cause ;^"'^ nor when there is a sufficient case to go to the jury;^"^ nor when a suit was brought by a re- ceiver without leave which was afterwards obtained nunc pro tunc;^"' nor will a capias be quashed when the motion is made several days after the defendant has obtained a rule to show cause of action which has not been heard. ^''* 17. Trespass. In trespass, the general rule is, that bail is not demandable, be- cause there is no standard by which damages can be measured.^°° But to this there are exceptions; one is, where the defendant is about to depart out of the jurisdiction of the court; another is, where there has been a violent battery, in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident from a view of the wounds, that considerable damage must have been sustained. There are also other exceptions, as, where it is presumable that large damages will be given, because the subject may have been discussed in an action against others for a similar trespass.^"* But when a bond is given to the com- monwealth in an action of trespass begun by capias ad responden- dum in the form prescribed by the statute,^"^ the mere voluntary addition of a confession of judgment with a waiver of exemp- tion, stay of execution and inquisition, will not invalidate the bond, nor will such provisions be treated as nullities.^"^ Bail is generally demandable in actions in the nature of trover;^"' but where the tort is barred by the statute of limitations, a subsequent 100 Rowe V. Newton, s C. C. 325. loi Hind V. Thompson, 2 Miles 345. 102 Waters v. CoUot, 2 Dall. 247. 103 Woomer v. Stanley, 18 Lane. L. Rev. 277. 104 Green v. Bonaffon, 2 Miles 219. IDS Hopper v. Williams, 2 Clark 448. 106 Duffield V. Smith, 6 Binn. 304. 107 I Purd. §51, p. 248. 108 Commonwealth v. Keenan, 228 Pa. 276. 109 "In all actions in the nature of trover and conversion the af- fidavit to hold to bail shall set forth the circumstances under which the defendant obtained the goods in dispute, a particular description of them, and their value, and in what manner the defendant has converted them to his own use." Phila., Rule 10, §2. 3i8 Common Law Practice in Pennsyi^vania. promise to pay will not render the defendant liable to be held to bail."" affidavit to hold to bail, trespass, breaking into a dwelling, etc. A. B. ^ C. D. and E. F. J City and County of , ss.: A. B., the plaintiff, having been solemnly affirmed according to law, affirms and says : That heretofore, to wit, on the day of A.D. C. D. and E. F., with force and arms, unlawfully broke into and entered the dwelling-house of said A. B., situate and being in the county of Philadelphia; and with force and arms unlawfully broke the door of deponent's said dwelling-house (describe all the acts complained of), and other wrongs to de- ponent then and there did, whereby deponent hath been greatly injured and otherwise sustained damage, to wit, to the amount of dollars. Affirmed and subscribed before me, 1 AFFIDAVIT TO HOLD TO BAIL, DECEIT, FRAUD. A. B. "^ CD. J City and County of , ss.: A. B. having been duly sworn according to law, doth depose and say: That on the day of A.D. at the city of Philadelphia, C. D. obtained from this deponent dollars of the moneys of the deponent by fraud and false pre- tenses. On the day and year aforesaid the said C. D. had a certain horse which he knew to be diseased and unsound ; and for the purpose of defrauding deponent out of dollars the said C. D. then and there falsely, fraudulently, knowingly, and deceitfully represented to deponent that said horse was sound; and by means of such deceitful, false, and fraudulent representa- tion deponent was induced to purchase said horse and pay said C. D. therefor the sum of dollars ; whereas, in truth and no Murphy v. Elder, 4 W. N. C. 212. Of the Capias ad Respondendum. 319 in fact, the said horse was then and there unsound and diseased, and was so known to be to the said C. D., and by reason of such unsoundness and disease the said horse was useless and of no value, and deponent was injured to the amount of dollars and upward. The said C. D. is about to leave the city. Sworn to and subscribed before me, ) 18. Slander. In slander, bail is not demandable of course ;^^^ but the court will hold to bail, if the plaintiff swear positively to special dam- age, although the amount of damage be not speciiied.^^^ But the court will uniformly discharge a defendant in slander, on com- mon bail, unless special damage be alleged,^^^ or the words charge the plaintiff with a crime of a gross nature,^^* or the defendant is about to leave the state.^^® Bail may be demanded in actions for deceit,^^® libel, malicious prosecution, conspiracy or false im- prisonment ; but an affidavit of the cause of action must be filed, before the issuing of the writ.^^' FORM OF AFFIDAVIT TO HOLD TO BAII< FOR SLANDER. A. B. V. CD. City and County of , ss.: A. B., on oath, says that he has been for many years a sales- man and has resided in Philadelphia upward of years. Deponent further saith that C. D., on or about the day of at Philadelphia, spoke of and concerning deponent in the presence and hearing of a number of persons the fol- lowing false, scandalous, and malicious words. "He (deponent) set fire to a dry goods store in Louisville, Kentucky, and left there without paying his (deponent's) debts." Thereby mean- ing to charge deponent with the crime of arson and with def raud- 111 Jack V. Shoemaker, 3 Binn. 285. 112 Charles v. Holmes, i Bro. 297; Campbell v. Gilmore, 10 Lane. Bar 37- 113 di Scuillo V. Pucinni, 12 Dist. 702. 114 McCauley v. Smith, 4 Yeates 193; Scott v. Crum, i Pears. 196. 115 Scott V. Crum, i Pears. 196. 116 Sedgebeer v. Moore, Brightly N. P. 197; Eager v. Radley, i Phila. 47; Tryon v. Hassinger, i Clark 184; Hopper v. Williams, i Clark 379. 117 Phila. Rule 9, §23. 320 Common Law Practice in Phinnsylvania. ing his creditors. Deponent further saith that both of said charges are untrue, and that he has never been guilty of said offenses, or either of them, or been heretofore suspected of the same. Deponent has sustained, by reason of the grievances above mentioned, loss to an amount exceeding $i,ooo in business and character. Sworn to and subscribed before me, ) ig. When attorney may be held. An attorney who collects money for a client, and neglects to pay it over, is within the exception of the act of 1842, and may be held to bail, in an action of assumpsit; it is difficult to con- ceive any more gross neglect in a professional employment, than the making use of a client's money, after collection; hardly any palliating circumstances for such act can be imagined.^^* So also, a special agent for the collection of claims in favor of the com- monwealth, is within the excepting clause of the act ; it embraces all persons who, by authority of law, are intrusted with the re- ceipt of public moneys, through whose hands money due to the public, or belonging to it, passes, on its way to the public treas- ury, by whatever name or title they may be designated in the law authorizing their appointment, and whether the service be special or general, transient or permanent.^^* 20. Actions on penal statutes. The defendant cannot, in general, be held to bail in an action on a penal statute, for it is a maxim, that every man shall be pre- sumed innocent of an offense, till he be found guilty.^^" There- fore the defendant cannot be held to bail in an action to recover a penalty for violating the liquor laws.^^^ But in an action on a remedial statute, as for money won at play,"^ or on a horse- race,"' the defendant may be held to bail."* And such cases are expressly excepted from the operation of the act of 1842. So 118 Wills V. Kane, 2 Grant 60. 119 Commonwealth v. Evans, 74 Pa. 139. 120 Gilb. C. P. 37; United States v. Mundel, 6 Call (Va.) 245. 121 Commonwealth v. Schweitzer, i North. 375. 122 Act 22 April, 1794, §9, 3 Sm. L. 181, 2 Purd. §9, p. 1779. 123 Act 17 February, 1820, §4, 7 Sm. L. 24s, 2 Purd. §8, p. 1842. 124 Turner v. Warren, 2 Str. 1079; Bristow v. James, 7 T. R. 259. Of the Capias ad Respondendum. 321 also, of an action for breach of promise of marriage ; but the affi- davit must state a demand and refusal.^^° 21. Effect of entering bail for appearance. A prisoner who enters bail for appearance in court thereby waives any illegality and irregularity in his arrest,^^' though such action on his part is not a waiver of his right to have the writ abated.^^' But the entry of special bail is a waiver of defects in the form of the capias.^^* 22. Double arrest. It is a general rule, that a defendant shall not be twice held to bail, for the same cause of action, unless under very special cir- cumstances ;^^' nor in two places, at the same time.^^° And, there- fore, a defendant who has been arrested and held to bail, in an- other state, for the same cause of action, and on the charge that the debt was fraudulently contracted, cannot be arrested in this state, under the act of 1842.^^^ A defendant will not be held to bail a second time, for the same matter, though the form of action be changed.^^- But where bail was not demanded in the former suit, the defendant may be held to bail in a second action.^'^ So, where, through inadvertence or mistake in the plaintiff's affidavit, the defendant has been discharged from a former arrest, and there appears no actual oppression or design to harass, the court may, in its discretion, allow the defendant to be held to bail in a second action.^'* It is not every discontinuance that will disable a plaintiff from holding a defendant to bail a second time; that 125 Parke v. Bolivar, Dist. Court, Phila., 20 January, 1849. 126 Commonwealth v. Baird, 21 C. C. 488; Stout v. Quinn, 9 Super. Ct. 179; Commonwealth v. Blair Co. Jail Warden, 8 Dist. 139. 127 Desuian v. Zefcak, 22 C. C. ^^. 128 Myers v. Gery, 10 Lane. Bar 89. 129 Clark v. Weldo, 4 Yeates 206. See Robinett v. Pollard, 2 Miles 99; Butter worth v. White, 2 Miles 141. 130 Bingham v. Wilkins, Crabbe 50; Hernandez v. Carnobeli, 4 Duer 642. 131 Farmers & Mechanics' Bank v. Crane, 27 L. I. 197. And see Clark V. Weldo, 4 Yeates 206. 132 Koons V. Patterson, i Phila. 288. 133 Field V. Colerick, 3 Yeates 56. 134 Butterworth v. White, 2 Miles 141. And see Parasset v. Gautier, 2 Dall. 330. 21 ■ . , , , 322 Common Law Practice in Pennsylvania. will depend on the circumstances of vexation attending the case.^'" 23. Rule to show cause of action. If the defendant conceive that substantial bail should not be exacted of him, he should, at an early day after his arrest, take a rule upon the plaintiff to show his cause of action, and why he, the defendant, should not be discharged on common bail. And if there be no affidavit to hold to bail, or if the affidavit be de- fective or insufficient in any particular, the proper way to take advantage of this, is to take out such rule. The power of the courts to inquire into the cause of action, to quash the writ, with or without costs, to reduce the amount of bail, or to discharge without bail, are the same under the act of 1836 as before.^'° Even where an affidavit to hold to bail has been filed with the prothonotary, previously to taking out the writ, the defendant, in order to obtain his discharge without bail, or to obtain a reduc- tion of the amount of bail, must cite the plaintiff to show his cause of action.^" FORM OF RULS. A. B. > V. >C. P. No. I, Dec. Term, 1912, No. CD. J And now (date), on motion of L. M., pro defendant, rule entered on plaintiff to show cause of action and why defendant should' not be discharged on common bail. Returnable (date). 24. Consideration of merits of controversy. The merits of a controversy will not be considered on a mo- tion to discharge a defendant on common bail further than the 13s Doane v. Penhallow, 1 Dall. 220; Shippen, P. J. And see Robinett V. Pollard, 2 Miles gg. 136 P. L. 577, I Purd. §72, p. 251. 137 And this privilege so to cite the plaintiff, may be asserted in the case of attachments of the property of an absent debtor, and the court will inquire into the cause of action, in the same manner as is done in cases of capias, as the abuse of process may be as great, and the neces- sity of providing against a wanton and groundless seizure of the de- fendant's effects, as obvious. In the case of specific articles attached, a stranger's ship, or other effects, may be taken out of his hands, and de- tained for such a length of time, as to ruin his voyage and embarrass his affairs beyond redress. So, in the case of debts attached, his property Oi THE Capias ad Respondendum. 323 mere act of showing reasonable ground for action ;"' and the de- fendant's affidavit should alone be considered on his application for a rule to show cause why he should not be discharged ;"° nor will he be questioned unless further explanation is deemed nec- essary.^*" 25. Discharge of defendant (i) When will the court discharge the defendant? In slander against husband and wife she is entitled to a discharge on com- mon bail;"^ more generally in all cases of slander after giving common bail to the sheriff unless special damage be alleged.^*^ Also when a capias has been served on the wrong person,^** also an administrator after showing an embezzlement of the trust fund by his surety and his own inability to pay ;^** or a total ina- bility to comply with the order of the court.^*' A capias cannot issue against a freeholder.^*^ Again, when the defendant cannot be held to special bail it is not necessary to quash the writ and put the plaintiff to the cost of bringing a new action, especially if the defendant has ap- peared generally, but the record can be amended and the action may proceed as though it had been brought in assumpsit.^*^ After the defendant's discharge on common bail an exoneretur will be entered on a recognizance of special bail which has been i I Vale 1479. may be locked up, his remittances prevented, and the injury nearly as great as in the other case. The bail marked by an attorney, or a malicious plaintifiF, may be out of all bounds disproportioned to the debt; and if there were no way of examining into the justice or extent of the demand, a defendant might be at the mercy of the plaintiff, to be ruined at his pleasure. Vienne v. McCarty, i Dall. 154. Garnishee in foreign attach- ment may rule the plaintiff to show his cause of action. Erb v. Landis, 3 Clark 226. 138 Pratt V. Strickland, i P. A. Bro. 213; Walters v. Callot, 2 Yeates 26. 139 Brown v. Esquirrel, 12 W. N. C. 421. 140 Comley v. Knight, i P. A. Bro. 286. 141 Hurst V. Smith, 9 W. N. C. 461 ; Waters v. Drayton, 15 Phila. 72. 142 Morrison v. Gardner, 15 Phila. 175. 143 I/isansky v. Gerzog, 2 Dist. 220. 144 Stevenson's Estate, 7 W. N. C. 65. 14s Ex parte Hilles, 8 W. N. C. 419. 146 See Chap. VII. §1-11. 147 Collins V. Hogg, 19 Dist. 975. 324 Common Law Practice in Pennsylvania. given by the bail to the sheriff without the defendant's knowl- edge.^** A rule to show cause of action and why the defendant should not be discharged on common bail must be moved within six days of the return day of the process. Such rule may be heard and de- cided by a single judge, at such time and place as he may ap- point.^*' This rule may be relaxed, under special circumstances : as, in case where the defendant had been confined in jail, and had no counsel, until after the expiration of the first week of the term.^^° And though the motion be not in time, the court may subsequently reduce the amount of bail, if deemed excessive.^^^ 26. When it must be moved. A rule to discharge on common bail should not be filed until after the defendant's arrest.^^^ The application to the court must be made within a reasonable time after the beginning of the term.^^^ A freeholder who claims exemption must make his ap- plication before the expiration of the term to which the writ was issued.^'* Again, the application for the rule to show cause should be made before the expiration of the six weeks during which the bail bond can be sued, bi)t the court may subsequently reduce the amount if excessive.^'^ And the rule may be properly served on the plaintiff's attorney. ^°° 27. What affidavit must state. The only mode of showing cause of action is by affidavit ;^^' which may be sworn to before an officer in a foreign country.^^* But it must be sworn to within a year before the issuing of the process; if, however, the process were issued immediately, and regularly continued, it matters not that the defendant was not ar- 148 Meyers v. Young, 2 Dall. 79. See §37. 149 Rule 9, §27. 150 Schroeder v. Morrison, 2 Bro. 261. 151 Rice V. Stacy, 9 Lane. Bar 81. 152 Robbins v. Redheflfer, 33 W. N. C. 220. 153 Borger v. Searle, 2 Dall. no. 154 Gottschall V. Reinhart, 9 C. C. 415. 155 Rice V. Stacy, 9 Lane. Bar 81. 156 Hutcheson v. Jolinson, i Binn. 59. 157 Towers v. Kingston, I Bro. 33. 158 Walker v. Bamber, 8 S. & R. 61 ; Baker v. Croft, Dist. Court, Phila., 1825. Of the Capias ad Respondendum. 325 rested within the year.^^" The defendant must be named in the body of the affidavit ; it is not sufficient, to refer to him as "the said defendant."^^" And an interlineation in a material matter, is ground for discharging the defendant on common bail.^"'^' The affidavit must be positive ; swearing to the best of the plaintiff's knowledge and belief is not sufficient ;^°^ it must set forth the cause of action with certainty ;^°^ or the defendant will be dis- charged on common bail.^^* But, in trespass, the plaintiff is not required to swear to the precise amount of damages, so that the facts be explicitly and distinctly stated.^°* If, however, the plain- tiff's affidavit be positive, he cannot be cross-examined;^"® nor will the court inquire into the source of his knowledge.^*' In slander, the affidavit must either set forth the identical words spoken, or must aver, with distinctness, the substance of the charge made.^®* In an action for conspiracy to defame, it is 1 59 Corrin v. Millington, 2 Miles 267. 160 Smith V. Bible, i Phila. 91; Marquis v. Goldstein, 2 W. N. C. 112. 161 Berry v. Carman, Dist. Court, Phila., 17 March, 1849. Rule to show cause of action. Per curiam. We adhere, after the fullest reflec- tion, to the rule of practice which we have adopted and followed for some time past, that a material interlineation or erasure in an affidavit to hold to bail, not noted in the jurat, is a sufficient reason to make the rule ab- solute. If one result of the practice should be, to oblige the attorney to take a little more time, before issuing the capias, we do not know that that forms any objection to the rule. Rule absolute. And see Boyle v. Grady, i W. N. C. 313. Contra, — Sedgebeer v. Moore, Bright. 197. 162 Towers v. Kingston, i Bro. 33 ; Young v. Corder, 2 Miles 155 ; Hewitt V. Nicholson, Miles 322; Brown v. Been, 15 W. N. C. 469; Bar- nett V. Stains, 20 W. N. C. 274 ; Hapgood Shoe Co. v. Saupp, 7 Super. Ct. 480. See Boyle v. Grady, i W. N. C. 313; Diehl v. Perie, 2 Miles 47; Bromley v. Joseph, 3 Wh. 10. 163 Delaware Mutual Insurance Co. v. Walker, i Phila. 104; Dona- hue v. Keller, Ibid. 106; Philadelphia Coal Co. v. Huntzinger, 6 W. N. C. 300. 164 Chase v. Ricketts, 3 Luz. L. Obs. no. 165 Pontingen v. Williams, I Bro. 206. The rule is the same, in slander. Charles v. Holmes, Ibid. 297. The damage may be stated, on information and belief. Nevins v. Merrie, 2 Whart. 499. 166 Comely v. Knight, i Bro. 286. 167 Samson v. Kilse, i Bro. 341. 168 Vanderslice v. Spear, 2 Miles 392; Carvill v. Cochran, i Phila. 399. But it seems there must be at least a general averment of special damage. Marquis y. Goldstein, 2 W. N. C. 112; Charles v. Holmes, i Bro. 297. 326 Common Law Practich; in Pennsylvania. necessary to show the conspiracy to be false; but this may be made to appear by the whole aflSdavit taken together.^*^ In an action for malicious prosecution before an alderman, an affidavit which sets forth that the defendant, after the arrest, neglected to prosecute his suit, and that it was ended and determined, is in- sufficient ; it should state what action was taken by the alderman, and leave it to the court to say whether the suit was ended and determined.^'" And in an action for breach of promise of mar- riage, a precedent request and refusal must be stated.^'^ In trover and conversion the affidavit must set forth the circum- stances under which the defendant has possessed himself of the goods, the particulars of which they consist, their value, and the manner of conversion.^'^ In an action of libel and slander the affidavit must state the exact words used or the substance of them,^" and if spoken in a foreign language the foreign words,^'* also the time and place of utterance,^'° but there can be no joint utterance of slanderous words by husband and wife,^'° and when a husband is sued for the slander of his wife it must be alleged that the words were 169 Gruninger v. Culbertson, Dist. Court, Phila., 16 Dec, 1848. Per curiam. The affidavit sets forth a conspiracy to defame and destroy the reputation of plaintiff's wife, by accusing her of a want of chastity. If there was a conspiracy to accompUsh this object, by the means set forth in the affidavit, it certainly presents an aggravated case. That such an ac- tion lies, we have no doubt. Rule discharged. 170 Walker v. Curran, i Phila. 113. 171 Parke v. Bolivar, Dist. Court, Phila., 20 January, 1849. Rule to show cause of action. Per curiam. This is an action for a breach of promise of marriage. The affidavit is defective, in not stating any re- quest by the plaintiff, and refusal by the defendant, to marry her. It is perfectly clear that to support an action for a breach of promise of mar- riage, if the defendant has not married another, there must be evidence of an offer to marry on the part of the plaintiff, and a refusal by the defendant. Gough v. Far, 2 C. & P. 631. 172 Philadelphia Coal Co. v. Huntzinger, 6 W. N. C. 300; Tucker v. Hough, 24 W. N. C. 91; Hurlbut v. Sharp, 13 W. N. C. 137; Buckman v. Jones, 3 W. N. C. 302; Mangaletti v. McMillan, 10 C. C. 239; Walker v. Nunes, 19 Phila. 323. 173 Vanderslice v. Spear, 2 Miles 392; Charles v. Holmes, I P. A. Bro. 297. 174 E— V. R— , 12 C. C. 274. 17s Taylor v. Ashworth, 2 W. N. C. 370; Di Scuillo v. Pucini, 12 Dist. 702. 176 Carvill V. Cochran, i Phila. 399. Of the Capias ad Respondendum. 327 spoken in the husband's presence and with his consent.*'^ The affidavit in an action for libel must be sufficiently precise to sus- tain an indictment for perjury if untrue.^^* Special damage must also be shown or special bail will not be required,"^ unless the charge be of a very gross nature/^" but need not show a spe- cific sum.^'^ In trespass for malicious prosecution for having one arrested on a charge of knowingly receiving stolen goods, the affidavit must deny that the plaintiff knew that the goods were stolen,^''' but the damages claimed need not be stated.^*^ In trespass for conspiracy an affidavit averring a combination among the de- fendants in one of several acts is sufficient.^^* In trespass quare clausum f regit the affidavit must describe the land,^^^ and the names of the defendants;^** and an affidavit that the defendant broke into the plaintiff's house and destroyed val- uable documents is sufficient.^*' In trespass for assault and bat- tery the affidavit should set forth the details of the alleged wrong, and the amount of damages claimed sufficiently to make bail appear reasonable.^** In an action against the master of a ves- sel the affidavit is sufficient if containing the statement that he approved and adopted the tortious acts of his mate,^*° and the amount of damages need not be specifically set forth.^^° In tres- 177 O'Connor v. Welsh, 29 W. N. C. 92. 178 Holland v. Dealy, 13 Phila. 79. See Cesser v. Braunfield, 13 W. N. C. 209. 179 McCawley v. Smith, 4 Yeates 193 ; Beriac v. Wellhof , 27 W. N. C. S3; Ripple v. lyittle, S Lack. Jur. 193; Pfounts v. Cresley, 3 Kulp 40; Noll V. Jacoby, 7 Lane. L. Rev. 365. 180 A. B. and C. B. v. R., 4 W. N. C. 185; Campbell v. Gilmore, 10 Lane. Bar 37. 181 Charles v. Holmes, i P. A. Bro. 597. 182 Aarons v. Dunseith, i Dist. 701. See Sargent v. Bridenbach, i W. N. C. 51- 183 Pontingen v. Williams, i P. A. Bro. 206; Towers v. Kingston, I P. A. Bro. 33. 184 Nash V. Bloom, 10 C. C. 358. 185 Frothingham v. Hollenback, 3 Lane. L. Rev. 316. 186 Hower v. Bennett, 15 C. C. 557- 187 Rowe V. Newton, 5 C. C. 325- 188 Gall V. Molessa, 3 Dist. S37. 189 Wedman v. Kendall, 14 W. N. C. 157. 190 Moll V. Wilmer, 11 W. N. C. 498; Fotterall v. Miller, 1 Del. 286; Pontingen v. Williams, i P. A. Bro. 206; Towers v. Kingston, i P. A. Bro. 33. 328 Common Law Practicb in Pennsylvania. pass VI et armis the affidavit to hold to special bail may be suffi- cient even if lacking the words vi et armis or contra pacem.^®^ In trover and conversion the affidavit must state explicitly the circumstances under which the defendant acquired the wrongful possession.^®'' But an affidavit alleging the plaintiff's ownership and that the defendant forcibly took the goods and appropriated them to his own use is sufficient.^®^ And if it shows that an at- torney has received securities from his client which he holds in good faith, he will not be held to bail."* And in detinue no bail should be demanded where the defendant had not possessed him- self of the goods wrongfully, and where the plaintiff had not de- manded the return of the goods before bringing the suit.^®^ In a breach of promise suit an affidavit alleging that the de- fendant refused to have the ceremony performed is sufficient;^®' but an affidavit averring that the plaintiff accepted the defend- ant's offer to marry is insufficient.^®' And the defendant will not be discharged on common bail where he refuses to have anything to do with the plaintiff or to have the ceremony performed.^®* With respect to objections these must be made within the time prescribed by the rules of court,^®® and entry of bail waives the right to object to the sufficiency of the affidavit.^"® If there be immaterial omissions there will not avoid the affidavit,''®^ but when the affidavit contains material, unnoted interlineations or erasures the defendant will be discharged on common bail,''®^ but the writ will not be quashed.^®^ The affidavit is conclusive ; the plaintiff cannot be examined to 191 Leonard v. Erlanger, 17 W. N. C. 13. 192 Tucker v. Hough, 24 W. N. C. 91 ; Mangaletti v. McMillan, 10 C. C. 239; Walker v. Nunes, 19 Phila. 323. 193 Walker v. Nunes, 19 Phila. 323. 194 Potts V. Gibb, 8 W. N. C. 359. 19s Bernbridge v. Turner, 2 Yeates 429. 196 Weaver v. Kline, 10 Lane. L- Rev. 25. ip7 Snedden v. Gunn, 16 C. C. 47. ig8 Weaver v. Kline, 10 Lane. L. Rev. 25. 199 Corbin v. Stewart, 2 W. N. C. 630. 200 Trewitz v. Young, 13 Lane. Bar 202. 201 Leonard v. Erlanger, 17 W. N. C. 406. 202 Boyle v. Brady, i W. N. C. 313. 203 Agnew v. Dubois, 8 W. N. C. 406. But see Boyle v. Grady, i W. N. C. 313- Of the Capias ad Respondendum. 329 show that he has no cause of action.^"* On the other hand it cannot be supported by a supplemental affidavit,^°° except when the plaintiff voluntarily files an affidavit with the praecipe. He may in such case when ruled to show cause of action file an ad- ditional one.^°® Again, if an affidavit be filed with the praecipe and be defect- ive, a motion to discharge on common bail will be treated as a rule to show cause of action, and the plaintiff will be permitted to file another in response to it.^"^ The right to require bail can- not be questioned by a counter affidavit, on a rule to discharge on common bail, but such an affidavit may be admitted when the amount of bail is alleged to be excessive and oppressive,^"' 28. Hearing. The parties are to appear before the judge, or in court, at the time fixed for the hearing. In accordance with the terms of the rule, the plaintiff must proceed to show his cause of action, which can only be done by affidavit. If that be insufficient, the judge will order the defendant to be discharged on common bail ; if the cause of action be sufficient, but the facts set forth show that the amount of bail demanded is excessive, the judge will order it to be reduced ; and when, after fixing bail at a particular amount, the court, by a subsequent order, reduces it, the latter is the only one which can be recognized as obligatory;^"' if neither of these is the case, the defendant's rule will be dis- charged, and he will then, if he wishes to obtain his liberty, be obliged to put in bail in the amount indorsed on the writ. If the affidavit be properly framed, and the facts contained in it sustain the plaintiff's case, it is so far conclusive, that no counter affidavits will be admitted ; but if insufficient, supplementary affi- 204 Comely v. Knight, i P. A. Bro. 286; Berger v. SmuU, 39 Pa. 302- Contra,— Gosline v. Place, 32 Pa. 520. 205 Eldridge v. Robinson, 4 S. & R. 548; Fotterall v. Miller, i Del. 286. 206 Waters v. Collot, 2 Yeates 26; Tiffany v. Billings, 2 Lack. Jur. 102. 207 Tiffany v. Billings, 7 Lane. L. Rev. 381. 208 Gall V. Molessa, 3 Dist. 537; Parasset v. Gautier, 2 Dall. 33°; Brown v. Esquirrel, 12 W. N. C. 421 ; Gall v. Molessa, 3 Dist. 537- 209 Potts V. Fitch, 2 Pa. 173. 330 Common Law Practice in Pennsylvania. davits may be received.''^'' If the allegations of fraud stated in the affidavit be substantiated to the satisfaction of the judge, and not denied on oath, the defendant may be committed.^^^ Fur- thermore, the affidavit casts the burden of proof on the defend- ant.^^^ The defendant may controvert an affidavit that he has not been a resident for two years, as the law requires.^^^ His an- swer may be overcome by other proof .^^* But on the preliminary hearing the credibility of the witnesses cannot be impeached. ^^° The question of the discharge on common bail must be deter- mined solely by the plaintiff's affidavit, in an action for libel or slander special bail will only be required when the plaintiff swears positively to special damages or is about to leave the jurisdic- tion.^^* Where common bail is ordered by a judge at chambers, his action will not be reviewed by the court, in term, though the plaintiff give notice of his intention to apply.^^'' 29. Entry of bail. The act of 1836 provides that the sheriff shall let the defendant to bail, taking from him a bond, with reasonable sureties, having sufficient estate within the county, conditioned that, if the defend- ant shall be condemned in the action, at the suit of the plaintiff, he shall satisfy the condemnation money and costs, or surrender himself into the custody of the sheriff of the county, or, in de- fault thereof, that the bail will do so for him; and such bond shall be for the use of the plaintiff in the action, or of the sheriff, or other officer, as the case may be."^ But if the defendant be committed, or surrendered by his bail, he may enter special bail 210 Hallowell v. Tenney Canning Co., 16 Super Ct. 60, Rice, P. J., citing the conflicting authorities. Formerly the rule was otherwise. Eldridge v. Robinson, 4 S. & R. 548. 211 Gosline v. Place, 32 Pa. 302; Spencer v. Bloom, 149 Pa. 106; Kohlhaas v. Veit, 162 Pa. 108, ill. 212 Berger v. SmuU, 39 Pa. 302. 213 Penman v. Wayne, i Dall. 241. 214 Hapgood Shoe Co. v. Saupp, 7 Super. Ct. 480. 215 Commonwealth v. Roop, 15 W. N. C. 419. 216 Renninger v. Dillon, 2 Dist. 819. 217 Chryster v. Jackson, Supreme Court, Dec, 1774. MS. 218 Act 13 June, 1836, §§9, 10, P. L. 574, i Purd. §§50, 51, p. 248. An insolvent who, having failed to obtain his discharge, voluntarily sur- renders himself to the jailer has complied with the condition of the bail- bond although the warden refuses to receive him. Saunders v. Quigg, 112 Pa. 546. Of the Capias ad Respondendum. 331 to the action, according to the former practice, before a commis- sioner of bail.^" If the sheriff refuse to admit the party to bail, he is liable to him in treble damages. 30. Bond. In order to meet the requisitions of the act, it is not necessary that the writ should be recited in the bond ; a reference to the ac- tion, and such a description of it, as will render the application of the bond to it certain, is all that is required. Therefore, where one of two defendants, named in the writ, cannot be found, and the bond omits the name of such defendant, in referring to the action, and in the condition of the bond, the bond is good and well taken ; for the one taken and named in the bond, may, with strict propriety, be regarded as the only defendant.^^" In an action on a bail-bond, reciting the arrest to have been under a capias ad respondendum, in an action of trespass on the case, where the record given in evidence showed the action was trespass vi et armis, the variance was held immaterial. "^^ A bond with one surety is not void, and the court, in such case, will not grant a rule on the sheriff, to bring in the body, but the plaintiff may ex- cept to the bail, in the usual manner.^^^ Nor is a bond invalid given to the commonwealth in an action of trespass begun by capias ad. respondendum in the form prescribed by the statute the voluntary addition of a confession of judgment with a waiver of exemption stay of execution and inquisition.^^^ 31. Return of bond. The officer taking a bail-bond, under the act of 1836, must re- turn it, along with the capias, at or before the return day, to the office of the prothonotary, who must file the bond, and enter on the docket the names of the bail. And, besides this, the sheriff, who takes the bail-bond, must give notice, in writing, of the names and places of residence of the bail, to the plaintiff, his agent or attorney. This notice should designate the place of resi- dence of the bail, with sufficient particularity to enable the plain- tiff to make inquiries as to his sufficiency, and so as to his addi- tion or description. 219 Ibid. §19, I Purd. §61, p. 250. 220 Kelly V. Commonwealth, 9 W. 43. 221 Devereaux v. Esling, 7 Pa. 383. 222 Cummings v. Meeker, 2 Miles 83. 223 Commonwealth v. Keenan, 228 Pa. 276. 332 Common Law Practice in Pennsyi Term, 19 . No. (Name of Defendant).! County, ss.: The plaintiff (name of plaintiff) claims of the defendant (name of defendant) the sum of dollars, with in- terest thereon from (the date of the breach of the contract sued upon or of the commission of the wrong sued for), which is justly due and payable to the plaintiff by the defendant upon the cause of action whereof the following is a statement. 23s Ibid. 236 Meitzner v. Baltimore & Ohio R. Co., 224 Pa. 352. 237 Jones V. Gordon, 124 Pa. 263. 238 Niagara Fire Ins. Co. v. Thron, 4 C. C. 308. 239 Collins V. Kramer, 14 Dist. 153. 240 Ibid. 241 Fritz V. Hathaway, 135 Pa. 274. 242 Pennsylvania R. Co. v. Walsh, i Dist. 121; Ickenger v. Railroad Co., 20 W. N. C. 333- ♦For other forms of statement see Vol. III., Chapter on Assumpsit. 428 Common Law Practice in Pennsylvania. (Conclusion.) FORM OE plaintiff's AFFIDAVIT TO STATEMENT. County, ss.: (A. B.), the plaintiff in the foregoing statement, being duly sworn (or affirmed) according to law, deposes (or affirms) and says that the facts set forth in the foregoing statement as the basis of claim are true. Sworn (or affirmed) to and sub- ^ (Signature of Plaintiff.) scribed before me, this day of , A. D. 19 . Notary Public. AFFIDAVIT IF MADE BY SOME ONE ON BEHALF OF THE PLAINTIFF. Philadelphia County, ss.: G. H., having been duly sworn (or affirmed) according to law, doth depose (or affirm) and say that he is the (agent or as case may be) of the plaintiff, that the plaintiff is (sick or absent from the country), and by reason thereof the plaintiff cannot make affidavit to this statement. Deponent (or affiant) is well ac- quainted with the facts of this case. Deponent further saith that the matters set forth in the foregoing statement as the basis of claim are true. Sworn (or affirmed) to and sub- scribed before me, 19 . Notary Public. (Signature of G. H.) > PAYEE AGAINST MAKER ON A NOTE PAYABLE GENERALLY, AND NOT AT A PARTICULAR PLACE. (For the commencement and conclusion see first and second forme ante p. 427.) The defendant, to wit, on the (date of note), at the county aforesaid, made and delivered to the plaintiff his promissory note, whereof the following is a copy : (.Here insert copy of the note.) But the defendant refused to pay the amount of said note or any part of it according to the tenor thereof, and still refuses to pay the same. E.F., Attorney for Plaintiff. (Affidavit when required.) (Date.) Of the Statement. 429 payee against maker oe a note payable at a particular PLACE. (For the commencement and conclusion see first and second forms.) The defendant, on the (date of note), at the county aforesaid, made his promissory note, whereof the following is a copy: (Here insert copy of note.) And having delivered the said prom- issory note to the plaintiff, the defendant became liable for the payment of the same, according to the tenor and effect there- of. The said promissory note was duly presented for payment at (place where note is made payable), and payment of the same demanded of a proper person according to the tenor of said note ; but payment thereof was refused, and the defendant has always refused to pay the amount of said note or any part thereof. E. F., Attorney pro Plaintiff. (Date.) (Affidavit when required.) ON A NOTE FOR ONE OR MORE INSTALMENTS DUE IN WHICH THERE IS NO CLAUSE THAT THE WHOLE SHALL BE PAYABLE ON ONE DEFAULT. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (date of the note), at the county aforesaid, made and delivered to the plaintiff, his promissory note, whereof the following is a copy : (Here insert copy of the note.) And, to wit, on the (date that the instalment or instalments became due), the sum of dollars for (one) of the in- stalments became and (was) due and payable, by virtue of the said note, at the county aforesaid. But the defendant wholly failed to pay the same or any part thereof. E. F., Plaintiff's Attorney. ^Date.) (Affidavit when required.) 430 Common Law Practice in Pennsyi I9 • Notary Public. PAYEE against executor of a maker. (For the commencement and conclusion see first and second forms.) (Name of deceased maker), to wit, on the (date of note), at the county aforesaid, made and delivered to the plaintiff his prom- issory note, whereof the following is a copy : (Here insert copy of the note.) And the said (the deceased maker), to wit, on the (date of his death or about it), died, having first made his last will and testament, which was afterward, to wit, on the day and year last aforesaid at (domicil of decedent) duly proved, and letters testamentary thereon were then and there duly granted to the defendant, to wit, at the county aforesaid. The said did not in his lifetime pay any part of said note, nor has the Of the Statement. 435 defendant since the death of the said paid any part of said note. I. K. Attorney pro Plaintiff. (Date.) (Affidavit when required.) PAYEE AGAINST ADMINISTRATOR OF MAKER. (For the commencement and conclusion see first and second forms.) Use preceding form, down to and including the copy of the note, and then proceed as follows: And the said (the deceased maker), to wit, on the (date of his death or about it), died intestate, and afterward, to wit, on the day and year last aforesaid, letters of administration of all and singular the goods and chattels, rights and credits of the said (the deceased maker), were duly granted to the defendant, to wit, at the county aforesaid. The said did not in his lifetime, nor has the defendant, since the death of the said , paid any part of said note. I. K., Attorney pro Plaintiff. (Date.) (Affidavit when required.) DRAWER AGAINST ACCEPTOR OF A BILL PAYABLE TO A THIRD PERSON AND RETURNED TO AND TAKEN UP BY DRAWER. (For the commencement and conclusion see first and second forms.) The plaintiff, to wit, on the (date of bill), at the county afore- said, made and delivered to (payee of the bill), his bill of ex- change, whereof, as also of the acceptance thereof hereinafter mentioned, the following is a copy : (Here insert copy of the bill and acceptance.) The defendant, to wit, on the (date of acceptance or about it), at the county aforesaid, accepted the said bill in writing upon sight thereof, according to the custom of merchants. When the said bill became due, to wit, on the , at the county aforesaid, the said bill so accepted as aforesaid was duly presented and shown to the defendant for payment thereof, but neither the defendant nor any person or persons on his 436 Common Law Practice in Pennsylvania. behalf did or would then, or at any time before or afterward, pay the said bill, or any part thereof; and thereupon, to wit, on the day and year last aforesaid, at the county aforesaid, the said bill was returned to the plaintiff for non-payment thereof; and the plaintiff, as drawer of the said bill, was then and there called upon and forced and obliged to pay, and did then and there pay to the said (payee), the sum of money in the said bill specified. I.K., Attorney pro Plaintiff. (Date.) (Affidavit when required.) PAYEE against acceptor. (For the commencement and conclusion see first and second forms.) (The drawer of the bill), to wit, on the (date of the bill), at the county aforesaid, made and delivered to the plaintiff his bill of exchange, whereof, as also of the acceptance thereof hereinafter mentioned, the following is a copy: (Here insert copy of the bill and acceptance.) The defendant, to wit, on the (date of acceptance or about it), at the county aforesaid, accepted the said bill in writing upon sight thereof, according to the custom of merchants. When the said bill became due, to wit, on the , at the county aforesaid, the said bill so accepted as aforesaid was pre- sented and shown to the defendant for payment thereof, but neither the defendant nor any person or persons on his behalf did, or would then, or at any time before or afterward, pay the said bill, or any part thereof. I. K., Attorney pro Plaintiff. (Date.) (Affidavit when required.) FIRST OR subsequent INDORSEE AGAINST ACCEPTOR. (For the commencement and conclusion see first and second forms.) (The drawer of the bill), to wit, on the (date of the bill), at the county aforesaid, made and delivered to (payee of the bill) his bill of exchange, whereof, as also of the acceptance and in- dorsement thereof hereinafter mentioned, the following is a copy : Of the Statement. 437 (Here insert copy of the bill and acceptance, noting the in- dorsements.) The defendant, to wit, on the (date of acceptance or about it), at the county aforesaid, accepted the said bill in writing upon sight thereof, according to the custom of merchants. And the said (payee) then and there indorsed and delivered the said bill to the said (first indorsee). And the said (first indorsee) then and there indorsed and delivered the said bill to the plaintiff. (If there should, how- ever, be subsequent indorsements, aver each one as above.) By means whereof the defendant then and there became liable to pay to the plaintiff the sum of money in the said bill specified. When the said bill became due, to wit, , at the covtnty aforesaid, the said bill so accepted as aforesaid was duly presented and shown to the defendant for payment thereof, but neither the defendant nor anyone for him, then or at any time, paid the said bill or any part thereof. I. K., Plaintiff's Attorney. (Date.) (Affidavit when required.) PAYEE AGAINST DRAWER ON DEFAULT OE ACCEPTANCE. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (date of the bill), at the county aforesaid, made and delivered to the plaintiff his bill of exchange, whereof the following is a copy: (Here insert copy of the bill.) The said bill, before the payment thereof, to wit, on the (date of presentation, or about it), at the county aforesaid, was duly presented and shown to the said (drawee) for his acceptance thereof, according to the custom of merchants, but the said (drawee) did not nor would then or at any time afterward ac- cept the same, or pay the sum of money therein specified, or any part thereof; of all which said several premises the defendant then and there had notice. Yet defendant has not paid any part thereof. I. K., Plaintiff's Attorney. (Date.) (Affidavit when required.) 438 Common Law Practice in PeNNSYi the plaintiflf at the re- quest of the defendant had permitted , the defendant, to have the use and occupation of the premises No. Street, , with the appurtenances, situate and being in the county aforesaid, for a long time then lately elapsed ; and the defendant then and there promised to pay the plaintiff such a sum of money as the plaintiff reasonably deserved to have for the same. And the plaintiff reasonably deserved to have of the defendant for the use and occupation of the said messuage with the ap- purtenances the sum of dollars which he has duly de- manded, yet the defendant has not paid the same or any part thereof, to the damage of the plaintiff dollars. E. F., Plaintiff's Attorney. (Date.) (Affidavit when required.) VENDOR OF AN ESTATE IN EEE SOLD AT AUCTION AGAINST PURCHASER FOR NOT COMPLETING PURCHASE AND PAYING THE LOSS ON A RESALE. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (day of sale) at the county afore- said, purchased at auction of (name of auctioneer) the auction- eer and agent in that behalf of the plaintiff, certain premises of the plaintiff. No. Street, with the appurtenances, in the city of Philadelphia, for the price or sum of dollars, upon the terms and conditions following, that is to say, that the defendant should pay down immediately the sum of dollars on account of the purchase money, and should Of thb Statbment. 483 pay the remainder on or before the day of (or within a reasonable time thereafter), on having a good title conveyed to him at his own expense; and that in case the pur- chaser should fail to comply with the said conditions the said sum of dollars paid on account as aforesaid should be forfeited and the vendor be at liberty to resell the said prem- ises, with the appurtenances, and the deficiency, if any, together with all charges, should be made good by the defaulter; and the defendant signed said conditions and promised the plaintiff to perform everything in the said conditions of sale on his part and behalf as such purchaser as aforesaid to be performed. And although the plaintiff before and on the said day of was (or, and although a reasonable time has elapsed since the said purchase and the making of the said promise by the defendant, and although the plaintiff was) ready and willing and, to wit, on the day of , at the county afore- said, offered to make and convey to the defendant a good and sufficient title in fee simple of, in and to the said premises, with the appurtenances, and then and there to execute and cause to be executed proper conveyances thereof in fee simple to the de- fendant upon payment of the said remainder of the said pur- chase money according to the said terms and conditions of the said sale; but the defendant did not nor would on or before the day and year last aforesaid, on having such good title as afore- said, or at any other time, pay or cause to be paid to the plain- tiff the said remainder of the said purchase money or any part thereof, but then and there refused so to do. And thereupon the plaintiff afterward, to wit, on the (day of resale or about it) at the county aforesaid, according to and by virtue of the said conditions of the said sale again exposed the said premises, with the appurtenances, to sale by auction and the same were then and there resold for a much less price or sum of money than the said sum for which the same had been so sold to the defendant as aforesaid, to wit, for the sum of (amount of resale) dollars, whereby there was then and there a deficiency between the said price for which the said premises, with the appurtenances, were so sold to the defendant as aforesaid and the said price for which the same were so sold on the resale, to wit, dollars; and the charges attending such resale then and there amounted to, to wit, dollars. Of all which several premises the defendant then and there had notice, and by reason 484 Common Law Practice in Pennsyi^vania. of the said premises and according to the said terms and condi- tions of sale the defendant then and there became liable to pay to said plaintiff the amount of the said deficit or difference be- tween the two sales. In consideration whereof the defendant, on the day and year last aforesaid, promised to and with the plaintiff to pay to the plaintiff the sum of dollars for the loss on said second sale and for the plaintiff's costs and charges in the premises. But the defendant although requested has refused and still refuses to pay to plaintiff said sum, or any part thereof, to the plaintiff's damage dollars. E. F., Plaintiff's Attorney. (Date.) (Affidavit when required.) FOR A FALSE WARRANTY ON THE SALE OF A HORSE. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (day of sale or about it), to wit, at the county aforesaid, by falsely and fraudulently war- ranting a certain horse to be sound and quiet in harness then and there sold the said horse to the plaintiff for the sum of dollars which was then and there paid by the plaintiff to the defendant ; and the said horse was at the time of the making of the said warranty and sale thereof and has so continued and still is unsound, unsteady, restive and ungovernable in harness. By means of the premises the defendant then and there fraud- ulently deceived and defrauded the plaintiff on the sale of the said horse as aforesaid and thereby the said horse then and there not only became of no use or value to the plaintiff, but also then and there severely kicked and injured a certain other horse of the plaintiff, to wit, of the value of dollars, and thereby also the plaintiff was then and there put to great expense, to wit, the sum of dollars in and about the feed- ing and taking care of and selling and disposing of the said horse, to wit, at the county aforesaid. By means of which premises the plaintiff sustained the following items of damage: The horse so sold by defendant was really worth less the amount so paid to defendant by plaintiff by $ The horse kicked by defendant's horse was thereby in- jured to extent of Of the Statement. 485 etc. (setting forth all items in detail) to plaintiff's damage dollars. I. K. Plaintiflf's Attorney. (Date.) (Affidavit when required.) FOR A FALSE WARRANTY ON THE EXCHANGE OF A HORSE. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (day of exchange or about it), to wit, at the county aforesaid, by falsely and fraudulently war- ranting a certain horse to be sound then and there fraudulently sold and exchanged the said horse for the sum of dollars to be paid by the plaintiff to the defendant and for a certain horse of the plaintiff to be delivered to the defendant; and the plaintiff then and there paid and delivered the said sum of money and delivered his said horse to the defendant in exchange for the said horse of the defendant, and at the time of the making of the said false warranty and exchange as aforesaid the said horse of the defendant was not sound, but, on the contrary thereof then was and still is unsound and is of no use or value to the plaintiff. By means of the premises the defendant then and there fraud- ulently deceived and defrauded the plaintiff on the said sale and exchange and thereby the plaintiff has lost and been deprived of the use of his said horse and has lost the money he so paid to defendant and has lost the value of the horse he delivered to defendant, which was worth dollars, to the damage of the plaintiff dollars. I. K., Plaintiff's Attorney. (Date.) (Affidavit when required.) ON A WARRANTY THAT A HORSE SOI,D IS SOUND, ETC. (For the commencement and conclusion see first and second forms.) The defendant, to wit, on the (day of sale or about it), at the county aforesaid, offered to sell the plaintiff a certain horse at and for a certain price or sum of money, to wit, the sum of dollars, and the defendant as inducement to the plain- 486 Common Law Practice in Pennsylvania. tiff to purchase said horse then and there promised and war- ranted to the plaintiff that the said horse was then and there sound and relying upon said defendant's promise and warranty the plaintiff agreed to buy and did buy said horse and paid de- fendant said sum of dollars therefor; but at the time of the making of the said promise and warranty by the defendant the said horse was not sound, but on the contrary thereof was at that time unsound ; whereby the said horse became and was of no use or value to the plaintiff (aver any special damage), to the damage of the plaintiff dollars. I. K., Plaintiff's Attorney. (Date.) (Affidavit when required.) (This form may readily be applied to any description of war- ranty, as that the horse was "free from vice," etc. The war- ranty must be described accurately and co-extensive with the breach complained of. If any conditional or exceptional terms be used they must be followed in setting out the contract. There- fore, if a horse be warranted sound everywhere except a kick on the leg, the exception must be stated.) (2 Chitty's PL, 280, note h.) (The particular description of unsoundness need not be stated, it being the rule in pleading that the breach may in general be assigned in the negative of the words of the contract.) (Ibid., 281, note k.) UPON A CLAIM FOR INJURIES SUSTAINED BY NEGLIGENCE OF PAS- SENGER RAILWAY COMPANY. (For the commencement and conclusion see first and second forms.) The defendant is a corporation engaged in the business of car- rying passengers for hire. On the 25th day of December, 1888, the plaintiff having paid his fare became a passenger upon a certain passenger railway car of the defendant running upon the line operated by the de- fendant, to wit, north upon Eleventh Street, Philadelphia, at the county aforesaid, said car being the property of and operated by the defendant. And thereupon the defendant undertook to safely carry the plaintiff or hire. Of the Statement. 487 Nevertheless the said defendant, its duty in this respect wholly disregarding and neglecting, so carelessly and negligently operat- ed said car that when the same was crossing Columbia Avenue, a street running east and west at right angles to said Eleventh Street, to wit, at the county aforesaid, the said car upon which the plaintiff was a passenger, by reason of defendant's negligence, collided with a certain other car running east upon said Columbia Avenue. By reason of said collision, due to the negligence and careless- ness of the defendant and the total disregard of its duty to safely carry the plaintiff for hire as aforesaid, the said plaintiff was suddenly and violently thrown from his seat in said car by reason whereof the plaintiff has been injured in his spine and nerves and has suffered great pain and distress and has been prevented from attending to and transacting his lawful business and affairs, to wit, from thence hitherto, and has been compelled to lay out and expend large sums of money for medicines and medical at- tendance and has been otherwise greatly injured and damaged, to the plaintiff's damage dollars. E. F., Plaintiff's Attorney. (Date.) (Affidavit when required.) UPON AN ACTION FOR DAMAGES AGAINST THE COUNTY FOR IN- JURIES COMMITTED BY A MOB. (For the commencement and conclusion see first and second forms.) That on the day of > 19 . at the county afore- said, divers persons did unlawfully and riotously assemble to- gether as a mob or riot to the disturbance of the public peace, and being so assembled did then and there unlawfully, wilfully and with force set fire to and burn and demolish a certain build- ing belonging to the plaintiff, called , and situated , of the value of dollars. That there was contained in said building certain personal property, goods, wares and merchandise belonging to the plain- tiff according to the statement hereto appended marked "Exhibit A," and made a part hereof, and which personal property belong- ing to and in the possession of said plaintiff was wholly destroyed by said fire contrary to the statute in such case made and pro- 488 Common Law Practice in Pennsylvania. vided, and against the dignity and peace of this Commonwealth. Yet the said defendant, although often requested so to do, has not at any time made any satisfaction or amends to the plaintiff for the said damages sustained, but has and still doth refuse to do so to the damage of the plaintiff dollars. (Let "Exhibit A" set forth a true and full statement of the property destroyed and the value of each item.) LH., Plaintiff's Attorney. (Date.) (Affidavit when required.) UPON A CLAIM FOR A PENALTY FOR NOT SATISFYING A JUDGMENT. (For the commencement and conclusion see first and second forms.) The said defendant in a certain suit or action brought in the Court of Common Pleas of said County, of Term, 19 . No. , and prosecuted by the said defendant against the said plaintiff, obtained on the day of , 19 , a judg- ment against the plaintiff for dollars, which was duly entered on the records of said court in the office of the prothon- otary. On the day of , A. D. 19 , at the county aforesaid, the said plaintiff paid the said defendant the amount of said judgment and the costs in said suit and tendered his reason- able charges and costs of office for entering satisfaction of said judgment on the records of said court and requested the said defendant to enter satisfaction of the said judgment in the said records. Yet the said defendant, notwithstanding the said payment and tender as aforesaid and the request of the said plaintiff, did not within eighty days after said request and payment and tender nor at any time before or thereafter enter satisfaction of said judgment as he was bound to do and should have done, but wholly neglected and refused so to do and still refuses so to do, whereby the said judgment remains on the records of said court unsatis- fied contrary to the Act of Assembly in such case made and provided. By reason whereof the defendant has forfeited to the said plaintiff the sum of dollars, which sum said plaintiff has demanded and requested of the said defendant, yet Of the Statement. 489 the said defendant has refused and still doth refuse so to pay to the damage of the plaintiff dollars. I. K., Plaintiff's Attorney. (Date.) (Affidavit when required.) CHAPTER XIV. Of Judgment by Default after Appearance. I. Judgment by non sum Infor- MATUS. i6. I. Nature of judgment by default. 2 Rule to plead and service. 17. 3. Judgment for want of plea. 18. 4. Irregularities. 19. 5. Withdrawal of appearance. 20. 6. When judgment by default is interlocutory. 21. II. Judgment for Want of an 22. Affidavit of Defense. 23. 7. History. 24. 8. Courts may regulate the prac- 25. tice. 26. 9. Procedure act of 1887. 27. 10. Constitutionality of these acts. 11. Legislature did not intend to 28. extend remedy by act of 1887. 12. When affidavit must be serv- 29. ed. — Return day. 30. 13. Notice. 31. 14. Entry of judgment. a. Must be entered in open 32. court. 33. b. Effect of reversal by su- preme court. 34. c. Should not be entered pend- ing rule for more specific 35. statement. d. Time for entering judg- 36. ment. 37. e. There must be proper serv- ice. 15. Who can file an affidavit. a. Attorneys. b. Municipal corporations. c. Executors, administrators, re- ceivers. d. Terre-tenant. e. Minors and insane persons. f. Corporations. g. Third persons. In what cases is an affidavit re- quired. Instruments for paying money. Scire facias. Mechanics' lien. Appeals from justices of the peace. Judgments. Loans. Book entries. Contract of suretyship. Stock assessments. Promissory notes. What instruments do not re- quire an affidavit. How is necessity of affidavit determined. The defense must be legal. Nature of denials. Averments must be accepted as a verity. How defendant may aver them. Affidavit may be m the nature of a demurrer. Averments dehors the instru- ment. Affidavit is no part of plead- ings. Before whom it may be sworn. Sufficiency. a. In payments and tenders. b. Nonperformance of contract; c. Legality of consideration. d. Want of consideration. e. Actions of rent. f. Fraud. g. Set-off. h. Goods sold and delivered. i. Book accounts. j. A prior adjudication. 490 Of Judgment by Default after Appearance. 491 k. Actions for services. 42. Judgment is final. 1. Corporate officers. 43. Evasive affidavit, m. Statute of limitations. 44. Supplemental affidavit. n. Practice. 45. Opening judgment. 38. If affidavit be insufficient judg- 46. Striking off. ment may be given. 47. Appeals. 39. An affidavit is a waiver of for- 48. Copies. mal defects. 49. Judgment will be reversed only 40. Notice to plead is not a waiver in clear cases. of right to judgment. 50. Second rule for judgment for 41. Judgment for part of claim. want of affidavit. I. Judgment by non sum Informatus or nil Dicit. 1. Nature of judgment by default, (a) In the present chapter,^ we shall consider the subject of judg- ment by default, after appearance ; which is, either by non sum informatus, where the defendant's attorney, having appeared, says that he is not informed of any answer to be given to the ac- tion ; by nil dicit, where the defendant himself appears, but says nothing in bar or preclusion thereof; or, in this state, for want of an affidavit of defense. When judgment by default on non sum informatus is taken (for it is said to be now seldom or nevei used), it is only in cases where judgment is entered in pursuance of a previous agreement between the parties ; or when the plain- tiff's attorney accepts of this kind, after a plea put in by the defendant, which he allows the latter to retract.^* This form of judgment is unknown in practice here. Judgment by nil dicit is either for want of any plea at all, or for want of a plea adapted to the nature of the action or circumstances of the case, or for not pleading in a proper manner, or within the time limited by the rules of the court. 2. Rule to plead and service. By rule of court in Philadelphia and elsewhere after the plain- tiff has filed his statement, he shall enter a rule on the defend- ant to file an affidavit of defense in actions of assumpsit or a plea in actions of trespass within fifteen days, and serve a copy of the statement on the defendant or his attorney of record, if he has one, with a notice of the rule to file an affidavit of de- fense or plea, as the case may be, endorsed thereon, fifteen days a 5 Vale 13786 I Chap. VIII, Appearance, Entry, and Opening of a Default should be consulted in connection with this chapter, la Vasse v. Spicer, 2 Dall, iii. 492 Common Law Practice in Pennsylvania. before taking judgment by default.^ And no dilatory plea will be received, unless the same be filed within four days from the service of a copy of the statement; nor, unless the defendant, by affidavit, show the truth thereof, or some probable matter to induce the court to believe that the fact of such dilatory plea is true.^ A copy of the plea must be served on the plaintiif, or his attorney of record, or it may be treated as a nullity.* 3. Judgment for want of plea.(b) A judgment by default cannot be entered for want of a plea, unless the rule to plead have been entered upon the docket ;' but, if such rule appear upon the record, a default is regular; it will not be presumed, that the prothonotary entered the rule of his own motion." If, however, the rules of court require two con- secutive rules to plead, to entitle the plaintiff to judgment by de- fault, a default cannot be entered on one rule.' A notice to plead is equivalent to notice of a rule to plead, so as to authorize the entry of a default.* A default cannot be entered for want of a plea, without service of a copy of the declaration f and where the defendant files a plea, but neglects to serve a copy on the plain- tiff, or his attorney, a judgment for want of a plea, is irregular; it should be entered for want of service of a copy, on affidavit of the omission.^" ENTERING JUDGMENT FOR WANT OE A PLEA. A. ^ V. >C. P. No. I, March Term, 1912, No. 200. B. J To Esq., Defendant's Attorney. Dear Sir: b S Vale 13813. 2 Phila., rules Nos. 66, 67. 3 Phila., rule No. 71. ' 4 Phila., rule No. 75. See Chap. 13, §2. 5 Bisbing v. Albertson, 6 W. & S. 450. 6 Shaflfer v. Brobst, 9 S. & R. 85. On an issue to try a question of fact from the equity side of the court, judgment cannot be entered against the defendant for want of a plea. Kelly v. Herb, 3 Dist. 284. 7 Green v. Hallowell, 9 Pa. 53. 8 Stroop V. Gross, i W. & S. 139. Notice of a rule to plead should have a date. Stokes v. Kyle, 2 W. N. C. 427. 9 Kuhnle v. Moran, i W. N. C. 19. 10 lyimon V. Howard, i W. N. C. 389. Ot Judgment by Default after Appearance. 493 Enclosed find copy of statement filed in above case. Please take notice of a rule on defendant to plead in fifteen days or judgment sec. reg. Very respectfully yours, E. F., Plaintiff's Attorney. (Date.) County of , ss.: on oath says that on the day of he served the original notice whereof the above is a true and correct copy on Esq., the defendant's attorney, with a copy of the statement filed in this case, personally ( or by leav- ing said notice and statement with an adult in charge of his office). Sworn to and subscribed before me, | 1912. f Indorse the above: A. ^ V. >C. P. No. I, March Term, 1912, No. 200. B. J Proof of service on defendant's attorney of statement and of notice of rule to plead. To the Prothonotary C. P. Sir: Enter judgment against the above-named defendant for want of a plea sec. reg. E. F., Plaintiff's Attorney. (Date.) 4. Irregularities. If any of the proceedings on the part of the plaintiff be ir- regular, and the irregularity be not waived, by any act of the de- fendant, or, if judgment be signed when, in fact, the defendant has not been guilty of any default, the court, upon motion, will set aside the judgment." But, if the defendant, being informed of a judgment irregularly entered for want of an appearance, neglect, for two terms, and until after writ of inquiry executed, to make such motion, it will not be reversed on error.^^ The plaintiff also may waive or relinquish judgment by default, whether irregularly or regularly entered, by getting the clerk to strike it out. 11 Otherwise, if the defendant's attorney make no excuse for his laches. Association v. McBride, 4 W. N. C. 477. 12 Crosby v. Massey, i P, & W. 229, 494 Common Law Practice in Pennsylvania. S. Withdrawal of appearance. After appearance and plea, if the court, without objection by the plaintiff, permit the defendant's attorney to withdraw his ap- pearance and plea, no judgment can be given, until a new ap- pearance is entered by or for him ; and, for that purpose, a rule may be obtained by the plaintiff. No judgment is authorized by the common law or statute, in such a state of the case. As the court would not allow an appearance to be retracted, against the plaintifif's consent, nothing remains for him, in such case, but to rule the defendant into court, to try the cause in the usual way.^^ The defendant's counsel should not be permitted to withdraw his general appearance without notice to the plaintiff or his coun- sel. The proper practice is to require the defendant's counsel to file a petition setting forth the reasons for withdrawing his appearance and thereupon to grant a rule.^^* FORM OF RULE TO withdraw APPEARANCE. A. B. "I C. P. No. V. > Term, 1912. C. D. J No. And now (date) on motion of E. F., the court grant a rule on defendant to show cause why the appearance of said E. F. for defendant should not be withdrawn. Rule returnable 10 a. m. (Signature of Judge.) 6. When judgment by default is interlocutory. A judgment by default has on some occasions been regarded as interlocutory, for example when the judgment is for the non-production of books ;^* also in debt on bond with a collateral condition against one of several defendants;^" also a judgment by default in an action on the case without anything in the state- ment to indicate the amount.^® 13 Michew v. McCoy, 3 W. & S. 502. See Chap. VII, §4. 13a Daley v. Iselin, 212 Pa. 279. 14 Cowles V. Cowles, 2 P. & W. 139. 15 O'Neal v. O'Neal, 4 W. & S. 130. 16 Phillips V. Hellings, s S. & S. 44- See McCune v. Hogan, 3 P. L. J. 70; Winrow v. Duncan, Bright. Costs 312. Of Judgmsnt by Dsfault after Appsarance. 495 II. Judgment for want of an Affidavit of Defense. 7. History. No part of our system is more effective to the speedy admin- istration of justice, than the one now to be considered. Its origin was an agreement of the members of the bar, in 1795, with the exception of two (who neither gave nor took judgments under it), that judgments should be confessed, unless the de- fendant in the action made an affidavit, "that, to the best of his knowledge and belief, there was a just defense to the action."" Some years after the making of this agreement, with full ex- perience of its effects, the judges of the supreme court made a similar rule for the circuit court, then held by them, and it was practiced under, for many years, without objection.^' A simi- lar rule was adopted by the court of common pleas, in 1809;^' and by the district court, on its organization, in 1812.^" The validity and constitutionality of this rule was fully sustained by the supreme court. ^^ Whilst a very large number of suits were thus terminated, it is obvious, that two classes of cases, and those very extensive, were withdrawn from its operation — those in which a supposed de- fense existed; and those in which a defendant, who might hesi- tate to misstate particular facts, saw but little risk of a prosecu- tion for perjury, from the vagueness and generality required by the rule. To compel the defendant, against whom a prima facie obligation was shown, to exhibit, under oath, the facts on which he rested his defense, and allow the court to draw the legal con- clusions, was very desirable, and was at length accorded by the legislature, in 1853, to the district court of Philadelphia. The system is so useful, and so free from all objections, that, it has gradually been extended to embrace new subjects, and to other counties and courts of the state.^^ 17 Vanatta v. Anderson, 3 Binn. 423. See also in this connection Vol. II. Chapter on Assumpsit. 18 Ibid. 19 I Bro. 237. 20 I Miles 447. 21 Vanatta v. Anderson, 3 Binn. 417. A rule of the quarter sessions, authorizing judgment for want of an affidavit of defense, in suits on for- feited recognizances, was sustained by the supreme court. Harres v. Commonwealth, 35 Pa. 416. 22 It was extended to the court of common pleas of Philadelphia, by act of 14 April, 1846, P. L. 328, 3 Purd. §28, p. 3640, and to all the courts 496 Common Law Practice in Pennsyi,vania. By the act of 1835 in all actions instituted on bills, notes, bonds or other instruments of writing for the payment of money, and for the recovery of book debts, and in all actions of scire facias on judgments, and on liens of mechanics and materialmen, the plaintiff may, on or at any time after the third Saturday suc- ceeding the return day, on motion, enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defense, stating therein the nature and character of the same: provided that, in all such cases, no judgment shall be entered, unless the plaintiff shall, within two weeks after the return of the original process, file in the office of the prothonotary of the court, a copy of the in- strument of writing, book entries, record or claim on which the action has been brought.^^ This section has been extended to all actions brought on contracts for the loan or advance of money, whether the same be reduced to writing or not: provided that, in all such cases, no judgment shall be entered, unless the plain- tiff, within two weeks after the return of the original process, have filed in the office of the prothonotary of the court, an affi- davit, setting forth the terms of such loan or advance, with the date thereof.** By a subsequent act, it is declared to embrace all actions brought on bonds or recognizances of bail in error, or bonds of sureties for stay of execution; and is extended to all actions on bonds or recognizances of special bail, or bonds given by debtors and their sureties, with the condition prescribed in the act re- lating to insolvent debtors.*^ And by a later statute, it has been enacted, that it shall not be lawful, in any civil suit or action in any court in this commonwealth, wherein an affidavit of claim is or may be required, and in which the plaintiff, by himself, or his agent or attorney, shall have filed an affidavit of claim, set- ting forth the nature and amount thereof, and shall have also of common pleas of the commonwealth, by act 3 April, 1851, §8, P. L- 307, but this salutary law was repealed, in the following year, by act 8 March, 1852, P. L- 121. For the several special acts, relating to the courts of particular counties, see 3 Purd. §28, p. 3640, note (2), 3 Purd. §22, p. 3639. 23 Acts 28 March, 1835, §2, P. L. 89, 3 Purd. §22, p. 3639; 12 March, 1842, P. L. 66, 3 Purd. §25, p. 3640, 24 Act II March, 1836, §14, P. L. 79, 3 Purd. §24, p. 3639. 25 Act 12 March, 1842, P. L. 66, 3 Purd. §25, p. 3640. Of Judgment by Default after Appearance. 497 filed a declaration or statement, for the defendant to enter a rule of reference, unless he shall have previously filed an affi- davit of defense, specifically setting forth the nature and char- acter of the same; and a rule of reference shall in no case pre- vent the plaintiff from moving for, or the court from entering, judgment for want of sufficient affidavit of defense.^' It is provided by the act of 1836, that in all actions upon any record of the same court, it shall not be necessary to file a copy of such record in the prothonotary's office, to enable the plain- tiflf to enter judgment for want of an affidavit of defense, if he shall have complied with the other requisitions of the act.''' And by the act of 1842, that in actions of scire facias upon mortgage, it shall not be necessary to file a copy of the mortgage, if the writ of scire facias shall contain a statement of the date of re- cording the same.^' And that where the plaintiff sues an as- signee, in fact or in law, of an instrument of writing for the payment of money, it is shall not be necessary for him to file a copy of the assignment, provided he shall, within two weeks after the return day, have filed a sufficient declaration, setting forth the grounds of his claim, and of the defendant's liability.^* So, it is provided by the act of 1857 that in actions brought for the recovery of ground rents, in the county of Philadelphia, judg- ment may be entered as in case of suits upon mortgages, pro- vided the plaintiff shall file a statement, referring to the book and page of the recorder's office where the ground rent deed is recorded; and if the ground rent has been assigned, shall also file a statement, referring in like manner to where the assign- ment or assignments are recorded; which recording shall be re- cited in the prsecipe and summons, together with the names of the parties to such deed or deeds; in which case, the plaintiff shall be entitled to judgment, without filing copies or a declara- tion.'" 26 Act 14 May, 1874, P. L. iS9, Purd. 1826. This is merely a declara- tory statute. Hoflfman v. Locke, 19 Pa. 57; Taggart v. Fox, i Grant 190. 27 Act II March, 1836, P. L. 76, 3 Purd. §23, p. 3659. 28 It would seem, that the place of record should also be stated; and this is the usual practice. 29 Act 12 March, 1842, P. L. 66, 3 Purd. §25, p. 3640. 30 Act 8 April, 1857, §2, P. L. 17S. 2 Purd. §22, p. 1810. In the other counties of the state, the act 8 April, 1840, P. L. 249, 3 Purd. §21, p. l8o9< requires the filing of a copy of the deed on which the suit is brought. 32 498 Common Law Practice in Pennsylvania. 8. Courts may regulate the practice, (c) The courts of common pleas and quarter sessions may regu- late the practice on this subject keeping of course within the statutory limits.** They may therefore make rules declaring that items of accounts and averments in the statement of claims not denied by an affidavit shall be taken as admitted ;'* also that statements of claim be filed in appeals from justice and that judgments be taken fifteen days after service for want of a suffi- cient affidavit of defense;^* also that an affidavit of defense to a scire facias on a municipal lien shall be required,'* for the service of an amended statement and the entry of judgment for want of an affidavit of defense within a fixed reasonable time.*' These courts may also formulate rules requiring personal rep- resentatives to file affidavits of defense,*' to which are given a construction most favorable to the personal representatives.*^ g. Procedure act of 1887. The procedure act of 1887 provides that the plaintiff shall be at liberty in each of the actions of assumpsit and trespass to serve a copy of his statement on the defendants. If such service be made not less than fifteen days before the return day of the writ, it shall be the duty of the defendant in the action of as- sumpsit to file an affidavit of defense on or before the return day. By another provision if the plaintiff shall neglect to serve his statement at least fifteen days before the return day of the writ, he may file it on or at any time after the return day ; and in the action of assumpsit, unless the defendant shall file a suffi- cient affidavit of defense within fifteen days after notice that the statement has been filed, the plaintiff may move for judg- ment for want of it.** c I Vale 149. 31 Hickernell v. First Nat. Bank of Carlisle, 62 Pa. 146; Blair v. Ford China Co., 26 Super. Ct. 374; City of Wilkes-Barre v. Felts, 134 Pa. 529; Chain v. Hart, 140 Pa. 374; Vanatta v. Henderson, 3 Binn. 417. 32 Blair v. Ford China Co., 26 Super. Ct. 374. 33 Chain v. Hart, 140 Pa. 374. 34 City of Wilkes-Bare v. Felts, 134 Pa. 529. 35 Jones v. Gordon, 23 W. N. C. 302. 36 Helffrich v. Greenberg, 206 Pa. 516; Johnson v. Smith, 158 Pa. 568. 37 Wireman v. Insurance Co., 20 W. N. C. 299; Honeywell v. Mc- Guire, 5 Kulp 513. 38 May 25, 1887, §§4, 6, P. L. 272, 3 Purd., pp. 3624-363S. Op Judgment by Default after Appearance. 499 10. Constitutionality of these acts. The constitutionality of the earlier legislation was questioned, but sustained by the supreme court.'^ "What provision is there in the constitution," said Chief Justice Black, "forbidding the supreme authority of the state to make a regulation for the sup- pression of that most mischievous, most demoralizing, and most loathsome of all practices — the making of false defenses to hon- est claims in courts of justice? None. Then, in nothing does this law violate the constitution." — "Nobody has yet invented a better mode of testing a party's belief than his oath. It is not always effectual ; but, wherever it has been adopted, it has done much to purify the stream of justice, and to remove obstructions from it."*" And in another case, the same learned chief justice said : — "The affidavit of defense law is a just and necessary one, and its influence on the administration of justice has been most salutary; the only regret of those who are well informed on the subject is, that it is not universally adopted in all the courts of the state"*^ The act of 1887*'' has also been pronounced con- stitutional and intended to prescribe the only proper method for taking judgment for want of an affidavit of defense; it super- sedes all other methods.*' 11. Legislature did not intend to extend remedy by act of 1887. The legislature did not intend by the act of 1887 to extend the remedy by judgment for want of an affidavit of defense to' actions ex delicto, but to confine it to actions ex contractu, as they were before passage of the act. Nor are mixed cases of contract and tort included. Says Justice Green: "The plain inference from the language of both sections is that it was the intention of the legislature to limit this remedy to causes of actions which were either actually in writing or contracts the whole details of which could be plainly set down in writing, 39 Hoffman v. Locke, 19 Pa. 57; Lawrance v. Borm, 86 Pa. 225; Ran- dall V. Weld, 86 Pa. 357; Lawrance v. Smedley, 6 W. N. C. 42. 40 Taggart v. Fox, i Grant 190. 41 Lord V. Ocean Bank, 20 Pa. 387. 42 May 25, P. L. 271, 3 Purd. §13, p. 3615. 43 Martin v. Waters, 24 W. N. C. 129. See Commonwealth v. Mc- Cutcheon, 20 W. N. C. 365 ; Third Nat. Bank v. McHenry, 20 W. N. C. 366; Kauffman v. Jacobs, 4 C. C. 462. 50O Common Law Practice in Pennsylvania. with particular terms and limitations, so that a liability for the payment of a definite sum of money could be expressed."** While the earlier acts were in force if no statement was filed before the return-day of the writ, the judgment for want of ap- pearance could not be sustained.*' The act of 1887, it has been declared, does not alter this practice. Nor can a rule of court which allows the entry of judgment for want of an affidavit of defense, where a statement is on file for twenty days without notice thereof to the defendant be sustained. "Of course," says Swartz, P. J., "this does not mean that the plaintiif may not have judgment where he served his statement fifteen days be- fore the return-day. If the plaintiff does not serve his state- ment fifteen days before the return-day, he cannot take judg- ment unless he conforms to the requirements of the act of 1887. This demands that the defendant must have notice of the filing of the statement. Without such notice ; the judgment is irregu- lar. No rule of court can allow him to omit that which the leg- islature has required."** Of course, whenever an affidavit of defense is not required, the plaintiff is not entitled to a judgment for want of a sufficient affidavit of defense.*' 12. When affidavit must be served. — Return-day. (d) In interpreting this statutory requirement if the statement is filed and served less than fifteen days before the return-day the plaintiff is not required to file and serve another statement on or after the return-day, but may take judgment fifteen days after the return-day, if no affidavit of defense has been filed.** Again after service of the writ has been made and a rule taken to file an affidavit of defense within fifteen days, judgment may be taken by default although a return-day has not intervened.*' d I Vale 203, 376, 389. 44 Corry v. Pennsylvania R. Co., 194 Pa. 516, 521; Coyle v. SchruU, 49 Super. C. 386. 45 Marlin v. Waters, 127 Pa. 177. 46 Hanna v. Massey, 20 Dist. 921, 922; Standard Cable Co. v. Johns- town Tel. Co., 26 Super. Ct. 432. 47 Bartoe v. Guchart, 158 Pa. 124; Hutchinson v. Woodwell, 107 Pa. 509 ; Gottman v. Shoemaker, 86 Pa. 31 ; Strock v. Commonwealth, 90 Pa. 272; Yates V. Borough of Meadville, 56 Pa. 21; Barr v. Duncan, 76 Pa. 395- 48 Blake v. Pennsylvania R. Co., 12 Dist. 661. See §i4d for full consideration of this topic. 49 Meadville School District v. Rieman, 31 C. C. 50. Of Judgment by Default after Appearance. 501 13. Notice. If the statement be not filed until after the return-day, notice of the filing must be given.°" That such notice was given should appear ; to serve a copy is not sufficient.^^ An affidavit of service of the attorney for plaintiff that it is a true copy and shall give of the notice must state that the notice was in writing and how it was served.'^ A court of common pleas may make a rule that notice shall consist of a copy of the statement with the certificate the date of the filing thereof. ^^ And when the court rule thus requires judgment cannot be entered for want of an affidavit of defense where the record fails to show that the defendant has had written notice that the statement has been filed and that an affidavit of defense is required.^* Again, if a court rule thus provides the judgment may be entered on praecipe to the pro- thonotary without taking a rule for judgment.^^ But if the plain- tiff wishes to hold the defendant to an affidavit immediately on his going into court on the return-day he must serve a copy of the statement. If, however, he chooses to wait until the defend- ant is in court, as he is legally supposed to be on the return-day, then the plaintiff need only file his statement and give notice to him.°° But if a copy of the statement be not served before the return-day, or notice of its filing be not given after the return- day, a judgment cannot be taken for want of an affidavit of de- fense, and if taken will be stricken off;"' and if a rule of court should require the plaintiff to do something to obtain judgment for want of an affidavit of defense, not required by the legisla- ture, such a rule would be void.'* Again, a rule of court provid- ing that "in all actions of scire facias, judgment by default may be taken after the return-day, if the defendant shall have neg- 50 Connolly v. Wilson, 6 C. C. 421 ; Steinbrecker v. Delaware & Hud- son R. Co., IS Dist. 665; Roberts v. Buffalo R. Co., 5 Dist. 124. 51 Honeywell v. Tonery, S Kulp 360; Graham v. Blank, 6 Dist. 133. 52 Connolly v. Wilson, 6 C. C. 421. 53 Standard Underground Cable Co. v. Johnstown Tel Co., 26 Super. Ct. 432. 54 Connor v. Leyon, 13 Super. Ct. 502. 55 Louisville Cider & Vinegar Co. v. Walker, 47 P. L. J. 283. 56 Martin v. Waters, 127 Pa. 177; Commonwealth v. Bangs, 22 Super. Ct. 403. 57 Marlin v. Waters, 127 Pa. 177. 58 Standard Underground Cable Co. v. Johnstown Tel. Co., 26 Super. Ct. 432. Common Law Practice in Pennsylvania. lected to file an affidavit of defense on or before the return-day or within fifteen days after the service of the writ" is applicable properly to an action of scire facias on a municipal lien for pav- ing." 14. Entry of judgment. a. Must be entered in open court. "To entitle a plaintiff," says Judge Orlady, "to judgment for want of a sufficient affidavit of defense all the essential in- gredients of a complete course of action must affirmatively ap- pear in the statement and the exhibits which are made part there- of. The statement of demand must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action ; by which is meant such averments of fact as, if not con- troverted, would entitle him to a verdict for the amount of his claim."*" The obligation to file the affidavit is fixed by the act of May 25, 1887, and the practice of taking judgment follows that which prevailed in 1835 in debt and assumpsit.'^ No judg- ment can be entered for want of an affidavit under the act with- out a motion in open court."" Courts, however, have power to make rules allowing judgment to be entered on praecipe by a prothonotary.®^ They also have power to make a rule providing that notice shall consist of a copy of the statement with the certificate of the attorney for the plaintiff that it is a true copy, and shall give date of filing thereof, and give judgment for want of an affidavit filed in accordance with such notice.** When 59 City of Wilkes-Barre v. Felts, 134 Pa. 529. 6q Commonwealth v. Magee, 24 Super. Ct. 329; Barr v. McGary, 131 Pa. 401. 61 Corry v. Pennsylvania R. Co., 10 Super. Ct. 232. Act of March 28, 183s, P. L. 88. By Phila. rule of court "a copy of the affidavit of defense must be served on the plaintiff or his attorney within forty-eight hours after the filing thereof; otherwise it may be treated as null, and judgment entered, on motion and filing an affidavit that a copy of the affidavit of defense has not been served as required by this rule." Rule 3, §2. 62 Doud V. Citizens' Ins. Co., 6 C. C. 329; Blair v. Warden, 4 C. C. 464; Oswego River Pulp Co. v. Delaware Water Gap Pulp Co., 10 C. C. 312. 63 Tobyhanna & Lehigh Lumber Co. v. Home Ins. Co., 167 Pa. 231; Honeywell v. Tonery, 5 Kulp 360. 64 Standard Underground Cable Co. v. Johnstown Tel. Co., 26 Super. St. 432. Of Judgment by t)EFAui,T after Appearance. 503 judgment is entered for want of an affidavit under a supposed rule of court, which in fact does not exist, the judgment may nevertheless stand if covered by the statute.** To raise the ques- tion whether an affidavit is needed the proper practice is for the plaintiff to enter a rule for judgment for want of an affidavit of defense ; a rule by the defendant to show cause why he should not be relieved from filing an affidavit is not proper.** After judgment for want of an affidavit for an unascertained debt, a writ of inquiry must issue.*^ Exception should be filed to the affidavit before taking a rule for judgment if required by the rule;*° and if the plaintiff amends his affidavit of claim, he must serve a new rule before he can have judgment.*' Lastly judg- ment for want of an affidavit of defense cannot be amended to a judgment for want of appearance after an appearance has been entered."* b. Effect of reversal by supreme court. If the supreme court reverses a decision refusing judg- ment for wa.nt of a sufficient affidavit of defense, with instruc- tions to enter judgment for the plaintiff, unless other legal or equitable cause for refusing judgment be shown, these should be followed. On the return of the record to the court below the plaintiff is entitled to have his rule for judgment made absolute, unless by supplemental affidavit some legal or equitable reason for denying the motion then pending is brought to the attention of the court.'^ By such an order of the supreme court the status of the case is fixed, and the court below has no power to go back to an earlier stage of the case and determine on motion of the defendant that the claim filed was insufficient and strike it from the record, a question not raised by the affidavit of defense.'^ c. Should not be entered pending rule for more specific statement. Judgment should not be entered for want of an affidavit 6s McCleary v. Faber, 6 Pa. 476. 66 Commonwealth v. Payton, i Dist. 609. 67 Coates y. McCann, 2 P. A. Bro. 173. 68 Randall v. Dougherty, 2 Luz. L. R. 17s; Traders' Nat. Bank v. Wood, 6 Kulp 482; Davis v. Hitz, 12 Lane. L. Rev. 238. 69 Brood V. Winsborough, 6 Lane. L. Rev. 20. 70 Gallagher v. Glasgow, 13 W. N. C. 94. 71 Titusville Iron Works v. Keystone Oil Co., 130 Pa. 211. 72 Ibid. 504 Common Law Practice in Pennsylvania. pending a rule for a more specific statement f' nor while a mo- tion to dismiss for want of jurisdiction is pending.'* But when an affidavit is evasive the court will grant judgment for want of a sufficient affidavit even in the absence of any rule regulating the time and mode of taking such judgments.'^ The court may consider fractions of a day so far as to inquire into the actual priority of an affidavit filed and judgment.'* If an order re- moving an action to the federal court be made before the expira- tion of the time to file an affidavit of defense, the court cannot, on rescinding the order, give judgment for want of an affidavit. The defendant is entitled to notice of the rescinding order and a reasonable time thereafter to file his affidavit." d. Time for entering judgment. Under the rules of the court judgment may be entered for want of an affidavit at any time after the defendant is in de- fault;'* such entry however is barred by a four years' delay." It may also be entered against a defendant who has not ap- peared.*" The filing of the statement before the return day of the writ is a condition precedent to the right of the plaintiff to take judgment for want of an appearance.*^ But as a matter of right an affidavit of defense may be filed at any time be- fore judgment, no leave of court is necessary.*^ In the absence of any exception and appeal under the act of 1874 providing for appeals from the refusal of judgment for want of a sufficient affidavit of defense, and after a plea ad- versely obtained and a trial on the merits before a jury, the case 73 Lukens v. Rea, 29 W. N. C. 65. 74 Kinney v. Mitchell, 14 Dist. 301. 75 Sharpless v. Stirman, 4 Dist. 569. 76 Bordentown Bkg. Co. v. Restein, 214 Pa. 30. ^^ Muir V. Preferred Accident Ins. Co., 203 Pa. 338, revg. 10 Dist. 577. 78 Slocum V. Slocum, 8 W. 367. 79 Standard Mutual Live Stock Co. v. Williamson, 10 Kulp 266. 80 Slocum V. Slocum, 8 W. 367 ; Clark v. Dotter, 54 Pa. 215. But see contra, Miner v. Graham, 24 Pa. 491. 81 Melloy V. Burtis, 124 Pa. 166; Kohler v. Luckenbaugh, 84 Pa. 258; Foreman v. Schricon, 8 W. & S. 43; Dennison v. Leech, 9 Pa. 164; Black V. Johns, 68 Pa. 83; Graham v. Welsh, 6 Dist. 133. 82 Bordentown Bkg. Co. v. Restein, 214 Pa. 30. Of Judgment by Default after Appearance. 505 has passed the stage at which the plaintiff may properly ask for a summary judgment.*^ Judgment for want of an affidavit of defense may be entered on the return-day provided a copy of the statement with notice to file an afiSdavit be served on the defendant fifteen days before the return-day, or judgment may be taken after the return-day if the defendant has been served with fifteen days' notice of the filing of the statement.** Local acts which permitted the taking of judgment at a different time from that prescribed by the act 1887 were by that act abrogated.*' This act however was held not to abrogate a rule of court providing for the entry of judgment for want of an affidavit by the prothonotary, not in term time, on the praecipe of the plaintiff's attorney.'® Nor is the act mandatory on the plaintiff, he may therefore extend by agreement the time for filing an affidavit.*' The intervention of fifteen days and the return-day, or a longer period, between the service of the statement and the tak- ing of a judgment satisfies the law and the judgment will be reg- ular.** A hiatus of fourteen days next preceding the return-day was never intended.*^ In Philadelphia county a judgment for want of an affidavit cannot be entered in a proceeding on a me- chanics' lien until the third Saturday after the return-day."" 83 Levinson v. Blumenthal, 14 Dist. 628; O'Neal v. Rupp, 22 Pa. 395; Johnston v. Ballentine, i W. N. C. 626; Edison Electric Co. v. Johns- town Electric Co., 32 W. N. C. 327 ; Auburn Bolt & Nut Works v. Shultz, 143 Pa. 256, affg. 6 C. C. 346. 84 Newbold v. Pennock, 154 Pa. 591 ; Tobyhanna & Lehigh Lumber Co. V. Home Ins. Co., 167 Pa. 231; Marlin v. Waters, 127 Pa. 177; Shepard v. Bohem, i Super. Ct. 164; Graham v. Blank, 6 Dist. 133; Honeywell v. Tonery, 5 Kulp 360. 85 Marlin v. Waters, 127 Pa. 177 ; Newbold v. Pennock, 154 Pa. 591 ; Blake v. Pennsylvania R. Co., 12 Dist. 661. 86 Oswego River Pulp Co. v. Delaware Water Gap Pulp Co., 10 C. C. 321; Tobyhanna & Lehigh Lumber Co. v. Home Ins. Co., 167 Pa. 231. 87 Muir V. Preferred Accident Ins. Co., 203 Pa. 338, revg. 10 Dist 577. 88 Sheppard v. Bohem, i Super. Ct. 164; Kunes v. McCloskey, 10 C. C. 542; Commonwealth v. Moore, 21 W. N. C. 572; Roseman v. Haydock, 21 W. N. C. 121. 89 Weigley v. Teal, 23 W. N. C. 521; Newbold v. Pennock, 154 Pa. 591; Tobyhanna & Lehigh Lumber Co. v. Home Ins. Co., 167 Pa. 231; North V. Yorke, 174 Pa. 349. go The practice is not according to Procedure Act of 1887. Rushland V. Alexander, 19 C. C. 577- 5o6 Common Law Practice in Pennsylvania. The defendant may file an affidavit of defense at any time be- fore the return of a rule for judgment though the plaintiff would have been*^ entitled to judgment without such rule, but in such case a general affidavit is not sufficient. He has the whole of the last day established by the rule for this purpose.*^ A judgment therefore entered on the same day on which the affidavit is filed may be stricken off.*^ The time of filing an affidavit cannot be proved by parol."* The filing of an affidavit is a waiver of the objections that the copy was not marked "filed," nor noted on the docket.*" And when no affidavit nor receipt for one can be found, judgment for want of an affidavit may be taken notwith- standing the fact that the docket entries show the filing of an affidavit.®* Lastly an agreement for extending the time of filing must be regarded.*^ e. There must be proper service. Besides serving a copy of the statement on the defendant be- fore taking judgment for want of an affidavit,'* and giving notice to the defendant of the filing of the plaintiff's statement, the rec- ord must show a proper service.®' Mere service of a copy of the plaintiff's statement without notice that the original statement has been filed and that judgment will be entered if no affidavit is filed, is not sufficient to authorize a judgment for want of an affi- davit.^"* The sheriff's return that he served a copy of the plain- tiff's statement is conclusive between the parties.^"^ Nor will a judgment for want of an affidavit be stricken off where the state- 91 Gillespie v. Smith, 13 Pa. 65; Dickson v. Tunstall, 3 C. P. Rep. 128, Ritter v. Leonard, 2 Pars. 255. 92 Duncan v. Bell, 28 Pa. 516; Morehead v. Pajme, I Am. 1,. J. 255; Porter v. Hower, 9 C. C. 283. For fractions of a day see 214 Pa. 30. 93 Guernsey v. Hunt, 4 C. C. 480. The court may inquire into the actual priority of an affidavit of defense filed and a judgment for de- fault entered on the same day. Bordentown Bkg. Co. v. Restein, 214 Pa. 30. 94 Brun V. David, i P. A. Bro. 323. 95 Laird v. Campbell, 92 Pa. 470. 96 Woodside v. Stevenson, 5 W. N. C. 235. 97 Muir V. Preferred Accident Ins. Co., 203 Pa. 338, revg. 10 Dist. 577. 98 Sturdevant v. Austin, 5 Kulp 26 ; Connolly v. Wilson, 6 C. C. 421 ; Miner v. Graham, 24 Pa. 491. 99 Connolly v. Wilson, 6 C. C. 421. 100 Graham v. Blank, 6 Dist. 133. loi Hess V. Weingartner, 5 Dist. 451. Of Judgment by Default after Appearance. ■ 507 ment was filed with the praecipe because the copy was served on the defendant the day before the service of the writ.^°^ And when the plaintiff serves a statement or copy of a statement which has never been filed of record the defendant is not re- quired to take any notice of it or to file an affidavit of defense.^"^ But where a copy of the statement is served on the defendant per- sonally, and not on his attorney of record, a judgment entered for want of an affidavit will be opened when it appears that the attor- ney had no actual notice of the filing/"* In foreign attachment when the counsel for the defendant enters a rule on the plaintiff to show cause of action and why the attachment should not be dissolved and signs his name to the praecipe as counsel for the defendant, this is an appearance by him, and he must file an affi- davit.^"° Finally the service of an alias summons does not bring the defendant within the jurisdiction of the court as of the date of issuing the original summons. When, therefore, the original summons is not served, a copy of the plaintiff's statement served on the defendant prior to the issuing of the alias summons is not sufficient to justify a judgment for want of an affidavit.^"* 15. Who can file an a£fidavit.(e) In general, the affidavit of defense must be made by the de- fendant, or by some one in his behalf.^"' The affidavit of any other person than the defendant is not sufficient, unless he be ab- sent or sick;^"^ even though the facts are peculiarly within the knowledge of the affiant ; in such case the defendant should make the affidavit, on information and belief.^"" Nor can the affidavit be made by the defendant's attorney, on the information of his client.^^" But an affidavit may be made by a third person, who is e I Vale 163, 172. 102 Gorman v. Hibernian B. & L. Association, 154 Pa. 133. 103 Medler v. Madlinger, 2 Dist. 687; Phila. Cloak & Suit Co. v. Wilkinson, 9 Dist. 68; Simon v. Edouard Hotel Co., 18 Dist. 200. 104 Weir V. Craige, 13 C. C. 46. IDS Pain's Pyro-Spectacle Co. v. I,incoln Park Co., 19 C. C. 23. 106 First Nat. Bank of Tyrone v. Cooke, 3 Super. Ct. 278. 107 Marshall v. Witte, i Phila. 117; Clymer v. Fitler, i W. N. C. 626. 108 Clymer v. Fitler, i W. N. C. 626. See Sleeper v Dougherty, 2 Wh. 177. 109 Philadelphia v. Peterson, 3 W. N. C. 292. And see Cumberland B. & L. Association v. Brown, 4 W. N. C. 494. no Crine v Wallace, i W. N. C. 292. S08 Common Law Practice in Pi;nnsyi,vania. interested in the event of the suit ; as, by an attaching creditor ;^^^ or, in a scire facias on a mortgage, a purchaser at sheriff's sale, who, since the commencement of the suit, has sold the premises, with a covenant against the mortgage.^^* An affidavit, however, by a mere stranger to the contest, who shows no interest in the question, will be disregarded ;^^^ thus, in an action against the indorser of a note, an affidavit by the maker, averring, on in- formation and belief, a failure to give notice of nonpayment, is not sufficient — he showing no interest in the question.^^* An affidavit may be. made by the defendant even though he be an incompetent witness on the trial of the cause ;^^° also by one of two defendants "for himself and his co-defendant,^'* and a surety may file one in the suit against his principal.''^ a. Attorneys. An attorney for the defendant may make an affidavit, but he must aver that it is made on his own personal knowledge, or on such information as would have justified the defendant in swear- ing to the facts averred,"* and also some reason why the defend- ant cannot make it.''* b. Municipal corporations. The act of April 21, 1858,"° exempted municipal corporations, which was not repealed by that of 1887.'-' This exemption in- 111 Sleeper v. Dougherty, 2 Wh. 177; Hunter v. Reilly, 36 Pa. 509; Citizens' Nat. Gas Co. v. Waynesburg Nat. Gas Co., 210 Pa. 137. 112 Ffaley v. Steinmetz, 22 Pa. 437. 113 Bancroft v. Sterr, i W. N. C. 132; Gross v. Painter, i W. N. C. 154; Stollaker v. Lardner, 1 W. N. C. 169; Philadelphia v. Devine, i W. N. C. 3S8; Russell v. Foran, i W. N. C. 470; Philadelphia v Gross, 2 W. N. C. 429. 114 Blew V. Shock, i W. N. C. 612. 115 Schackerman v. Bottrath, i W. N. C. 149; Reist v. Reist, 11 York 123; Robinson v. Arnolds, 23 C. C. 558. 116 Bentzel v. Pfaltzgroff, i York 202. But see Commonwealth v. Snare, 16 York 26. 117 Urich V. Zern, 2 Dist. 55. 118 Albright v. Fritz, 21 C. C. 444; Safety Banking & Trust Co. v. Conwell, 28 Super. Ct. 237. H9 Snyder v. Haas, 8 Del. 35; Evans v. Boon, 27 W. N. C. 574; Rus- sell V. Foran, i W. N. C. 420; Wilkinson v. Brice, 148 Pa. 153 120 §8, P. L. 387, 3 Purd. §19, p. 3637. 121 Garrard v. Allegheny Co., 2 Pitts. 338; Malone v. Philadelphia, 132 Pa. 209, affg. 7 C. C. 613. Of Judgment by Default after Appearance. 509 eludes a county,"- township,^^^ poor district/''* and borough;^'" nor can the exemption be waived.^^® The act of 1893 expressly exempted municipal corporations in actions of assumpsit,^^^ which is again declared in the act of 1909.^^* Though not required to file an affidavit of defense in such actions a claimant is not de- prived of an adequate and specific remedy at law entitling him to proceed by mandamus.^^® c. Executors, administrators, receivers. Prior to the act of 1887 executors and administrators were under no duty to file an affidavit of defense in actions involving transactions which occurred during the life time of the de- cedent.^'" This rule has not been changed by that act."^ But such an affidavit is required of personal representatives of a decedent where suit is brought after the decedent's death, even though the debt was incurred in administering the estate.*''^ A court of common pleas, however, has power by rule of court, to require all parties sued in a representative capacity to file an affidavit of defense and to enter judgment for want of it.^'^ But a court rule requiring an executor to file an affidavit within fif- 122 Garrard v. Allegheny Co., 2 Pitts. 338. 123 Halsey v. Denison Township, 2 Luz. L. Obs. 312; Barrett v. Ply- mouth Township, 12 Montg. 120. 124 James v. Fell Township Poor Board, 7 Dist. 12. 125 Bethlehem City Water Co. v. South Bethlehem Borough, 14 Dist. 720. 126 Ibid. 127 April 26, §1, P. L. 26, 3 Purd. §20, p. 3637. 128 May 3, P. L. 394, S Purd. §S, p. 5848. 129 Commonwealth v. Philadelphia, 30 C. C. 181. 130 Seymour v. Hubert, 83 Pa. 346, i Vale 164. 131 Mutual Life Ins. Co. of New York v. Tenan, 188 Pa. 239; Malone V. Philadelphia, 132 Pa. 209; Kennedy v. Kennedy, 7 C. C. 311; Perkins v. Humes, 200 Pa. 235. 132 Reackirt v. Flanagan, 40 W. N. C. 375; Palairet v. Fidelity Co., 16 W. N. C. 146; Miller's Petition, 3 Dist. 393. But see Orne v. Ritchie, 4 W. N. C. 477- 133 Helfrich v. Greenberg, 206 Pa. 516; Honeywell v. McGuire, S Kulp 513. By Phila. rule of court an affidavit of defense shall be re- quired from executors, administrators, guardians, committees and others sued in a representative capacity; provided, that affidavit by the de- fendant in such cases, stating that he has made diligent inquiry and has not been able to obtain sufficient information to enable him to set forth particularly the nature and character of the defense, shall be deemed a sufficient compliance with this rule.'' Rule 3, §1. 510 Common Law Practice in Pennsylvania. teen days after service provided letters were granted six months before, is unreasonable and will not be enforced.^'* How have these rules been applied? Where a scire facias on a municipal claim against the property of a minor is served on his guardian the latter must make an affidavit of defense to prevent judgment;"^ also an executor in a debt on an award rendered under a voluntary submission by him ;'^* and to a scire facias on a mortgage executed by him under an order of court ;^^' also for goods bought by an executor ;^^* and on a scire facias on a judg- ment obtained against him,^^" likewise an assignee in bankruptcy in a suit on a mortgage ;^*° and an assignee of a lessee in a suit for royalties.^*^ Unless a rule of court otherwise prescribes a receiver of an insolvent corporation is not required to file an af- fidavit in an action on a contract made by the corporation ;^*^ for it has been uniformly held that judgment cannot be taken against persons sued in a representative capacity for want of an affidavit of defense "because they cannot be supposed conversant of the facts out of which the defense arises. "^*^ d. Terre-tenant. A terre-tenant need not file an affidavit of defense to prevent the rendering of a judgment against lands held by him. Says Dunham, P. J. : "The only thing he is required to do is to put in his plea" that he is not a terre-tenant of the defendant, or that he holds, owns or possesses no land upon which the judgment is a lien.""* Therefore if he does file an affidavit, a rule for want of a sufficient affidavit of defense will be discharged."^ But in a suit on a mortgage against a living mortgagor the personal rep- 134 Honey will v. McGuire, 5 Kulp 513. 135 Charlton v. Allegheny City, i Grant 208. 136 Bayard v. Gillasspy, i Miles 256. 137 Palairet v. Fidelity Co., 16 W. N. C. 146; Miller's Petition, 3 Dist. 393- 138 Reakirt v. Flanagan, 6 Dist. 402; Commonwealth v. Schroeder, 18 Dist. 929. 139 Umberger v. Zearing, 8 S. & R. 163. See Schaeffer v. Herman, I Wood. 479. 140 Hogg V. Braddock, i W. N. C. 147. 141 Guldin V. Butz, 2 Wood. 74. 142 Brandenberg & Co. v. Cox, 19 Dist. 17. Contra,— Hays v. Pittsburgh & C. S. R. Co., 27 P. I,. J. 105. 143 Lewis V. Quigney, i Leh. 188. 144 Kelley & Co. v. Place, 11 Dist. 608. 145 Ibid. Op Judgment by Default after Appearance. 511 resentatives of a deceased terre-tenant who are admitted to de- fend must put in an affidavit of defense.^** e. Minors, insane persons and married women. Minors"' and insane persons^*' are not required to file affi- davits of defense, nor was a married woman prior to the acts of 1887 and '93.^*" But now she must file an affidavit of defense when sued individually for goods sold,^°° in a suit on a mechan- ics' claim,^'^ more generally for a debt contracted dum sola,^'^ ex- cept necessaries,^'^ and execution will be restricted to her prop- erty. In suits against her and her husband judgment cannot be taken against her for want of an affidavit of defense on a book account unless there is an averment in the statement that the goods were sold to her.^"* And in a joint action on a contract against husband and wife, her affidavit averring that she made no contract with the plaintiff will prevent judgment against him.^'° Again, in an action against a married woman and her husband trading in her name, an affidavit by her alleging that he was her business manager, is good for both.^°° Lastly the name of the wife may be stricken off after a rule for judgment has been dis- charged, and a second rule for judgment against him alone may be made absolute.^"' f. Corporations. An officer should make the affidavit on behalf of his corpora- tion though it need not be one who was served,^°^ but an agent,^'° 146 Dutill V. Sully, 9 W. N. C. iS73- 147 Walker v. Morgan, 2 W. N. C. 173; Read v. Bush, 5 Binn. 455. 148 Phila Trust Co. v. Kneedler, 12 Phila. 421; Ash v. Conyers, 2 Miles 94; Alexander v. Ticknor, i Phila. 120. 149 Sheedy v. Tinker, 3 Walk. 308. 150 Harrar v. Croney, 13 C. C. 193- 151 Steinman v. Henderson, 94 Pa. 313. 152 Alworth V. Alworth, 4 Law Times (N. S.) 188; Wanamaker v. Grey, 15 W. N. C. 478; Sharpless v. Elliott, 17 W. N. C. 478. But see Longfeld V. McCuUough, 11 W. N. C. 107. 153 Cooper v Wallace, 7 W. N. C. 468. 154 Sheedy v. Tinker, 40 L. I. 3^°. 155 Eaby v. Stambaugh, 21 Lane. L. Rev. 365. 156 Van Cott V. Webb-Miller, 25 Super. Ct. 51. 157 Eaby v. Stambaugh, 21 Lane. L. Rev. 366. 158 Billington v. Gautier Steel Co., 19 W. N. C. 339; Kinney v. Har- rison Mfg. Co., 22 Super. Ct. 601. 159 Dietrich v. Singer Mfg. Co., 4 Dist. 334. 512 Common Law Practice in Pennsylvania. secretary,^'" or clerk,^^' manager/^^ who has personal knowledge of the transaction may file the affidavit ; in doing so, however, he should give a reason why this is not done by an officer or by the principal."' The affidavit may also be made by a stockholder, who should also state the reason.^** If a statement fails to aver that the defendant is a corporation, the objection cannot be made that the affidavit was not signed by the proper officer.^°° An affi- davit made by the president of a corporation prevents a judgment by default though no formal appearance was entered.^"" g. Third persons. A third person may also make an affidavit when the defendant is ill or absent provided he has personal knowledge.^^' While he need not set forth the sources of his knowledge,^^* it must aver the reason, illness or other of the defendant for making it,^°^ and that it is made in his behalf."" Such an affidavit may be filed by a third person on behalf of the defendant nunc pro tunc.^'^ It must disclose a good defense and set forth the deponent's in- terest in the suit.^'^ In a scire facias on a mortgage a purchaser of the land, who has since sold it, can file an affidavit of de- fense.^'' i6. In what cases is an affidavit required.(f) An affidavit of defense is also required in all actions of as- f I Vale 204. 160 Billington v. Gautier Steel Co., 19 W. N. C. 339. 161 Cowperthvvait v. Roney, 10 W. N. C. 482. 162 Kramer v. Cameron, 17 W. N. C. 223; Phillips v. Allen, 32 Super. Ct. 3S6. 163 Citizens' Natural Gas Co. v. Waynesburg Nat. Gas Co., 210 Pa. 137; Kelly V. Singer Mfg. Co., 4 Dist. 440. 164 Erie Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164; Citizens' Nat- ural Gas Co. V. Waynesburg Nat. Gas Co., 210 Pa. 137. 165 Smith V. Theatrical Beneficial Association, 5 Dist. 326. 166 Deskins v. Reverting Fund Asociation, 3 Dist. 394; Weaver v. Stone, 2 Grant 422; Crosby v. Massey, i P. & W. 229; Morton v. Hood- less, I Miles 46. 167 Kramer v. Cameron, 17 W. N. C. 223; Reiskey v. Gilman, 13 W. N. C. 282. 168 Burkhart v. Parker, 6 W. & S. 480. 169 Griel v. Buckins, 114 Pa. 187; Rau v. Lex, 2 Mona. 87. See Albright V. Fritz, 21 C. C. 444. 170 City V. Gross, 2 W. N. C. 429; Marshall v. Witte, i Phila. 117. 171 Beattie v. Deichler, 15 W. N. C. 224. 172 Blew v. Schock, i W. N. C. 612. 173 Fraley v. Steinmetz, 22 Pa. 437. Of Judgment by Default after Appearance. 513 sumpsit in reply to a sufficient statement wherever founded on a book account,^^* account render/'" contracts in writing or oral, even though the damages claimed are not liquidated,^'* executed or executory contracts,^" policy of insurance,^'' bond,^'° also replevin bond,^*" also an official bond if the claim is ex con- tractu;"^ but not if ex delicto in its nature,^'^ foreign attach- ment;^'^ in all actions wherein debt would have been the proper form of action,^** for the recovery of embezzled money.^" The statute enumerates bills, notes and bonds, as instruments requiring an affidavit of defense; which includes checks. ^°° All the parties to negotiable instruments are within the act, as well the drawers of bills and checks, and the indorsers of notes, as the acceptors and makers ; and this, though they are but contin- gently liable, and the fact of dishonor and notice is not averred in the copy filed.^*' It also includes bank bills and bank post- notes.^** But a legal liability must appear on the face of the in- strument; hence the indorsement of a non-negotiable instrument 174 Blanchard v. Hunter, 7 C. C. 552; Cochran v. Pj'le, 10 C. C. 198; Holland v. Sunbury Iron Works, 9 Super. Ct. 261 ; Cummings v. Rorer, 7 Montg. 54. 175 Wright V. Hopkins, 3 Dist. 240. 176 Commonwealth v. Yeisley, 6 Del. 385; Bradly v. Potts, 155 Pa. 418. 177 Mantua Hall & Market Co. v. Brooks, 163 Pa. 40; Vulcanite Pav- ing Co. V. City of Philadelphia, 131 Pa. 280. 178 Gauler v. Solicitors' Loan & Trust Co., 9 C. C. 634; Hebb v. Kittanning Ins. Co., 138 Pa. 174. 179 Union Trust Co. v. City Trust & Safe Deposit Co., 4 Dist. 381. 180 Barr v. McGary, 131 Pa. 401. 181 Township of Hazle v. Markle, 175 Pa. 405 ; Commonwealth v. Yeisley, 6 Super. Ct. 273. See §24. 182 Commonwealth v. Morris, S Kulp 488; Barlin v. Commonwealth, 99 Pa. 42; Barnhart v. Seanor, 8 Dist. 18; Commonwealth v. Harvey, 11 Kulp 139; Commonwealth v. Milnor, 23 Super. Ct. i. 183 Smythe v. Eyre, 149 Pa. 272; Wing v. Bradner, 162 Pa. 72; Phila & Reading R. v. Snowden, 166 Pa. 236; Prau v. MuUer, 3 Dist. 536. 184 Jones V. Gordon, 23 W. N. C. 3,02. i8s Second Nat. Bank v. Gardner, 171 Pa. 267. 186 Walker v. Geisse, 4 Wh. 252; Hill v. Gaw, 4 Pa. 493. 187 Sleeper v. Dougherty, 2 Wh. 177 ; McConeghy v. Kirk, 68 Pa. 200. 188 Hall V. Bank of the United States, 6 Wh. 585; Bank of the United States v. Thayer, 2 W. & S. 443. A premium note given to a mutual insurance company requires an affidavit. West Branch Ins. Co. V Smith, 3 Leg. Chron. 165. 33 ... 514 Common Law Practice in Pennsyi^vania. is not within the act.^'° A due bill, signed by an agent of the defendant, requires from him a denial of the fact of agency.^"" The word "bonds," by the explanatory act of 1842, is construed to embrace recognizances of bail in error,^°^ and bonds for stay of execution ; and the law is extended to bail bonds and insolvent bonds. It embraces a bond given for the release of a vessel from attachment ;^'= but not an interpleader bond;"' nor a replevin bond ;^'* or other bond with a collateral condition."^ A sheriff's recognizance is not within the statute.^^' 17. Instruments for paying money, (g) Under the term "other instruments of writing for the payment of money," is included a lease reserving a pecuniary rent;^^* a ground rent deed ;^'' a grant of the right to take clay out of the g I Vale 254, 283-359. 189 Patterson v. Poindexter, 6 W. & S. 227. An order drawn on the defendant's tenant, directing him to pay rent to a third person, is not within the act; it is an assignment of a particular fund, not a general promise to pay. Stephenson v. Acton, i W. N. C. 105. But a coupon, detached from the bond, is within the statute. Megargee v. Danville, Hazleton and Wilkes-Barre Railroad Co., 2 W. N. C. 535- 190 Hunter v. Reilly, 36 Pa. 509; Montour Iron Co. v. Coleman, 31 Pa. 80. 191 See Baker v. Olwyne, 2 Miles 404 ; Keyser v. Dialogue, 4 W. N. C. 11; Griffith V. Salter, 3 W. N. C. 433- See §25 for further consideration of this point. 192 Selser v. Dialogue, 4 W. N. C. 12. 193 Eldred v. Richardson, 7 W. N. C. 130. See Brenizer v. Cahill, 6 W. N. C. 147- 194 McFate v. Shalcross, i Phila. 40 ; Sands v. Fritz, 3 W. N. C. 531. 196 Smith V. Harley, i W. N. C. in; Koelle v. Engbert, 4 W. N. C. 202; Dauphin & Susquehanna Coal Co. v. Dasher, i Pears. 148. 197 Commonwealth v. Hoffman, 74 Pa. 105. The filing of an affidaivit is not a waiver of an objection to the sufficiency of the plaintiff's claim. MifHin v. Pennsylvania R. Co., 10 Lane. Bar 128. 198 Frank v. Maguire, 42 Pa. yy ; Dewey v. Dupuy, 2 W. & S. 553 ; McKeone Soap Mfg. Co. v. Religious Press Co., 115 Pa. 310, 313. And no declaration of statement need be filed with the copy. Ibid. But where a tenant holds over, after the expiration of his term, the lessor, in an action for rent, cannot, by filing a copy of the lease, entitle him- self to judgment for want of an affidavit; in such case, the lease is not the foundation of the action, but merely evidence of the amount of rent payable by the defendant, for the use and occupation of the premises. Petroleum Co. v. Logan, 6 W. N. C. S02. 199 Watkins V. Philips, 2 Wh. 209; Hansell v. Nelson, i Miles 340. Of Judgment by Default after Appearance. 515 plaintiff's land, for a certain period, at a fixed rate per ton f"" the contract of a surety for the payment of rent reserved by lease ;^" a submission and award ;^^^ a bank book in which a balance is struck ;^" and an absolute undertaking in writing to pay the debt of another, on a fixed day."' Formerly an executory agree- ment was not included by the affidavit of defense law.''^^ An affi- davit also is requisite, whenever the defendant has bound himself to pay a sum of money, on the performance of certain acts by the defendant, if, at the time of suit brought the time of payment have elapsed.-" Thus where the plaintiff filed a copy of an agreement, signed by the defendant, whereby he bound himself, in the event of certain securities not being sufficient to pay the plaintiff's claim in full, "to account for the balance in a way that should be mutual- ly satisfactory," and also a copy of an account indorsed thereon, showing a balance in favor of the plaintiff, with an averment that the same was made by the defendant, but which was not signed by him, it was held, that together they constituted a sufficient in- strument of writing for the payment of money, to require an affi- davit of defense to prevent judgment.^^' A contract in writing to pay a certain sum of money, is within the statute, though the option be given to pay in mortgages. ^^° 18. Scire facias, (h) An affidavit is necessary in a scire facias to revive a judg- h I Vale 339-350. But judgment cannot be taken against an alienee of the land, who has not signed the deed. Garrison v. Bunting, 2 W. N. C. 14. 200 Johnstown v. Cowan, 59 Pa. 275. 201 Schuylkill County v. Buckholtz, i Leg. Chron. 276. But not an award under a parol submission. Fox v. Philadelphia & Reading Rail- road Co., I Pears. 156. 213 Bayard v. Gillasspy, l Miles 256. 214 Harley v. Caldwell, 2 Miles 334. 215 Blackburn v. Boker, i Clark 15; Girard Life Ins. Co. v. Finley, i Phila. 70; Korn v. Hohl, 80 Pa. 333; Audibert v. Young, i W. N. C. 276; Heiskell v. Winpenny, i W. N. C. 146; Seltzer v. Greenwald, 2 W. N. C. 395; Sitgreaves v. Griffith, 2 W. N. C. 705; Howell v. Herold, 6 W. N. C. 431. 216 Mathews v. Sharp, 99 Pa. 560, 563; Vulcanite Paving Co. v. City of Phila., 115 Pa. 288. See §16. 217 Sutton V. Athletic Base-Ball Club, 4 W. N. C. 90. See Titus v. Bell, 4 W. N. C. 380; Rile v. Worl, i Phila. 45; Fertig v. Maley, 5 W. N. C. 133- 218 Hallowell v. Whiteman, Dist. Court, Phila., 4 Nov., 1848, 219 Caldwell v. Singerly, 34 L. I. 437- 5i6 Common Law Practice in Pennsylvania. ment.^^° Moreover a defense cannot be set up on a scire facias to revive a judgment which could have been made to the original judgment ;^^^ and when the court is in doubt the judgment will be refused.^^^ To a scire facias to revive a judgment the aver- ment is sufficient, that twenty years have elapsed since it was en- tered. The defendant is not bound to swear it was paid.-^* The administrator of the original defendant is not required to put in an affidavit of defense.^^* And an averment by a terre-tenant that the defendant never had title and that when the judgment was obtained the title was in another person under whom he claimed, is sufficient.^^^ An averment is insufficient which contra- dicts the record of the original judgment ;°^® and also an aver- ment describing mere formal irregularities,^^' but an averment that the defendant was a minor when the judgment obligation was entered is sufficient. ^^' With respect to a scire facias sur mortgage an averment is sufficient which denies the receipt of money on account of the mortgage and its delivery ;^^^ so is an averment of fraud in the assignment in an action by the assignee f^° so is an averment by a feme covert under conditions that have not been performed,^^^ so is an averment that the conveyance was absolute and not by way of a mortgage,'''^ so is an averment that a specific portion of the plaintiff's is for a gambling debt.''^^ On the other hand an averment is insufficient which denies the indebtedness but fails to deny the execution of the mortgage ;^^* so is an averment that the defendant received less than the full amount of the mortgage f^^ or that he signed the mortgage under 220 Moody V. McDermott, i Miles i8. 221 Supplee V. Holfmann, i6i Pa. 33. 222 Owens V. Molserd, i W. N. C. 431. 223 Wheelen v. Phillips, 140 Pa. 33. 224 Wright V. Cheyney, 10 Phila. 469. 225 Hill V. Taggart, s Kulp 279. 226 Swift V. Annent, 11 Kulp 240. 227 Watson V. Wehrly, 11 Lane. L. Rev. 49. 228 Smith V. Ruth, 7 York 189. 229 Morgan v. Morgan, 166 Pa. 450. 230 Twitchell v. McMurtrie, jy Pa. 383. 231 First Nat. Bank of Jamestown v. Scofield, 168 Pa. 407. 232 People's Street R. Co. v. Spencer, 156 Pa. 85. 233 Wolf V. Heineman, 50 P. L. J. 139. 234 May V. Meehan, 159 Pa. 419. 235 Bruner v. Wallace, 4 W. N. C. 53. Of Judgment by Default after Appearance. 517 a mistaken belief of facts which induced its execution ;=^® or that the mortgagor had no mortgageable interest in the land ;^" or that verbal instructions were given to the defendant concerning the time and manner of paying interest which contradicted the writ- ten instrument f^^ or an agreement to extend the time of payment of a mortgage overdue in the absence of a new consideration.^^' An averment is sufficient which clearly and precisely alleges noncompliance with the statute or ordinance under which an improvement was authorized.^*" The averment is sufficient that the work was done by an individual and not by the city.^*^ But under a rule of court an affidavit is not required where a penalty was demanded for nonpayment of a municipal claim.^*^ A scire facias sur municipal claim takes the place of a state- ment and the defendant must file an affidavit of defense thereto to prevent the taking of judgment against him.^*^ On the other hand the denial of facts conclusively proved by the passage of an ordinance in accordance with a statute is sufficient;^** so is an averment that the contract had been let to a contractor at a high- er price than a former contract let to the same contractor under an ordinance without showing the difference between the two contracts.^*^ ig. Mechanics' Lien. (i) A mechanics' lien is at issue when an affidavit of defense has been filed to the scire facias sur claim, and the defendant cannot object that he has not been ruled to plead and that no plea has been filed.^*" The affidavit must contain a distinct and positive i I Vale 341. 236 Stoddart v. Robinson, 54 Pa. 386. 237 Pennsylvania Co. v. Beaumont, 190 Pa. loi. 238 New York Mutual Sav. Association v. McLaughlin, 12 Luz. L. R. 255- 239 Mellon V. Simpson, 52 P. L. J. 322. See also Drope v. Barton, 52 P. L. J. 306. 240 Philadelphia v. Spring Garden Market, 154 Pa. 93; Scranton City V. Bush, 160 Pa. 499. 241 Chester v. Eyre, 167 Pa. 308. 242 Yates V. Meadville, 56 Pa. 21. 243 Oil Cit}' V. Hartwell, 164 Pa. 348. 244 Scranton v. Jermyn, 156 Pa. 107. 24s Tarentum Borough v. Moorhead, 26 Super. Ct. 273. 246 Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435 ; Amer- ican Lumber & Mfg. Co. v. O'Keefe, 20 Dist. 609; Vansciver v. Churchill, 35 Super. Ct. 212. 5i8 Common Law Practice in Pennsyi,vania. averment of material facts and not be argumentative and infer- ential;"*' and if the affidavit specifies departures from the speci- fications but fails to state the amount of the resultant damage it is insufficient.''** In a suit against husband and wife an affidavit that she did not contract for the work will carry the case to the jury."*^ And if the lien contains merely an allegation of new construction, an averment that the work was an alteration and not a new construction is sufficient."®" 20. Appeals from justices of the peace. (j) The lower courts have not been unanimous on the question, whether a judgment may be demanded for want of an affidavit of defense, applies to an appeal from a justice of the peace. Most of the courts maintain the negative,"®^ but in Philadelphia the rule of court provides that in all cases of appeal from judg- ments of magistrates, the pleadings and procedure shall be the same as in like cases commenced in the court of common pleas."'" "The party filing an appeal from the judgment of a magistrate shall within forty-eight hours thereafter notify the adverse party, or his attorney, of the court, term and number to which the ap- peal is filed.""'" By rule of court the above question has been settled in other counties. j I Vale 366; 2 Vale 5227. 247 Catanack v. Cassidy, 159 Pa. 414. 248 Thomas v. O'Donnell, 183 Pa. 145. See North End Lumber Co. V. O'Donnell, 191 Pa. 114. 249 Steinman v. Henderson, 94 Pa. 313. 250 Gerry v. Painter, 9 Super. Ct. 150. An averment of misnomer is insufficient when the real owner has full notice. Nason Mfg. Co. v. Jefferson Hospital, 4 W. N. C. 496. 251 Lentz V. Sylvester, 6 C. C. 580; Craig v. Tamaqua Knitting Co., ican Lumber & Mfg. Co. v. O'Keefe, 20 Dist. 609; Vansciver v. Churchill, 13 C. C. 444; Marshall v. Nieman, 6 C. C. 176; Am. Trade Exp. Co. v. Schroeder, 23 C. C. 660; Locher v. Sensenig, 9 Dist. 704; Moore v. Wash. Engine Co., S Montg. 190; Smith v. Mishler, 7 Lane. L. Rev. 169; Brown V. Brown, 16 Lane. L. Rev. 176; Eck v. Nace, 10 York 19; Stewartstown Bank v. Day, 13 York 187; Longenecker v. Council, 13 York 190; May V. Paterson, 15 York 92; Belfield v. Maudeville, 6 Kulp 23; Cordes v. Swartz, II Dist. 425. 252 Rule No. 74. Potts v. Benzenhafer, 6 Dist. 433, overruling Heroy v. Smith, 5 Dist. 293; Connolly v. Wilson, 6 C. C. 421. 253 Rule 5, §2. Op Judgment by Default after Appearance. 519 21. Judgments, (k) The record of a judgment of a court of another state, is an instrument requiring an affidavit of defense, whether the orig- inal cause of action were within the statute, or otherwise.^^* So, of a judgment against the plaintiff for costs f^'^ likewise of a duly certified record of a foreign judgment in an action for alleged j-Q^ 256 jjj j^j, action on such judgment, the insufficiency of the authentication of the record, will not prevent judgment ;^°'' the same strictness is not required, as when the record is offered in evidence on the trial f^^ nor will the supreme court, on error, no- tice an objection to the exemplification, which is not made below, by affidavit.^'^ As jurisdiction of the person in actions in personam and of the subject matter in proceedings in rem are essential to the validity and enforceability of a foreign judgment, an affidavit of defense is sufficient to prevent judgment which impeaches the jurisdiction of the court that rendered the judgment.^'"' But every presump- tion is in favor of jurisdiction and the record of a judgment is prima facie evidence thereof. Consequently the affidavit must negative by positive and specific averments and not by inference every possible fact from which the jurisdiction might arise. -"^ An affidavit therefore setting forth an irregularity in the exempli- fication of the record will not prevent judgment f^^ nor an aver- ment that the judgment was obtained by fraud,^^^ for example in k I Vale 259. 254 McCleary v. Faber, 6 Pa. 476; Hogg v. Charlton, 25 Pa. 200; Moore v. Fields, 42 Pa. 467; Luckenbach v. Anderson, 47 Pa. 123; Pal- mer V. March, 64 Fa. 239; Winner v. Carter, 16 L,. I. 20; Power v. Win- sor, 3 W. N. C. 360. The cases holding the contrary doctrine have been overruled. 255 Parker Mills v. Krause, i Pears. 531. 256 Billington v. Gautier Steel Co., 19 W. N. C. 339. 257 Packer v. Boyer, i W. N. C. 130; New York Sanitary & Chemi- cal Co. V. Hartman, 33 L. I. 264; Hartman v. New York Mfg. Co., S W. N. C. 502. 258 Winsor v. Warehouse Co., i W. N. C. 403. 259 Power V. Winsor, 3 W. N. C. 360. And see Wetherill v. Stillman, 6s Pa. 105. 260 Price V. Schaeffer, 161 Pa. 530. 261 Reber v. Wright, 68 Pa. 471 ; Mink v. Shafer, 124 Pa. 280. 262 Hartman v. New York Mfg. Co., 5 W. N. C. 502; Tunsdall v. Winton, 3 Lack. L,. N. 206; Packer v. Boyer, i W. N. C 130 263 Browning v. Lynch, i W. N. C. 5. 520 Common Law Practice in Pennsylvania. the service of the writ.^** Hence in an action on a foreign judg- ment wherein the plaintiff averred that the foreign court had jurisdiction, which the defendant in his affidavit of defense de- nied because he had not been legally served in the foreign juris- diction, the plaintiff sufficiently met the denial by offering the transcript of the foreign record showing actual service on the de- fendant.=»= Again, in an action on a foreign judgment in which the record shows an appearance for the defendant, an averment that he had no knowledge of it is evasive-^*" Nor is an averment good that the defendant's attorney withdrew his appearance after issue was joined, but before trial and judgment, for after jurisdiction has once been obtained by appearance it will be retained until the final disposition of the case.^^' An averment is sufficient which shows that in a foreign judgment involving the same cause of action, full faith and credit was not given to the judgment here.'«« 22. Loans. (1) The act of 1836 only extended to express contracts for the loan of money.'"" No affidavit was required where a man re- ceived the money of another without any direct authority.'" An affidavit of loan could only be filed, where there was no written evidence of the loan.'" And in such case an affidavit denying that any terms of repayment were agreed on, was suffi- cient to prevent judgment.'^' The act of 1887, however, covers this class of cases.''^ Thus in an action against a married woman for money loaned an affi- 1 I Vale 283. 264 Luckenback v. Anderson, 47 Pa. 123. See Hotter v. Welty, 12 C. C. 82. 26s Shilling V. Seigle, 207 Pa. 381. 266 Moore v. Phillips, 154 Pa. 204. 267 Wilson V. Hilliard, 17 W. N. C. 325. 268 Levison v. Blumenthal, 9 Kulp 392. 269 Sylva V. Bond, 2 Miles 421. And see De Castro v. Costas, i W. N. C. 156. 270 Peebles v. Kerr, i Pears. 69; Landis v. Kirk, i Pears. ^^. 271 Ohman v. Winsmore, 3 W. N. C. 157; Raible v. Schall, S W. N. C. 149. 272 George v. I,ewis, Dist. Court, Phila., 10 March, 1849. 273 Knight V. Somerton Hills Cemetery, 205 Pa. 552. Of Judgment by Default after Appearance. 521 davit of defense is sufficient which alleges that the defendant never borrowed the money from the plaintiff ;"* or more gener- ally if the affidavit denies the loan it is sufficient to prevent judg- ment.''^'* The affidavit must state clearly the date, amount and terms of the loan.^'* 23. Book entries. (m) Book-entries, to call for an affidavit of defense, must be copies of an original book, which would be competent evidence to a jury of the plaintiff's claim ;^'^ that is, of work and labor done, or goods sold and delivered. Brokers' commissions are not the subject of a book entry ;^'* nor are "legal services ;"^'^ nor the services of a conveyancer;^*" nor the labor of an au- thor j^*'^ nor a claim for wharf age.^*^ A book entry is not evi- dence of a payment of money f^^ nor is a charge of "cash" f^* nor a charge of board and cash ; or for refreshments furnished to a seaman.^*^ It is no objection, however, to a book of original entries, that it was kept in ledger form;^*® nor that the charges were made at the end of each week, under a continuous employ- ment.^*'' The paper filed must purport, on its face, to be a copy m I Vale 242. 274 Hutton V. McLaughlin, i Super. Ct. 642. 27s Raible v. Schall, s W. N. C. 149. 276 Landis v. Kirk, i Pears. 77. 277 Wall V. Dovey, 60 Pa. 212; Hamill v. O'Donnell, 2 Miles loi ; Harbison v. Hawkins, 6 Leg. Gaz. 157; Jackson v. Garrigues, I W. N. C. 403; Middleton v. Morris, i W. N. C. 432. See Bill Posting Co. v. Jermon, 27 Super. Ct. 171. 278 Greall v. Noll, i W. N. C. 26; McStay v. Dugan, 2 W. N. C. 226. See Peiper v. Hershman, i W. N. C. 103 279 Atwood V. Caverly, i W. N. C. 82; Rogers v. Scullins, 2 W. N. C. 535; Meany v. Kleine, 3 W. N. C. 474. 280 Thorne v. Noel, 5 W. N. C. 566. 281 Hirst V. Clarke, I Clark 398. 282 Lennig v. Quaker City Steamboat Co., 3 W. N. C. 434. And see Wilmer v. Israel, i Bro. 257. 283 Saam v. Saam, 4 W. 432. 284 Hoe V. Seitz, i W. N. C. 429; Fisher v. Binswanger, 2 W. N. C. 97- 28s Gibbons' Estate, I Leg. Gaz. R. 10. 286 Hoover v. Gehr, 62 Pa. 136. 287 Keys V. Ervin, 4 W. N. C. 382. But see Ferris v. Philadelphia Champion Brick-Machine Co., i W. N. C. 441 ; Gardiner v. Dodd, i W. N. C. 146. A lumping charge is not sufficient. White v. Wright, I W. N. C. 283; Longest v. Sobey, i W. N. C. 402. 522 Common Law Practice in Pennsylvania. of "book entries";^*' it need not, however, show that the goods charged were sold on a credit.^'^ If part of the book account is barred by the statute of limitations, the defense must be set up by aifidavit.^'" An entry, charging goods furnished "according to contract," will not support a motion for judgment ;^''^ nor an entry charging goods to be delivered at a future day.^°^ Where the charge is against one, and the process is served on another, as agent, there can be no judgment against the latter, under the statute.^®^ So, a charge against a vessel and owner, is not suffi- cient to authorize a judgment against owners not named. ^'* A day book, shop book, or any book of original entry, should contain the name of the buyer, the dates of the delivery of the goods, and the prices for which they were sold. A copy of these entries, accompanied by an averment that they were taken from the books of original entry, and constitute the demand of the plaintiff, upon which suit is brought, is enough to put the defend- ant upon his affidavit of defense. The use of the terms debtor and creditor is not essential; anything that shows an intent to charge the defendant is sufficient.^^" An entry in which the de- fendants were charged with articles (parasols) described only by trade numbers and size, but which did not state that they were parasols, was held sufficient to entitle the plaintiff to judgment, on the theory that it could be readily understood by persons in the trade in which both the parties were engaged.^'^ The dates, 288 Berrell v. Burgin, Dist. Court, Phila., March, 1848. MS. See Hunt V. Clark, i W. N. C. 28; Becker v. Louchheim, i W. N. C. 429; Williams v. Davis, 2 W. N. C. 97. 289 Morgan v. Rhoads, Dist. Court, Phila., July, 1848. MS. See Louchheim v. Becker 3 W. N. C. 449. 290 Wilson V. Hayes 18 Pa. 354. 291 Atkinson v. Carson, i W. N. C. no. See Bickell v Wood I W N. C. 282. 292 Rheem v. Snodgrass, 2 Grant 379. 293 Herron v. Miner, 4 W. N. C. 226. 294 Julius V. Comly, i W. N. C. 9S; Powel v. Laughlin, 2 W. N. C. 446. 29s Orth V. Saylor, 2 W. N. C. 349; Charles v. Gillespie, i W. N. C. 115. See Moore v. Humphreys, i W. N. C. 157; Kahn v. Marquis, i W. N. C. 221; Carr v. Mount] oy, i W. N. C. 360; Cooper v. Ranakin, 2 W. N. C. 428. 296 Barraos v. Brandeis, i W. N. C. 7 ; Miller v. Brandeis, I W. N. C. 62. See Middleton v. Morris, i W. N. C. 432 ; Graff v. Crissman, 2 W. N. C. 66; Uhler v. Kohler, 2 W. N. C. 67. If the abbreviations used, be Op Judgment by Defaui^t after Appearance. 523 however, are a material part of the book entry.^" A copy of a book entry is not vitiated by having a bill heading ; that is mere surplusage f^^ and it is not essential, that the copy filed be signed by counsel.^'^ Numerous actions have been founded on accounts stated and book entries. The question that has most frequently arisen is what is a sufficient copy of book entries to call for an affidavit of defense.^"" The copy must give to the defendant some informa- tion of the charges.^"^ It must be a copy of the original book, which would be competent evidence to a jury of the plaintiff's claim. ^°^ A vendue paper is not an account on a copy of which judgment may be taken under the affidavit of defense law;^°^ nor the services of a conveyancer,^"* or notary public,^"' or broker,""* or lumping charges by a physician,""^ or advertiser,^"' nor is a bank ledger.^"' Again, a bank account which on its face does not purport to be a copy of any book whatever may be sustained by an accom- panying affidavit describing its nature and purport. ^^° And a rule on the plaintiff to produce his book of original entries for in- spection must be based on an affidavit of belief in the incorrect- ness of the copy filed."^^ And if the abbreviations used in a book unintelligible to the defendant, he must so aver in his affidavit; a general allegation of the insufficiency of the copy filed, is not enough. Brown v. Dupuy, 4 W. N. C. 491- 297 Rich V. McLane, i W. N. C. 469. 298 Richardson v. Snyder, 6 W. N. C. 414, 3 W. N. C. 272; Greenfield V. Gill,' 2 W. N. C. 184. 299 Logan V. Quigley, 2 W. N. C. 380. 300 Bill Posting Sign Co. v. Jermon, 27 Super. Ct. 171. 301 Bill Posting Sign Co. v. Jermon, 27 Super. Ct. 171; the H. O. Company v. Powell, 9 Del. 412. 302 Wall V. Dovey, 60 Pa. 212; Hamill v. O'Donnell, 2 Miles loi ; Harbison v. Hawkins, 6 Leg. Gaz. 157; Gallagher v. Slack, 4 Kulp 269. 303 Weidner v. Kreider, i Wood. 321. 304 Thorne v. Noel, s W. N. C. 566; Kopple v. Wiber, 10 W. N. C. 435- 305 Harbison v. Hawkins, Siyi Pa. 142. 306 Sylvester v. Thompson, 11 W. N. C. 203. 307 Hadley v. Fitler, 12 W. N. C. 461. 308 Ayer v. Sterneck, 43 L. I. 162. 309 Bank v. Baker, 14 W. N. C. 176. 310 Langon v. Bayler, 3 York 149. 311 Burton v. McCuUy, 9 W. N. C. 206. 524 Common Law Practice in Pennsyi,vania. of entry are not understood by the defendant this must be averred; a general averment of an imperfect copy will not suffice,^^^ but charges made in the customary manner are suffi- cient though not understood by the defendant.^^^ 24. Contract of suretyship, (n) A judgment may be taken for want of an affidavit of defense on a written contract of suretyship.^^* And an affidavit which denies the happening of the breach, which is the subject of the suit, is sufficient in an action against a surety on a bond.^^° Like- wise an averment denying presentment and refusal to pay as charged, is a sufficient defense in an action against a guarantor.^^" And in an action against a surety in a lease, an averment of a parol surrender of the term is sufficient.^^' In an action on a bond of suretyship which provides that in the event of default written notice shall be given to the surety within twenty days, an averment is sufficient which admits the default but avers that notice was not given to the surety within twenty days.^^' An averment is insufficient that the creditor has failed to ex- haust his remedy against the principal ;^^^ also that the plaintiff accepted an amount which he collected from the sureties in full for his claim ;^^" likewise an averment that the liability of the guarantors was joint and that the action should have been brought against all, and not against one of them f^^ likewise an averment by a surety on a lease that it was subsequently altered by an agreement without consideration between leasor and lessee.^^^ n I Vale 356, 359. 312 Brown v. Dupuy, 4 W. N. C. 491. See Wood v. Ward, 7 W. N. C 280. 313 Atkinson v. Harper, 14 W. N. C. 359. 314 Goodman v. Baker, 44 L. I. 264; Heister v. Schwenck, i Wood. 287. 315 Township of Hazle v. Markle, 175 Pa. 405; Wolf v. Fortney, 10 York 149. 316 Zeigler v. McFarland, 2 Pears. 234. 317 Auer V. Penn., 92 Pa. 444, revg. 6 W. N. C. 447. , 318 Union Surety Co. v. Stevenson, 27 Super. Ct. 324. 319 Girard Life Ins. Co. v. Finley, I Phila. 70. 32a Dejonge v. Helmbold, 10 W. N. C. 102. 321 Zeigler v. McFarland, 2 Pears. 234. 322 Flanigan v. Rositer, 7 W. N. C. 180. Of JxnxiMENT BY Default after Appearance. 525 In an action against a surety on a bond or recognizance, an averment is insufficient which avers matters of defense in the original suit.^^^ Under rule of court an affidavit is required in an action of debt on a forfeited recognizance,^^* and on a recognizance taken in the orphans' court,^^® also in an action and recognizance of bail in error,'^^ and on the bond of a defaulting public officer,^" on the recognizance of bail on appeal from the judgment of a justice,^^^ also a perfected recognizance;''^'' on a bond given for the release of a vessel from attachment ;^^'' also on a guardian's bond is within court rule;'^^ also a claimant's interpleader bond, but the statement should contain an averment of the value of the goods.^'^ Formerly an affidavit was not required in an action on a bond with a collateral condition under rule of court ;^^^ nor on a sher- iff's recognizance ;^'* nor on a bond with a collateral condition f^^ nor on a replevin bond f^^ nor on a recognizance of special bail f^'' nor on recognizance for bail in error; nor on the bond of a de- 323 Cox V. Hartranft, 154 Pa. 457; AUesio v. Blesh, 148 Pa. 365; Bethoven B. & L. Association v. Hoersch, 18 Phila. 259. 324 Commonwealth v. Boult, i P. S. Bro. 237; Harris v. Common- wealth, 35 Pa. 416. 325 Slocum V. Slocum, 8 W. 367. 326 Baker v. Olwyne, 2 Miles 404; Bank v. Cowperthwaite, i Wilcox 273; Beck V. Courtney, 13 W. N. C. 302; Keyser v. Dialogue, 4 W. N. C II. 327 Commonwealth v. Covert, i Pears. 163. 328 Knecht v. Mortimore, I Leg. Rec. 159; Hackett v. Carnell, 106 Pa. 291. 329 Taylor v. Commonwealth, 36 L. I. 31S; Commonwealth v. H^rt, 5 Dist. 109. 330 Kase V. Greenough, 88 Pa. 403. 331 Commonwealth v. Gracey, 96 Pa. 70. But see Commonwealth v. Meyerhaven, 12 W. N. C. 548. 332 Byrne v. Hayden, 23 W. N. C. 306. 333 Boas v. Nagle, 3 S. & R. 250. 334 Commonwealth v. Hoflfman, 74 Pa. 105. See also Borlin v. Com- monwealth, 99 Pa. 42. 335 Smith v. Harley, I W. N. C. iii; Koelle v. Engbert, 4 W. N. C 202. 336 McFate v. Shallcoss, i Phila. 40. 337 Stokes V. Sayre, i Miles 25; Comonwealth v. Steelman, 2 Miles 405. 526 Common Law Practice in Pennsyi,vania. faulting public officer f^^ nor on a tax collector's bond f^' nor on a bond for the faithful performance of the duties of a corpora- tion officer f *" nor on an official bond given by the treasurer of an association and his sureties for the faithful discharge of his du- ties ;^^^ nor on a bond given in the orphans' court as surety for a life tenant on receipt of the proceeds of real estate ;^*^ nor on an administrator's bond;^*^ nor the bond of a lunatic's commit- tee;^" nor a refunding bond given to secure an executor;'*' nor a sheriff's interpleader bond f*^ nor a bond of indemnity f" nor an injunction indemnity bond f*^ nor a forfeited recognizance ;'*° nor a recognizance given under an order of court for the support of the cognizer's wife and family;^'" nor a bond to secure the payment of costs ;''^ nor a claim-property bond.'°^ Notwithstanding the act of 1887 an affidavit of defense is not required in an action of assumpsit when the nature of the debt sought to be recovered is a penalty, for the double reason that the proceeding is substantially an action ex delicto and that, being an action to recover penalties, the defendant cannot be required to furnish evidence against himself.^'' Consequently an affidavit is not required to an action brought on a sheriff's recognizance for the escape of a prisoner ;^=* nor on a sheriff's official bond ;''= per- 338 Commonwealth v. Coovert i Pears. 163. 339 School District v. Slinglufif, 2 Montg. 86. 340 Dauphin & Susquehanna Coal Co. v. Dresher, i Pears. 148. 341 Lodge V. Ward, i Wood. 39. 342 Commonwealth v. Maguire, 12 W. N. C. 304. 343 Commonwealth v. Kessler, 17 W. N. C. 176. 344 Strock V. Commonwealth, 90 Pa. 272. 345 Linderman v. Linderman, i Wood. 56. 346 Eldred v. Richardson, 7 W. N. C. 130. 347 Scott V. Loughrey, 6 W. N. C. 123; Gercke v. Montgomery, 6 W. N. C. 238. 348 Calhoun v. Monongahela B. & L. Association, 104 Pa. 393. 349 Commonwealth v. Becker, i Wood. 297. 350 Huber v. Commonwealth, 11 W. N. C. 496; Commonwealth v. Fellman, 17 Dist. 1060; Bowen v. Wilke, 15 I,anc. 1,. Rev. 53. 351 Kase V. Greenough, 88 Pa. 403. 352 Elliott V. Kunszig, 9 W. N. C. 542. 353 Osborn v. First Nat. Bank of Athens, 154 Pa. 134. 354 Commonwealth v. Miles, 16 Dist. 161. See elaborate opinion by Barratt, J.; Cordes v. Swartz, 11 Dist. 425. 355 Commonwealth v. Milnor, 23 Super. Ct. i; Barnhart v. Seanor, 8 Dist. 18, Of Judgment by Default after Appearance. 527 haps not on a collector's bond.''^' The distinction that has been drawn in this long series of bond cases between those which are of a contractual or penal nature, has not been easily observed, and might be remedied by a rule of court broad enough to include all within the affidavit of defense law.^^' To entitle the plaintiff to judgment on a bond for want of an affidavit of defense a copy of the bond must be filed; it is not sufficient to recite its terms ;^^* but in an action on a recognizance for stay of execution it is not needful to file a copy of the whole record.^'® In an action on a bond over twenty years old the plaintiff cannot get judgment for want of an affidavit unless the presumption of payment is rebutted."'" 25. Stock assessments, (o) There have been many cases to recover various kinds of stock assessments. It is difficult, however, to extract any principle from them concerning the nature of the affidavit of defense re- quired to prevent judgment. These assessments have been most frequently made by insurance companies,""^ railroads,""^ manu- facturing,^"" banking,""* and land companies.""^ In cases of fraud o I Vale 248. 356 School District of Norristown v. SlinglufF, 2 Montg. 86. 357 Of course no affidavit can be required in a penal action. Com. Nat. Bank v. Kirk, 222 Pa. 567. 358 School District of Norristown v. Slingluff, 2 Montg. 86; Griffith v. Contra,— Allen v. Gatley, 2 W. N. C. 98. 359 Jones v. Raiguel, 97 Pa. 437- 360 Lash V. Von Neida, 109 Pa. 207. 361 Peoples' Mutual Fire Ins. Co v. Groff, 154 Pa. aoo; Snader v. Hurst, IS Lane. L. Rev. 33; Dettra v. Simon, 5 Dist. 342; Stone v. Lorentz, 19 C. C. 51 ; Fidelity Mutual Fire Ins. Co. v. Hancock, 9 Super. Ct. 480; Bready v. Farmers' Mutual Fire Ins. Co., 15 Montg. 43; Stockley V. Cook & Fair, 47 P. L. J. loi ; Susquehanna Mutual Fire Ins. Co. v. Sprenkle, 13 York 121 ; Stockley v. Riebenack, 12 Super. Ct. 169 ; More V Shafer, 18 Super. Ct. 122; Schofield v. Hayes, 17 Super. Ct. no. 362 Delaware River R. v. Weaver, 7 Lane. L. Rev. 363; Chartiers R. Co. V. Hodgens, 77 Pa. 187. 363 Spellier Electric Time Co. v. Geiger, 147 Pa. 399; Bristol Iron & Steel Co. V. Selliez, 175 Pa. 18; York Flour Mill Co. v.. Gallatin, 10 York 183; Light, Heat & Power Co. v. Smith, 10 Super. Ct. 61; Sparks v. Industrial Brick Co., 12 Super. Ct. 404; Sparks v. Flaccus Glass Co.. 16 Super. Ct. 119; Wagner v. Frick, 15 York 6; Simpson v. Heise, 18 Lane. L. Rev. 358; Galena Co, v, Frazier, 10 Super. Ct. 394; Arnold Co. V. Chew, 21 Super. Ct. 407. 528 Common Law Practice in- Pennsyi^vania. the affidavit must state with precision the facts showing there was fraud or gross mistake in the assessment.^" 26. Promissory notes, (p) Actions on promissory notes have been very numerous. Prior to the act of May 25, 1887, a premium note given to a mutual in- surance company required an affidavit of defense.'" An aver- ment by the maker of a note setting up a want of authority of an agent to sign the defendant's name must state specifically his au- thority.'** And when the principal is sued as an endorser an averment by him that the indorsement was made by an unauthor- ized agent is insufficient if the receipt of the consideration is ad- mitted.'*^ And if a note is signed by the defendant as presi- dent an averment that he was not the maker, but that it was done for a corporation is sufficient."" Under the act of May 15, 1901, where a corporation note is indorsed by the president as "A. B., Pres't." an averment that the payee accepted the note knowing that the indorsement was not intended to bind him individually is sufficient.''^ And in a suit against a corporation on a note signed by its trustees, an averment is not sufficient which states that the note appears on its face to be the individual note of the makers and that the corporation cannot be held thereon.''^ With respect to the consideration as between the immediate parties a mere averment of want of it without setting forth the facts is insufficient;''' but if these are fully set forth the affi- p I Vale 295. 364 Guarantee & Collection Co. v. Mayer, 141 Pa. 511. 365 Columbus Land Co. v. McNally, 172 Pa. 138; Keating Land Co. V. Wettingill, 47 P. L. J. 78; Quaker City Apartment House v. Matthews, 21 Super. Ct. S19; Apartment House Co. v. Kirk, 10 Dist. 292. 366 Fidelity Mutual Fire Ins. Co. v. Hancock, g Super. Ct. 480; Acetylene Co. v. Beck, 6 Super. Ct. 584. 367 West Branch Ins. Co. v. Smith, 2 Leg. Chron. 165. 368 Canfield v. Ditman, 16 Ct. 739. 369 MacGeorge v. Harrison Chemical Mfg. Co., 141 Pa. 575. 370 Avil V. Bush, 19 W. N. C. 448. 371 Birmingham Iron Foundry v. Regnery, 10 North. 285. 372 Wanner v. Emanuel Church, 174 Pa. 466. 373 Hunt V. Muffly, i W. N. C. 389. See Bristol Iron Co. v. Selliez, 17s Pa. 18; Root V. Fox, 6 York 122. Ot Judgment by Dei^ault after Appearance. 529 davit is sufficient."* An averment that the consideration is wrorthless is insufficient."^ As between prior parties, an averment is sufficient which sets up a failure of consideration between the original parties, and avers that the defendant is informed, believes and expects to be able to prove that the plaintiff is not a bona fide holder, but that the notes were transferred to him to avoid such defense and that the plaintiff became the holder with full knowledge of the failure of consideration.^" The facts impeaching the holding must be set forth, a general averment of "reason to believe" is insufficient.^" With respect to accommodation paper, an averment by the maker of want of consideration for the note in the possession of a third person as collateral security for an antecedent debt is insufficient;^'* so is an averment of want of consideration to the accommodating party which fails to deny that the plaintiff is a bona fide holder in due course."® So is an averment which sets forth as against a subsequent holder that the accommodated party has paid no consideration and also facts showing that the plaintiff is not a bona fide holder in due course. ^^^ So is an aver- ment denying that the plaintiff is a holder for value before ma- turity and without notice that the defendant maker was an accom- modation maker and had received no consideration therefor, and that the debt is one of the payee's or plaintiff's.^'* 374 Kircher v. Sprenger, 12 Lane. L. Rev. 78; Kavanaugh v. WoU. 3 W. N. C. 242; Donaldson v. Woodward, 8 Qt. 192. 375 Bowen v. Kemerer, 11 Phila. 557; Coil v. College, 40 Pa. 439. See Donnelly v. Girderman, i W. N. C. 146. 376 Newbold v. Bernard, 15 C. C. 118. See also Penn. Nat. Bank v. Altoona Mfg. Co., 15 C. C. 320; Flood v. Park, 2 W. N. C. 569; Fore- paug V. Baker, 21 W. N. C. 299. 377 Newbold v. Pennock, 154 Pa. 591 ; First Nat. Bank v. Sollenberger, 2 Del. 57; Superior Nat. Bank v. Stadelman, 153 Pa. 634; Brown v. Street, 6 W. & S. 221; Gaskill v. Lynch, 4 W. N. C. 542; Walker v. Geisse, 4 Wh. 252. 378 Carpenter v. National Bank of the Republic, 106 Pa. 170; Lord v. Ocean Bank, 20 Pa. 384 ; Twing v. Hunt, 7 W. N. C. 223. 379 Historical Pub. Co. v. Hartranft, 3 Super. Ct. 59; HoUoway v. Quinn, 18 W. N. C. 284. 380 Chestnut Street Nat. Bank v. Ellis, 161 Pa. 241; Schwaszkopf v. Hill, 2 Qt. 799- 381 Clothing V. Webster Foundry Sand Co., 21 Super. Ct, 386. See Peale v. Addicks, 174 Pa. 549. 34 S30 Common Law Practice in Pennsylvania. In an affidavit denying the indorsement on a note to the best of the affiant's knowledge and belief, such an averment is clearly evasive, he should demand an inspection.*^'' So is an averment not denying the indorsement, but simply denying the transaction of any business with the plaintiff.^*^ So is an averment setting up the irregularity of the indorsement in an action by the payee against an indorser.'** So is an averment by a partner that the indorsement on a partnership note was made by the other partner without any authority.'^^ In an action against an indorser the plaintiff need not aver presentment and notice, the defendant must deny them in his affidavit; it is not enough to deny the re- ceipt of the notice, he must state facts which will justify the in- ference that due diligence was not used.*** In averring notice lack of diligence in giving notice of protest to an indorser is sufficient.**' An averment by an indorser that he never received any notice of protest, nor did any arrive at his house or place of business to the best of his knowledge and be- lief is sufficient.*** The simple averment that no notice of pro- test was received is not sufficient.**' The averment to be suffi- cient must state such facts as will justify the inference that no notice of protest had been given, nor due diligence used.*"" An absolute denial of notice of nonpayment responsive to the allegation of notice in the statement is sufficient;*'^ likewise an averment of nonpayment is sufficient to prevent judgment;*'^ and an averment "that no notice of the nonpayment of the note sued 382 Allen V. National Bank of Germantown, 10 W. N. C. 188. 383 Scranton Sav. Bank v. Groff, I Wilcox 112; Gill v. CuUen, 8 W. N. C. s8. 384 Pentland v. McClelland, i Pitts. 164. See also Traders' Nat. Bank v. Geist, 11 Lane. L. Rev. 4. 385 Kensington Nat. Bank v. Ware, 32 Super. Ct. 247. 386 McConeghy v Kirk., 68 Pa. 200. See also First Nat. Bank of Mahanoy City v. Dick, 22 Super. Ct. 445. 387 Felemeyer v. Ebert, 16 W. N. C. 254. 388 Felemeyer v. Ebert, 16 W. N. C. 254. 389 McConeghy v. Kirk, 68 Pa. 200. 390 Historical Pub. Co. v. Hartranft, 3 Super. Ct. 59; Moore v. Somerset, 6 W. & S. 262 ; Stemple v, Herman, 25 P. L. J. IS ; Hantsch V. Levan, i Wood. 456; Brancher v. Beltz, 2 Leg. Rec. 394. 391 McPherson v. Allegheny Nat. Bank, 96 Pa. 135. 392 Benedict v. Gunnis, 15 W. N. C. 158. Of Judgment by Defaui^t after Appearance. 531 on was in fact given to or received by the indorser defendant" raises an issue of fact for submission to the jury.'^^ An affidavit which avers the breach of a contemporaneous agreement on the faith of which the note in controversy was given, is sufficient as between the immediate parties to the agree- ment;^^* but an averment which sets up a collateral agreement that contradicts the terms of the note is insufficient.^'^ An affi- davit setting forth an agreement to accept the return of goods must show that their price was included in the note;^°® and an affidavit which fails to set forth all the essential terms of the con- temporaneous inducing agreement is insufficient ;'°^ likewise an affidavit in which the agreement set up is merely collateral to the consideration for the note and is not supported by a new consid- eration.^'* When the affidavit by the maker sets up, as against the payee's indorsee, an agreement between the maker and payee whereby the payee should hold the note as security for a special purpose, other than for accommodation, it is sufficient if the indorsee took the note as security for an antecedent debt.''' On a rule for judgment for want of a sufficient affidavit of de- fense if not denied in the affidavit that the plaintiff is a bona fide holder for value, that fact will be regarded as admitted.*"" Like- wise a defendant who avers that he holds notes of the plaintiff will be presumed to be a bona fide holder.'"'^ But an averment by the maker — defendant that he is informed, believes and expects to be able to prove that the plaintiff is not a bona fide purchaser for value before maturity, and that he now holds the note for collection in the interest of the payee is sufficient.*'^ Again, an averment that the plaintiff is not a bona fide holder for value, but obtained the note, the payee of which was the maker's wife, after maturity and sues it in his name for the purpose of evading 393 Deacon v. Smaltz, lo Super. Ct. 151. 394 Kennett Square Nat. Bank v. Shaw, 209 Pa. 313, Dig. 307. 395 Garsed v. Rutter, 8 At. 170; Franklin Trust Co. v. Buck Run Coal Co., 14 Dist. 756. 396 Reading Stone Works v. Battin, i Lack. Jur. 428. 397 Sickel V. Dillon, 10 W. N. C. 337. 398 Rice V. Morris, 4 Wh. 249; Maule v. Carey, i W. N. C. 50. 399 Carpenter v. Nat. Bank of the Republic, 106 Pa. 170. 400 Chatham Nat Bank v. Boardman, 13 Lane. L. Rev. 321. 401 Osmer v. Souder, 3 W. N. C. 155. 402 Louchheim v. Maguire, 186 Pa. 311; Bacon v. Scott, 154 Pa. 250. 532 Common Law Practice in Pennsylvania. the prohibition of the act of June 8, 1893/°' against the bringing of a suit by a wife against her husband, with the further aver- ment that the defendant had not deserted her, is sufficient.*"* An affidavit which clearly avers fraud is sufficient in an ac- tion between the immediate parties.*"' The particular circum- stances constituting the fraud need not be set forth, if the char- acter and nature of the fraud are sufficiently averred.*"^ And an averment by a maker against a subsequent holder of fraud in procuring or issuing a promissory note and that the plaintiff is not a bona fide holder for value is sufficient.*"^ So is an averment by an accommodation indorser that the subsequent holder is not a bona fide holder for value and that the note in suit was fraudu- lently issued.*"* The specified facts constituting fraud in the issue of the note must be set forth ;*"' an averment that the plain- tiff took the note under suspicious circumstances is not suffi- cient.*^" And when fraud is alleged subsequent to the issue of a promissory note and the affidavit impeaches the good faith of the subsequent holder it is sufficient ;*^^ but the mere allegation of fraud subsequent to the issue of the note is insufficient in the ab- sence of an averment of bad faith on the part of the subsequent holder who is the plaintiff.*^^ An averment of forgery in an affidavit in the execution of the note is sufficient ;*^' but an aver- ment of an immaterial alteration is insufficient.*^* 403 P. L. 345, 3 Purd. §69, p. 2461. Graphic Co. v. Marcy, 4 W. N. C. 239; Eyre v. Yohe, 67 Pa. 477; Union Trust Co. v. Banger, 8 C. C. 99- See also Hayes v. Kingston, i Mona. 151 ; First Nat. Bank of AUentown v. Eichelberger, i Wood. 397. But see contra,— Newbold v. Pennock, 154 Pa. 591; First Nat. Bank of Hagerstown v. Sollenberger, 2 Del. 57. 404 Haun V. Trainer, 190 Pa. i. 405 Weixel v. Lennox, 179 Pa. 457. 406 Youngman v. Walter, Tz Pa. 134. 407 Lerch Hardware Co. v. First Nat. Bank of Columbia, 109 Pa. 240; Reamer v. Bell, 79 Pa. 292. 408 Smith V. Popular L. & B. Association, 93 Pa. 19. 409 Bank v. Falkner, 2 W. N. C. 49; Coon v. Moore, 2 C. C. 246. 410 Second Nat. Bank of Clarion v. Morgan, 165 Pa. 199. See Boomer v. Henry, 13 C. C. 104. 411 Royer v. Keystone Nat. Bank, 83 Pa. 248; Hoffman v. Foster, 43 Pa. 137. 412 Garden City Nat. Bank v. Fitler, ISS Pa. 210. 413 Fischer v. Gilch, 13 W. N. C. 46; Houston v. Allen, 3 W. N. C. 134; Kemp V. Bernhart, i Wood. 152. 414 Brown v. Lawrence, I W. N. C. 600. Of Judgment by Default after Appearance. 533 An averment of usury must be specified ; and in suit on a note made in another state bearing a higher rate of interest than is allowed by our law, an averment that it was legal by the lex loci contractus must be denied by the affidavit.*^° Mere payments of interest in advance or deductions in the way of discount are not usurious ;"° and an averment that the plaintiff was informed and knew at the time of purchasing a note that it was given in a gam- bling transaction is a good defense to an action by the indorsee against the maker ;*^^ but an averment is insufficient which avers that the note in controversy was given for money borrowed to pay a wagering debt/^^ and an averment that the note was given in payment of a sum unfairly won at cards lacks definite- ness.*^* An averment is sufficient that the note in controversy was given for an illegal consideration;*^" but the facts must be clear- ly set forth.*^' So is an averment that the note in controversy was given for adulterated liquors. *^^ Again an averment that the note in controversy does not contain the words required by statute "given for a patent right" is sufficient as between the original parties, even though the averment is not added that the note was executed in Pennsylvania.*^^ An averment is insufficient which sets forth that two writs were issued on the same day against the defendant on separate promissory notes when it appears that one of the writs was an alias, and that the original writ was issued before the note on which the other writ was issued was due.*^* Likewise an aver- ment is insufficient that a former suit against the defendant maker on the same note had been discontinued.*^' An averment that the suit is brought in the name of one who is not the real holder in order to shut out a set off is sufficient.*^® 415 Smith V. Huster, 11 W. N. C. 353. 416 Eckstein v. Harland, 4 W. N. C. 150. 417 City Sav. Fund v. Detweiler, 19 Lane. L. Rev. 302. 418 Folwell V. Stuart, 4 C. C. 80. 419 Crowell V. McCready, 15 W. N. C. 531. 420 Donoldson v. Woodward, 8 At. 192; Watson v. Supplee, 15 W. N. C. 91. 421 O'Hare v. Bank of Titusville, 77 Pa. 96. 422 Raid V. Dearie, 2 Kulp 20. 423 Bowen v. Kemerer, 11 Phila. 557. 424 Smith V. Hopple, 3 W. N. C. 44- 425 Brenker v. King, 2 W. N. C. 321. 426 Eyre v. Yohe, 67 Pa. 477- 534 Common Law Practice in Pennsylvania. a-j. What instruments do not require affidavit, (q) An instrument not signed by the defendant does not require an affidavit ;*" as an acknowledgment of indebtedness, signed by an attorney at law.*^* In a suit on an executory contract, an affi- davit of defense is not required;*^® nor is a receipt for city loan;*'" nor a due bill for specific articles, at a stated price.*^^ An agreement to pay a sum of money, on a condition to be per- formed by the plaintiff, is not one calling for an affidavit of de- fence; nor will an averment of performance entitle him to judg- ment.*"^ An agreement to "settle" an unascertained amount of interest due on a mortgage, is not within the statute;*'" nor a contract to pay a sum of money, for certain stoqk, to be deliv- ered at a future day.*"* In a suit against a depositor in a bank, for an accidental overdraft, an affidavit is not required.*"^ A let- ter to the plaintiff's counsel, acknowledging the indebtedness, and offering terms of compromise will not entitle him to judgment.*"® Nor will an agreement to accept drafts to be drawn by a third person, entitle the holder to call for an affidavit of defense.*"' An affidavit of defense is not required to a statement of claim for unliquidated damages for the breach of a written contract of employment,*"* or for a breach of promise of marriage.*"' q I Vale 159. 427 Elkington v. Farmers' Bone Co., i W. N. C. 636; Sayers v. Pat- terson, 2 W. N. C. 334. 428 Bradford v. Bradford, i Clark 209. And see Morris v. Guier, S W. N. C. 132. 429 McNarr v. Winpenny, i W. N. C. 29; Hutchinson v. Weir, i W. N. C. 267; Karthans v. State Mutual Fire Ins. Co., i Pears. 104; Miller V. State Mutual Ins. Co., i Pears. 106. 430 Craig V. Rushton, i W. N. C. 82. 431 Gould V. Richardson, 33 L. I. 158; Cozens v. Thayer, 1 W. N. C. 267; Fox V. Mausman, 5 W. N. C. 511. 432 Dugan V. Loyd, 2 Miles 259 ; Scott v. Loughery, 6 W. N. C. 123. 433 Kearney v. Collins, 2 Miles 13. And see Dickson v. Buchanan, 5 W. N. C. 192. 434 Montgomery v. Johnston, i Miles 324; Dickson v. Shaw, 2 Miles 262. See Bishop v. De Normandie, i Pitts. 145. 435 Farmers & Mechanics' Bank v. Sellers, 2 Miles 329. 436 Hennessy v. Muller, i W. N. C. 106. 437 Miners' Bank v. Blackiston, 2 Miles 358. And see Dundore v. Dobson, 6 W. N. C. 299. 438 De la Rigaudiere v. Standard Mutual Life Ins. Co., 19 Dist. 618. 439 Zimmerman v. Drake, 17 Dist. 754. Of Judgment by Default after Appearance. 535 A statement of claim in form assumpsit, but which seeks to re- cover damages for acts done by the defendant in a judicial ca- pacity, does not require an affidavit of defense. The actions of assumpsit for which judgment may be taken for want of an af- fidavit of defense are limited to those which are founded on con- tract alone, and do not include cases in which the cause of action is ex delicto or of a mixed character of contract and tort.**" Nor is a feigned issue within the affidavit of defense law.**^ Since the act of May 25, 1887, judgment may be taken on a policy of insurance for want of an affidavit of defense ;**^ and a promissory note given to a mutual fire association to secure as- sessments is within act.**^ But prior to this act a policy of insur- ance was not within the rule requiring an affidavit of defense in actions on written instruments for the payment of money.*** An averment is insufficient which states that the policy was is- sued by a mutual insurance company without authority of law with no facts to support the averment, nor in such case can the defendant who has accepted a policy from the company deny that it was legally organized.**" So is an averment resting on the ap- plication for a life insurance policy if it is not attached to the policy as required by the act of May 11, 1881.**" 28. How is necessity of afiBdavit determined, (r) The proper way to raise the question whether an affidavit of defense is required in reply to a statement is for the plaintiff r iVale 159. 440 Kinney v. Mitchell, 14 Dist. 301 ; Corry v. Pennsylvania R. Co., 194 Pa. S16; Brady v. Osborn Engineering Co., 14 Dist. 324; Bartoe v. Guckert, 158 Pa, 124; Wood v. Va. Hot Springs Co., 202 Pa. 40; Cos- grove V. Pittsburg, Cin. & St. Louis R. Co., 16 Dist. 161; Dulaney & Wharton v. Hoosac Tunnel Fast Freight Line, 30 C. C. 606; United Col- lieries Co. V. Pennsylvania R. Co., 11 Dist 300. 441 Brink v. Spencer, 14 Dist. 570. 442 Cohen v. Home Mutual Life Ins. Co., 4 C. C. 146; Locker v. Kit- tanning Ins. Co., 4 Law Times (N. S.) 187; Lycoming Fire Ins. Co. v. Dickinson, 4 W. N. C. 271. 443 Frederici v. Pennsylvania Mutual Ins. Co., I Mona. 493; West Branch Ins. Co. v. Smith, 3 Leg. Chron. 38. 444 Coburn v. Home Mutual Life Association, 4 C. C. 146. 445 International Sav. & Trust Co. v. Stenger, 31 Super. Ct. 294. 446 Metropolitan Life Ins. Co. v. Jenkins, 5 Cent. 875; Hebb v. Kit- tanning Ins. Co., 138 Pa. 174; Cohen v. Home Mutual Life Ins. Co., 4 C. C. 146; Hendel v. Reverting Fund Ins. Co., 2 Dist. 116. This act directs that all hfe and fire insurance policies shall have attached to them 536 Common Law Practice in Pennsyi,vania. to entei a rule for judgment for want of an affidavit of defense ; a rule by the defendant to show cause why he should not be re- lieved from filing one is not proper.**' In some counties a judg- ment by default for want of an affidavit must be by motion in court.*** The question therefore of the necessity of an affidavit cannot be properly raised on appeal in an action against a carrier for the loss of goods if the plaintiff has waived the tort and sued on the contract and the defendant has elected to file an affidavit and tried his case under the pleadings.**^ 29. The defense must be legal. (s) The defense averred must be a legal one,*^° but the legal con- clusion should not be stated without giving the court the essen- tial facts from which to draw its own conclusions ;*°' a mere legal conclusion is insufficient.*^^ And an averment which may be a fact, or an inference of law from particular facts set forth is bad for uncertainty.*'^ Facts that overcome the plaintiff's prima facie title and which are sufficient to put him on rebutting proof when properly averred in an affidavit entitle the defendant to a trial by jury.*'* Also an affidavit which puts the plaintiff on proof of any matter dehors the instrument in suit is sufficient to prevent judgment.*'^ An affidavit must contain all the facts nec- essary to constitute a legal answer; an omission cannot be sup- plied by inferences from the facts stated.*'* An affidavit should state specifically and at length the nature and character of the defense, and should set forth such facts as will warrant the legal inference of a full defense to the plaintiff's cause of action.*" s I Vale 184. copies of the application signed by the applicant, otherwise it is not to be considered a part of the contract or received in evidence in any controversy between the parties. P. L. §§i, 20, 2 Purd. §68, p. 1955, which see for the object and construction of the act. 447 Commonwealth v. Payton, i Dist. 609. 448 Blair v. Warden, 4 C. C. 464; Doud v. Citizens' Ins. Co., 6 C. C. 499- 449 Ridgway Grain Co. v. Pennsylvania R. Co., 228 Pa. 641. 450 Hollis v. Brown, 159 Pa. 539. 451 Superior Nat. Bank v. Stadelman, 153 Pa. 634. 452 Sigua Iron Co. v. Vandevort, 164 Pa. 572. 453 Boal v. Citizens' Nat. Gas Co., 23 Super. Ct. 339. 454 Lerch Hardware Co. v. First Nat. Bank of Columbia, 109 Pa. 240. 455 Hunter v. Reilly, 36 Pa. 509. 456 Class v. Kingsley, 142 Pa. 636. 457 Superior Nat, Bank v. Stadelman, 153 Pa. 634. Of Judgment by Default after Appearance. 537 The defense is sufficient if substantial, though informally stated;"* but facts must be stated, not conclusions;*'*" the de- fense must be stated, not suggested.**" In averring facts enough should be set forth to show prima facie a good defense, and a failure to do so, either from the omission of essential facts or manifest evasiveness in the mode of statement will be insufficient to prevent judgment.**^ The affi- davit must be positive and so certain in its averments of fact that if false the maker would be exposed to prosecution for per- jury.**^ It must be explicit, leaving nothing to inference, since that which is not averred will be taken not to exist.*"^ It should not state conclusions of facts without stating them in detail.*®* It should not state contradictory or inconsistent averments.*^^ If a contingency is set up, its happening must also be stated.**® Facts should not be stated in the alternative.*"' An affidavit should be an entire defense, or pro tanto; in the latter case it should be sufficiently precise to enable the plaintiff if he elects, to take judg- ment for the specific amount admitted to be due.*** No intend- ment can be made in favor of the defendant; it is his duty dis- tinctly to set forth the fact on which the defense must turn.**" The affidavit must not be argumentative;*'* and a frivolous affi- davit may be treated as a nullity and judgment may be entered without a rule to show cause.*'^ 458 Whittaker v. Read, 9 W. N. C. 144; Janeway v. Moss, i W. N. C. 337- 459 Kemp V. Kemp, i Wood. 154. 460 Tracy v. Haggerty, i Lack. Jur. 36. 461 Yearsley v. Glaser, 32 Super. Ct. 141 ; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537. 462 Erie City v. Butler, 120 Pa. 374; Moore v. Phillips, 154 Pa. 204. 463 Class V. Kingsley, 142 Pa. 636; Blood v. Crew-Levick Co., 177 Pa. 606; Wanner v. Emanuel's Church, 174 Pa. 466. 464 Erie City v. Butler, 120 Pa. 374; Conrad v. Western Union Tel. Co., 162 Pa. 204. 465 Capital City Ins. Co. v. Boggs, 172 Pa. 91; Scranton v. Jer- myn, 156 Pa. 107; Hiestand v. Williamson, 128 Pa. 122; Hibberd v. Mul- len, 14 Dist 419. 466 Scott V. Meyer, 6 W. N. C. 447. 467 Boston Nat. Bank v. Bartholomew, 2 W. N. C. 445; Hughes v. Smart, 19 W. N. C. 450 ; Harnish v. Musser, 19 Lane. L. Rev. 283. 468 ' Gould V. Bush, 13 W. N. C. 29, 469 Ketterer Mfg. Co. v. Baltic Brewing Co., 22 Super. Ct. 210. 470 Bank v. McCracken, 22 W. N. C. 10. 471 Bank v. Flanigan, 39 L. I. 264. 538 Common Law Practice in Pennsylvania. 30. Nature of denials, (t) An affidavit in its denials need not be more specific than the averments which are in the statement ;"'' it is enough to deny the material allegations contained therein;*'^ the defendant should not reply to anticipatory averments.*^* Likewise an affidavit is responsive which sets up facts from which an explicit denial can be clearly inferred.*" On the other hand an affidavit which does not respond to the material averments contained in the statement is insufficient to prevent judgment.'"^ If the affidavit discloses nothing to put the plaintiff on inquiry it must be as- sumed that there was nothing.*'^ If the affidavit be evasive the plaintiff is entitled to judgment.*'* Again, all averments in the statements which are not denied in the affidavit will on a rule for judgment for want of a sufficient defense be taken as admitted, and the rule for judgment should be made absolute when there is no denial of the indebtedness in the statement.*'* A traverse of nonessential statements will not prevent judgment, as they may be treated as surplusage.**" If the evidence is given in detail in the statement, the defendant may reply in the same detailed manner.**^ 31. Averments must be accepted as a verity. (u) Averments in an affidavit must be accepted as a verity.**^ The court has no authority where there is a sufficient defense averred, t I Vale 198. u I Vale 201. 472 Deacon v. Smaltz, 10 Super. Ct. 151; Markle v. Winston, 31 C. c. 33. 473 Galey v. Fitzpatrick, 171 Pa. 50; Tredway v. Kennedy, 153 Pa. 438; Frishmuth v. Baker, 159 Pa. 549. 474 Kimball v. Grant, 19 C. C. 96. 475 Smith V. Elder, 167 Pa. 487. 476 Mack Paving Co. v. Young, 166 Pa. 466. 477 Wanner v. Roth, i Wood. 13. 478 Schman v. Jaquett, 5 W. N. C. 183. 479 Smith V. Huston, 11 W. N. C. 353; Third Reformed Church v. Jones, 132 Pa. 462. 480 Terry v. Wierderoth, 147 Pa. 519. 481 Anchor Sav. Bank v. Stoneham Tannery Co., 8 C. C. 303. 482 Morrison v. Warner, 197 Pa. 59; Johnston v. Gallery, 173 Pa. 129; Hunter v. Forsyth, 205 Pa. 466. But if the affidavit is not filed in time and only on a rule to open a judgment regularly entered, the court may critically examine the averments like other evidence presented in an ap- plication to open a judgment. Ibid. Of Judgment by Deb^ault after Appearance. 539 to go into the whole matter in detail and enter judgment for an amount not claimed by the plaintiff or admitted by the defend- ant.**^ A judgment must be refused where the averments of the affidavit are a positive denial of the plaintiff's claim or show facts which prima facie amount to a defense.*^* 32. How defendant may aver them.(v) The defendant may positively aver in his affidavit facts on his own knowledge;**^ or he may aver that he is informed, believes and expects to be able to prove the facts set forth ;**" either aver- ment is sufficient. Says Justice Mitchell : "The established and approved form in which this should be done, is either to set forth the facts themselves affirmatively for the court to judge of, or if the affiant cannot state them of his own knowledge, that he is informed, believes and expects to be able to prove them. The defendant, or his counsel, who departs from this approved form, and substitutes another which he may think a full equivalent, does so at his own risk."**^ If the facts are averred on information and belief the affiant need not state how or in what manner they will be established.**' And if the defendant makes his own affi- davit and avers matters on his own information and belief he must by rule of court, aver his ability to prove them on the trial of the cause.**' The same rules apply to an agent,*'" business manager,*'^ defendant's attorney,*'^ or other representative of the defendant. V I Vale 180-201. 483 Ibid. 484 Bryson v. Home for Disabled Soldiers, 168 Pa. 352. 485 Wolf V. Jacobs, 187 Pa. 262; Knight v. Somerton Hills Cemetery, 205 Pa. 552; Andrews v. Blue Ridge Packing Co., 206 Pa. 370; Eyre v. Yohe, 67 Pa. 447; Hess v. Shoff, 18 Dist. 385; Yearsley v. Glaser, 32 Super. Ct. 141; Hess v. Shoff, 18 Dist. 385; Woods v. Vankirk, S Dist. I3S- 486 Reznor v. Supplee, 81 Pa. 180 ; Black v. Halstead, 39 Pa. 64. 487 Newbold v. Pennock, 154 Pa. SQi, 597- See also Punxsutawney Iron Co. V. Fort Pitt Iron Co., 216 Pa. 432. 488 Banning, Cooper & Co. v. Murphy, 226 Pa. 568, 542; Bronson v. Silverman, TJ Pa. 94; Reznor v. Supplee, 81 Pa. 180; Moeck v. Littell, 82 Pa. 354; Eliel v. Chamberlain, 48 Super. Ct. 610, 617. 489 Banning, Cooper & Co. v. Murphy, 226 Pa. 568. 490 Lowry V. National Safe & Lock Co., 48 P. L. J. 240. 491 Andrews v. Blue Ridge Packing Co., 206 Pa. 370. 492 Creighton v. National Safe Co., 10 Dist. 600. 540 Common Law Practice in Pennsylvania. "Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness.*®^ Averments of set oflF must be as specific as those used in a statement of claim. The defendant in respect to such a claim is the actor, and the obliga- tion is upon him to aver his set ofiE in terms incapable of being misunderstood.*®* An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would al- low."*®= 33 Affidavit may be in the nature of a demurrer. "A judgment for want of a sufficient affidavit of defense is in effect a judgment on demurrer."*®" While both an affidavit and demurrer ought not to be filed, yet this has sometimes been done, but not after the filing of an affidavit.*®^ Thus it appeared from the exemplification of the record filed with the statement in an action based on a foreign judgment that there had been no per- sonal service on the defendant though the want of jurisdiction was set up in the affidavit of defense, the defendant was permit- ted to raise the same point afterward by demurrer.*®^ The higher court, however, has clearly decided that whenever the defendant questions the plaintiff's legal cause of action, the proper way to do this is by demurrer.*®® 34. Averments dehors the instrument. The defendant may be required to answer an averment dehors the instrument, a copy of which is filed : such as presentment on a day anterior to the commencement of the suit f°'' where the note sued on is signed by an agent, the authority of such agent ;^°* 493 Markley v. Stevenson, 89 Pa. 279. 494 Loeser v. Erie City Rag Warehouse, 10 Super. Ct. 540. 495 Moschzisker, J., Law v. Waldron, 230 Pa. 458, citing also Com- ley V. Simpson, 6 Super. Ct. 12; Kemp v. Kemp, i Wood. 154. 496 Fritz V. Hathaway, 135 Pa. 274, 286; Humeston Co. v. Alten- burg, 18 Dist. 696; Trademen's Bank v. Johnson, i Dist. 445; Brooks v. Keller, 173 Pa. 615. 497 See Chap. 21, §5. Wagner v. Smith, 11 Dist. 662. See Sutterly v. Fleshman, 48 Super. Ct. 619. 498 Paltrowitz v. Lucknow Iron & Steel Co., 15 Dist. 738. 499 Bradly v. Potts, 155 Pa. 418, 427. See Chap. 21, §1. For contrary rule, see Robinson v. Montgomery, 3 Dist. 661. SCO Bank of the United States v. Thayer, 2 W. & S. 443. And see Rile V. Worl, i Phila. 45 ; Newbold v. Comfort, 2 Clark 331 ; Rhoads v. Third National Bank, 2 W. N. C. 140. 501 Montour Iron Co. v. Coleman, 31 Pa. 80. Of Judgment by Default aftkr Appearance. 541 •where the agreement is to pay an amount to be recovered by ver- dict and judgment, the amount of such recovery;'"^ and where the condition of a mortgage is obscure, the terms of the bond re- cited in it, though no copy of the bond be filed, but such averment must be sufficient to complete the plaintiff's title f^ and must be restricted to a statement of the plaintiff's claim, and his title to sue upon the instrument.^"* In an action against a married woman upon a promissory note, it is sufficient, in the affidavit of defense, to set up the coverture, and aver that it was not given for necessaries ; she is not bound to deny an affidavit, filed with the copy, that she carried on business as a feme sole trader ;^°^ but she must deny an averment, that the goods purchased were for the impfovement of her separate estate.'"^ And where the defendant's liability is not absolute, on the face of the instru- ment, but depends on the happening of a contingency, he is not bound to deny the happening of such contingency, an averment of which is filed with the copy.^" "Where a copy of the instru- ment is filed, it is in the power of the defendant to deny all in- debtedness upon it, or to explain the nature of his defense against all or any claims that might arise upon- the face of the instru- ment. It would seem as if the legislature intended that the pro- priety of entering a judgment was to be tested, not so much by the plaintiff's claim, as by the defendant's affidavit."^"' 35. Affidavit is no part of pleadings. An affidavit of defense is no part of the pleadings. It is a mere 502 Montayne v. Carey, i W. N. C. 311; Allen v. Patton, i W. N. C. 614. 503 Kennedy v. Ross, 25 Pa. 256; Maule v. Ardley, 3 Clark 28. 504 Imhoff V. Brown, 30 Pa. 504, 3 Phila. 45. An averment dehors the instrument may show to whom, and to what amount, the defendant is liable; but the instrument itself must create the liability. Morris v. Guier, 5 W. N. C. 132 ; Strauch v. Royal Land Co., 35 L. I. 78. It seems, that the plaintiff may have judgment upon a sheriff's interpleader bond, with an averment of a breach. Brenizer v. Cahill, 6 W. N. C. 147. 505 Imhoff V. Brown, 30 Pa. 504. 506 Harper v. Graham, 4 W. N. C. 183; Allen v. Graham, 3 W. N. C. 493- 507 Dickerson v. McCausland, 3 W. N. C. 327. It is difficuh to reconcile this case with Montayne v. Carey, I W. N. C. 31 1- See Dugan V. Loyd, 2 Miles 259; Johnson v. Hille, 2 Clark 274; Fertig v. Maley, S W. N. C. 133; Scott V. Loughery, 6 W. N. C. 123. 508 Dewey v. Dupuy, 2 W. & S. 556; Sergeant, J. 542 Common Law Practice in Pennsylvania. step or incident of the proceedings required in order to prevent a summary judgment by default. Having served that purpose its function is ended unless further enlarged by rule of court.°°» It cannot be read to the jury unless formally put in evidence as an admission,^^" nor can its failure to deny averments of the plain- tiff's statement be used or considered as evidence of their truth."^ Said Justice Clark: "An affidavit of defense, unless otherwise provided by rule is only intended to prevent judgment by de- fault ; this done, the affidavit is functus officio, its purpose is sin- gle and specific, it is no part of, nor connected with the pleadings, it does not discharge any office, save that only for which it was designed.®^'' 36. Before whom it may be sworn. — Preparation. The affiant may swear to the affidavit before any officer of another state, who is presumed to be duly aluthorized-^^^ And it may be filed, at any time before motion for judgment ;°" and though the plaintiff might have been entitled to judgment, on motion, yet, if he take a rule, the defendant may file an affidavit of defense at any time before the return of the rule.^^^ If the de- fense depend upon books and papers in the hands of the plain- tiff, and the defendant show that he has demanded an inspection of them and been refused, the rule for judgment will be in- definitely suspended; since all presumptions are against a party who has evidence in his exclusive possession, and conceals it.°^* And the court will grant inspection of the plaintiff's book of orig- inal entries, a copy of which purports to be filed, to enable' the 509 Muir V. Preferred Accident Ins. Co., 203 Pa. 338; Johnson v. Royal Ins. Co., 218 Pa. 423. The recent mechanics' lien act, however, says Justice Stewart, "contemplates that the real issue in such cases is to be defined through affidavit and counter affidavit." Deeds v. Imperial Brick Co., 219 Pa. S79. S8i. See also Chap. XXVI, §82. SIC Mullen v. Union Central Life Ins. Co., 182 Pa. 150. 511 Taylor v. Beatty, 202 Pa. 120. 512 Xander v. Commonwealth, 102 Pa. 434, 439; Sullivan v. Johns, 5 Wh. 366; Erwin v. Leibert, 5 W. & S. 103; Rodgers v. Kichline, 28 Pa. 231 ; Finlay v. Stewart, 56 Pa. 183. 513 Champion v. Harthill, i W. N. C. 331 ; Lavelle v. Prudential Ins. Co., 2 Lack. Jur. 306; Stroheim v. Pack & Sons Mfg. Co., 10 Dist. 668. 514 Gillespie v. Smith, 13 Pa. 65. 515 Ritter v. Leonard, 2 Pars. 255. See Duncan v. Bell, 28 Pa. 516. 516 Lord v. Ocean Bank, 20 Pa. 387. Oif Judgment by Default after Appearance. 543 defendant to prepare his affidavit of defense ;^" and this will be enforced, by enlarging the time for filing an affidavit, until an inspection is given.'^' 37. Sufficiency, (w) It is sufficient that the defense be stated with certainty to a common intent.^^^ But the defendant must distinctly set forth the facts on which the defense must turn."^" The affidavit should state specifically, and at length, the nature and character of the defense relied on, and should set forth such facts as will war- rant the legal inference of a full defense to the plaintiff's cause of action.^^^ Thus, in an action on a note, a mere denial that there was any consideration, is not sufficient ;'^^ nor is an aver- ment that the charges in a physician's bill are too high f-^ nor an averment of a payment on account, without specifying time, place and manner."^* The affidavit should distinctly aver every fact necessary to constitute a defense; nothing should be left to inference ;^^^ thus, in an action by the indorsee of a promissory note, if it be intended to deny that the plaintiff is a bona fide holder for value, it is not enough to aver that he received it for an "antecedent debt;" it must be further averred that he took it as collateral security; otherwise it will be presumed to have w I Vale 136, 178, 204-236, 258, 263, 324, 352. 517 Wanner v. Emanuel's Church, 174 Pa. 466; Leibsperger v. Read- ing Sav. Bank, 30 Pa. 531; Allen v. Erie City Bank, 57 Pa. 129; Kelly v. Livingston, i W. N. C. 95. 518 Ibid. 519 Hugg V. Scott, 6 Wh. 274; Thompson v. Clark 56 Pa. 33; Cald- well V. West, I Phila. 288; Grier v. Philadelphia, 29 L. I. 52. 520 Comly V. Bryan, 5 Wh. 261; Rising v. Patterson, 5 Wh. 316; Dows V. White, 2 Miles 140; Hinckley v. Shope, I Leg. Gaz. 54. 521 Bryar v. Harrison, 37 Pa. 233; Black v. Halstead, 39 Pa. 64; Woods V. Watkins, 40 Pa. 458; Blackburn v. Ormsby, 41 Pa. 97; Anspach V. Bast, 52 Pa. 356; Bronson v. Silverman, 32 L. I. 3°; Bright v. Hewitt, 2 W. N. C. 626. 522 Riley v. Bullock, Dist. Court, Phila., 23 Sept., 1848. 523 Thompson v. Daniels, Dist. Court, Phila., 9 Dec, 1848. But see Thomas v. Askin, 6 W. N. C. 500. 524 Fisher v. Stokes, Dist. Court, Phila., 21 Dct, 1848. MS. 525 Brick v. Coster, 4 W. & S. 494; Moore v. Somerset, 6 W. & S. 262; Peck V. Jones, 70 Pa. 83; Ogden v. Offerman, 2 Miles 40; Forch- heimer v. Feistman, Bright. 86; Bruner v. Wallace, 4 W. N. C. S3; Mar- tien v. Wodruflf, 4 W. N. C. 211; Warner v. Wenrich, 34 L. L 297; Fox v. Horstman, 34 L. I. 3i3 ; Gaskill v. Lynch, 4 W. N. C. 542. 544 Common Law Practice in Pennsylvania. been received in payment.^^^ And the affidavit must be positive, as to the facts or denial of the cause of action ;'^' an affidavit in the alternative is insufficient.^^' An affidavit is sufficient, if it set forth in words, or by neces- sary inference, the indispensable elements of a good defense ;^^' it need not negative every objection which fine critical skill may deduce.''" If it put the plaintiff upon proof of any matters dehors the instrument sued on, it is sufficient to prevent judg- ment."'^ If fraud be set up as a defense, the affidavit must show in what it consisted;''^ so, as to the special circumstances con- stituting the defense of usury."'' It is not sufficient to swear to a conclusion of law; all the facts must be set forth, that the court may draw the proper conclusion."'* If a set-off be sworn to, the items and amount need not be stated; provided it be said to exceed the plaintiff's claim;"'" but the facts and circum- stances of a right of recoupment must be distinctly averred;"' and a set-off must be alleged to be due and unpaid."'^ If a part 526 Bardsley v. Delp, 6 W. N. C. 479. 527 Harris v. Mason, 2 Miles 270. 528 Boston Bank v. Bartholomew, 2 W. N. C. 445. 529 Selden v. Neemes, 43 Pa. 421 ; Twitchell v. McMurtrie, TJ Pa. 383 ; Delp V. Sowers, 5 W. N. C. 167. Thus, in an action against a secona indorser, an affidavit averring that the defendant is informed and be- lieves, and expects to be able to prove, that the payee is the real owner of the note, and that the suit is brought for his benefit, is sufficient to prevent judgment. Oberle v. Schmidt, 86 Pa. 221. It is sufficient, that it set forth a prima facie defense. Sixth National Bank v. Harkness, 6 W. N. C. 108. 530 Leibersperger v. Reading Sav. Bank, 30 Pa. 531 ; Christy v. Bohlen, 5 Pa. 38; Grier v. Philadelphia, 29 L. I. S2. 531 Hunter v. Reilly, 36 Pa. 509; Purves v. Corfield, i Phila. 174; Donnely v. Robeno, 23 L. I. 117; Orth v. Baker, 3 Leg. Chron. 197; Woolverton v. Smith, 4 W. N. C. 442; Eggler v. Fleishman, 4 W. N. C. 574; Prahl v. Smaltz, 26 P. L. J. 127. 532 Sterling v. Mercantile Mutual Ins. Co., 32 Pa. 75 ; Matthews v. Long, 3 W. N. C. 512. 533 Eckstein v. Harland, 4 W. N. C. 150. 534 Stitt V. Garrett, 3 Wh. 281; Dewey v. Dupuy, 2 W. & S. 553; Marsh v. Marshall, 53 Pa. 396; Penn v. Auer, 6 W. N. C. 447; Moore v. Susquehanna Mutual Fire Ins. Co., 196 Pa. 30. 535 Runyan v. Crawford, Dist. Court, Phila., i April, 1848. Fletcher v. Bancroft, Ibid., 14 Oct., 1848. MS. And see Lawrence v. Smedley, 6 W. N. C. 42. 536 Louchheim v. Becker, 3 W. N. C. 449, I W. N. C. 429. 537 Smyth v. Armstrong, 2 W. N. C. 383. Of Judgment by Default after Appearance. 545 of the set-oflf be apparently barred by the statute of limitation, but is not separated from the rest, the affidavit is insufficient.^^' Where the affidavit sets forth a prima facie defense the court will not decide further upon the law of the case.^^' Since the act of 1887 the same completeness is required as before."" Says Justice Williams: "The act of 1887 was in- tended to shorten the road to judgment or issue by requiring the plaintiff in all forms of action ex contractu to state his cause of action and the amount which he believes to be due him in a clear and concise form, and permitting him to move for judgment unless the defendant shall, with like clearness and definiteness, state the nature and character of the defense under oath."^*^ It must be specific and not vague, equivalent or evasive.^*^ It must be construed against the party making it, but the defendant is not bound to deny a liability not fairly arising from the state- ment.'*^ It must exhibit in words or by necessary reference '^^ the elements of a substantial defense-^*' "The facts should not be set forth in any equivocal or evasive manner, but with reason- able precision, so that the plaintiff may be accurately advised of the true nature of the defense, if any exists.'*® The efficacy of an affidavit cannot be impaired by the discharge of a rule to dissolve an attachment, the plaintiffs must establish his claim and cannot disprove the averments of the affidavit by affidavits used in opposition to the rule to dissolve.'*' An insuffi- 538 Hines v. Porter, i Pears. 155. 539 Chartiers Railway Co. v. Hodgens, Tj Pa. 187; Pittsburgh, Fort Wayne & Chicago R. Co. v. Horbaugh, 4 BrewSt. 115; Conrad v. Rodg- ers, 3 W. N. C. 157- 540 Close V. Hancock, 3 Super. Ct. 207; Hutton v. McLaughlin, i Super. Ct. 642; Fitz v. Hathaway, 135 Pa. 274; Jones v. Neal, 19 W. N. C. 460; Cochrane v. Emmertz, 3 Del. 433; Bloomingdale v. National Fire Ins. Co., 27 P. L. J. 33; Shafer v. Keystone Mutual Benefit Association, 22 C. C. 51. Where the proposed defense is one of payment the same precision of proof is not required as where the judgment is attacked on the ground of a contemporaneous parol agreement varying the terms of obligations on which it is founded. Lee v. Sallada, 7 Super. Ct. 98. 541 Barr v. McGary, 131 Pa. 401- 542 American Mech. B. & L. Association v. Wilson, 23 Lane. L. Rev. 387; Sharpless Bros. v. Stirman, 4 Dist 569. 543 Barker v. Fairchild, 168 Pa. 246. 544 Selden v. Neemes, 43 Pa. 4^1 ; Mitchell v. McMurtrie, 'J^ Pa. 383. 545 Sharpless v. Stirman, 4 Dist. 569. 546 Noble V. Kreuzkamp, 11 1 Pa. 68. 547 Young V. Miller, 174 Pa. 639. 35 546 Common Law Practice in Pennsylvania. cient affidavit cannot be supplied before the appellate court by argument or history of the case."*" When facts necessary to state a defense are in the plaintiff's control, there must be an averment of a diligent effort to obtain them and time for inspection.^*" Likewise an averment of ignorance of a defense is insufficient un- less supplemental by a statement of the defendant's diligent ef- fort to inform himself and failure to do so without fault.^'" Again, an affidavit is sufficient if setting forth in words or nec- essary inferences therefrom the indispensable elements of a de- fense ; it need not be drawn with such nicety that no critical skill can suggest an objection.^^^ a. In payments and tenders. Passing from general rules relating to averments, to those re- lating to particular transactions, let us treat first of those re- lating to payment and tenders. An affidavit of payment must set out with a reasonable degree of particularity the amount, time and manner, and the person to whom and by whom the payment was made,*"^ yet an affidavit which fails to set forth the essen- tial facts of payment may be held sufficient, if this reason for the defendant's failure is therein set forth.^^* If payment was made to a partnership the affidavit need not state to which partner payment was made.^" An averment that the defendant has not been allowed a specific credit is sufficient to carry the case to the jury.^'= If the suit be on a claim for boarding the affidavit should state that the full amount of each month's board was paid at the end of each month if this were the iactf^^ in a suit for goods the affidavit should aver payment, a receipt in full, if one was given, and set forth a copy of the 548 Warnersho v. Mann, 9 Super. Ct. 251. 549 Kimball v. Com. Title, Ins. & Trust Association, 19 Super. Ct. 20; Amer. Mech. B. & I,. Association v. Dunlap, 20 Lane. L. Rev. 59. 550 Edison Co. v. McCorkell, 161 Pa. 227; Galligher v. Koon, i Grant sg. 551 Brown v. Gourley, 214 Pa. 154. 552 Hiestand v. Williamson, 128 Pa. 122; McCracken v. First Re- formed Congregation, in Pa. 106; Commonwealth v. Snyder, i Super. Ct. 286; Stockley v. Reibenack, 12 Super. Ct. 169; Kennedy v. Arnold, 16 Dist. 147. 553 Lanfield v. Lyon, 132 Pa. 441 ; Moore v. Smith, 81 Pa. 182. 554 Tinsley v. Stroh, 4 Kulp 333. 555 Hoffner v. Logan Square B. & L. Association, 4 Penny. 363. 556 McGuire v. Conway, 10 C. C. 298, Of Judgment by Default after Appearance. 547 check payable to the plaintiff duly indorsed.^'" An affidavit dis- closing that the debt in suit has been paid by lapse of time is suf- ficient.''^* Sufficient circumstances may also be set forth to raise the presumption of payment in less than twenty years.'^' An averment of a compromise payment is insufficient;^"" also an averment that notes were given in settlement of the plaintiff's claim if failing to allege that they were accepted an absolute payment, or had been paid at maturity f^^ also an averment that the indebtedness had been paid by notes ; and the plaintiff after- wards agreed to take the amount in trade and not bring suit;^"- also, an averment that the defendant gave a promissory note to the plaintiff which is not yet due,^^^ or an averment that the de- fendant gave a note to the use of the plaintiff without stating that it was accepted as absolute payment,"*** or the payment of a debt to a collecting agent by giving a note without setting forth acts showing his authority to receive it;"*"* also an averment of pay- ment "by check, "^** and an averment of payment unless it be stated that it was made on account of the claim in suit.^*' An averment that on a proper statement of account it will appear that the mortgage and interest have been fully paid is too general to be effective beyond the specific sums alleged to have been paid ;'*' to an averment of payment there should be added an averment that the defendant expects to prove payment on the trial of the cause.°*° In averring tender of payment in order to be effective, the 557 Price v. Worden, I Lack. L. N. 391. 558 Whelen v. Phillips, 8 Lane. L. Rev. 116. 559 Diamond v. Tobias, 12 Pa. 312; Hanna v. Lewis, 9 S. & R. 384. 560 Hibberd v. Mullen, 14 Dist. 149. 561 Berlin Iron Bridge Co. v. Bonta, 180 Pa. 448. 562 Morrison v. Nevin, 130 Pa. 344; McCoy Lime Co. v. McCoy, 16 Montg. 32. 563 Bank V. Chaney, 10 W. N. C. 137. 564 Philadelphia v. Stewart, 195 Pa. 309, affg. 9 Dist. 228. See Wis- consin Chair Co. v. Heilbronner, 30 C. C. 262. 565 Hannis Distillery Co. v. Rosenbluth, 12 Luz. Rep. 112. 566 Ulman v. Mealy, 19 W. N. C. 87; Meitzner v. Schwartz, 19 Dist. 44. 567 Selden v. Reliable B. & L. Association, 81^ Pa. 336. 568 Witmer v. Co-operative B. & L. Association, 3 Penny. 459. 569 Finn V. Conwell, 2 Lack. L- N. 118. 548 Common Law Practice in Pennsylvania. time must be stated.®" Thus in an affidavit of defense to a claim for boarding, the affidavit should state at least that the full amount of each month's board was paid at the end of each month, if this were the fact.''^ b. Nonperformance of contract. An averment of nonperformance of the contract in a suit by the plaintiff is sufficient.®" A mere averment of a warranty without more is bad, its terms should be set forth whether it was express or implied, by whom and by what authority it was made.®" Again, the averments of fact which accompany an ex- ecutory contract must be full, specific and precise.®" When the terms of a contract are ambiguous an affidavit founded on the defendant's version is sufficient ;®^® and in an action on a contract signed by an agent an affidavit denying his authority is sufficient to prevent judgment®'® If the plaintiff's statement founded on a contract does not say whether it is in writing or not, but the affidavit of defense avers that it is in writing, the plaintiff is not entitled to judgment, even if the affidavit be insufficient, because the statement is defective.®'' When an affidavit alleges as a matter of defense a contract in writing, the writing itself,®" or a full copy,®'" must be embodied in or annexed, or the affidavit will be fatally defective, unless the writing has been destroyed.®*" But if the plaintiff fails to set out in his statement of claim a full and complete copy of the instru- ment in suit, and the defendant supplies the part omitted in his affidavit of defense, the court will treat the case on a rule for 570 Thompson v. Johnson, i Phila. 506; McGuire v. Conway, 10 C. C. 298. 571 McGuire v. Conway, 10 C. C. 298. In claiming a credit for money paid on account the affidavit should state the time and manner of pay- ment. Hare v. Moore, 19 Dist. 222. 572 Spellier Electric Time Co. v. Leedom, 149 Pa. 185. 573 Gould V. Gage, 118 Pa. 559, Dig. 230. 574 McKeone Soap Mfg. Co. v. Religious Press Co., 115 Pa. 310. 575 Kellberg v. Bullock Printing Press Co., 39 L. I. 91. 576 Eggler V. Fleishman, 4 W. N. C. 574. 577 Lederer v. Greiner, 14 Dist. 142. But see Yardley Nat. Bank v. Vassant, 14 Dist. 145. 578 Wiliard y. Reed, 132 Pa. 5 ; Erie City v. Butler, 120 Pa. 374. 579 Knapp v. Duck Creek Valley Oil Co., 53 Pa. 185. 580 Smith V. Smith, 135 Pa. 48. Of Judgment ijy Default aeter Appearance. 549 ' judgment as though the statement had embodied therein the com- plete statement."*^ To this rule advertisements, hand bills and prospectuses are exceptions;"'^ also in an action on a foreign judgment, a copy of the note on which it was founded.^'^ When a new contract is the subject matter of defense it should be set up in an unequivo- cal way.°^* Also a collateral agreement,''^ a postal.^'" And when the laws of another state are set forth in an affidavit this must be done with precision."^^ Likewise if the subject matter of de- fense is a record, for example a judgment, a copy of it must be set forth or a reference made thereto by a point.'*' On the other hand general averments of nonperformance are insufficient."'' So is an averment that the contract in suit was conditional without averring nonperformance or the breach of condition on the plaintifif's part;"'" or the averment of nonper- formance of collateral agreements to the contract."'^ Thus in a scire facias sur mortgage an affidavit is insufficient which alleges a failure on the plaintiff's part to perform an independent agree- ment made at the time of executing the mortgage."'"' An affidavit which attempts to vary or contradict the express terms of a written instrument is sufficient without averring fraud."'^ So is an affidavit though varying or contradicting a written instrument, that avers a contemporaneous oral agreement S8i Yardley Nat. Bank v. Vansant, 14 Dist. 145; Genesee Paper Co. V. Bogert, 23 Super. Ct. 23. See White v. Sperling, 24 Super. Ct. 120. 582 Max Meadows Land Co. v. Mendenhall, 4 Super. Ct. 398. 583 Hogg V. Charlton, 25 Pa. 200. 584 Heister v. Schwenk, i Wood. 287. 585 Birkey v. Whitaker, 4 W. N. C. 137. 586 Lecrone Coke Co. v. Geisel, 6 Dauphin 219. 587 Spellier Electric Time Co. v. Geiger, 147 Pa. 399; Boughton v. American Ex. Nat. Bank, 9 W. N. C. 519. 588 Kraft v. Gingrich, 12 C. C. 604; Richards v. Bisler, 3 W. N. C. 485. 589 Miller v. Iron City Mutual Fire Ins. Co., 11 York 61; Linden- meyer v. Hartgen, 14 Dist. 142. 590 Lutz V. Sellers, i W. N C. 37; McLeod v. McCrea, 2 Lack. L. N. 231. 591 Bryar v. Harrison, 37 Pa. 233; Delahunty Machine Co. v. Penn- sylvania Mills, 19 Super. Ct. 501. 592 Building Association v. Gibson, 6 W. N. C. 502; Hummel v. Sid- dall, II Phila. 308. 593 American Home Sav. Bank v. Guardian Trust Co., 210 Pa. 320; Hatfield v. Thomas Iron Co., 208 Pa. 478. 550 Common Law Practice in Pennsylvania. on the faith of which the written instrument was executed by the defendant.*" An affidavit averring a contemporaneous agree- ment must state the circumstances attending its formation and terms, with precision, otherwise it is insufficient."^^ Again, in the absence of an averment of fraud, accident or mistake, an affi- davit is insufficient which avers that the instrument in suit was intended to have an effect different from that implied from its language."^ c. Legality of consideration. Illegality of consideration will not be presumed and all the facts must be precisely averred.°^^ If the contract is illegal in Pennsylvania but legal elsewhere, the affidavit should state where the contract was executed.^'* If there is a failure of considera- tion, the averment should be made with particularity and certain- ty. ""^ If usury is averred the amount charged and paid should be stated.""" If the claim be for liquors sold, and the defense be that they were adulterated, this averment will suffice without fur- ther particularity.""'^ Lastly an averment of the discovery of want of consideration after making the agreement is sufficient*"^ d. Want of consideration. On the other hand an averment of want of consideration with- 594 Machin v. Prudential Trust Co., 210 Pa. 253; Thomas v. Loose, 114 Pa. 35; American Harrow Co. v. Swoope, 16 Super. Ct. 451; Clinch Valley Coal & Iron Co. v. Willing, i8o Pa. 165; Callan v. Lukens, 89 Pa. 134; Parsons v. Adeler, 8 W. N. C. 72; Commonwealth Title Ins. & Trust Co. V. Folz, 19 Super. Ct. 28; Keeler v. De Witt, 24 Super. Ct. 463; Locher v. Jones, 14 Dist. 781. 595 Williard v. Reed, 132 Pa. 5; Hand v. Russel, i Super. Ct. 165. 596 Cochran v. Penn, 159 Pa. 184; Baugh v. White, 161 Pa. 632; San- ders V. Sharp, 153 Pa. 555. 597 O'Hare v. Second Nat. Bank of Titusville, 77 Pa. 96; Bryar v. Harrison, 37 Pa. 233; Donaldson v. Woodward, 8 At. 192; Spellman v. Kelly, 27 Super. Ct. 39; Watson v. Supplee, 15 W. N. C. 91. 598 Sigua Iron Co. v. Vandervoort, 164 Pa. 572; Braunn v. Keally, 146 Pa. 519; Dows V. White, 2 Miles 140. 599 Leechburg Foundry & Mach. Co. v. Jennings, 145 Pa. 559; Chaf- fey V. Boggs, 179 Pa. 301; Campbell Mfg. Co. v. Hickok, 140 Pa. 290; Youghiogheny Nat. Gas Co. v. Westmoreland Paper Co., 158 Pa. 559. 600 Seymour v. Hubert, 83 Pa. 346; Miller v. Irwin, 85 Pa. 376. 601 Under the act of March 29, i860, P. L. 346, 2 Purd. §70, p. 2330. Glenn v. Keenan, 9 W. N. C. 170; Rheinstrom v. Wolf, 26 Super. Ct. 559. But see Spellman v. Kelly, 27 Super. Ct. 39, affg. 13 Dist. 393. 602 Muhlenberg v. Hennig, 116 Pa. 138. Op Judgment by Default after Appearance. 551 out setting forth the facts specifically is insufficient ;°°* so is an averment in a claim for goods that those delivered were inferior in quality to those ordered unless the particular defects be set forth with certainty,""* or an averment in a claim for services, that those rendered were inferior or badly done without stating the specific defects,""' or in a suit on a note given for stock, that it was worthless unless containing the further averment of the defendant's willingness to return it.""" e. Actions of rent. Actions pertaining to land sold have occasionally been brought, but those for rent are far more numerous. It has often been held that an averment of the surrender of a lease is not sufficient without the further averment of acceptance by the lessor.""' The acceptance must be averred positively and not left to inference.""" An averment, however, of surrender to the plaintiff's agent and acceptance of possession by him,""' or the delivery to and accept- ance by the lessor's agent of the keys is sufficient."^" The fail- ure of the landlord to keep the premises in good repair as re- quired by the lease may be a good defense. The liability of the parties is a matter usually of interpretation of the lease."^^ f. Fraud. In averring fraud the affidavit must show in what it consist- ed f" in other words must state the circumstances and character of it;"^^ these must be fully set forth, but an averment that the representations inducing a contract were false and fraudulent 603 State Bank v. Zahn, 52 P. L. J. 191. 604 Coulston V. City Nat. Bank, 4 W. N. C. 297; Egan v. Tenison, i W. N. C. 158; Higel V. Quinlan, i W. N. C. 83. 60s Pittsburgh v. MacConnell, 13a Pa. 463; Tiedsman v. Loewen- grund, 2 W. N. C. 272. But see Murphy v. Liberty Nat. Bank, 179 Pa. 29s. 606 American Banking Co. v. Donnelly, 9 W. N. C. S73. 607 Ashurst V. Eastern Pa. Phonograph Co., 166 Pa. 357. 608 Brenckmann v. Fivebill, 89 Pa. 58, Dig. 333. 609 De Morat v. Falkerhagen, 148 Pa. 393. 610 Bradley v. Brown, 6 W. N. C. 282. 611 See Hollis v. Brown, 159 Pa. 539; Hess v. Weingartner, 5 Dist. 451; Schleppi V. Gindele, 14 W. N. C. 31; Cochran v. Ward, 16 York 7; Johnson v. Blair, 126 Pa. 426. 612 Sterling v. Mercantile Ins. Co., 32 Pa. 75; Garis v. Hopkins, i North. 3S8. 613 Blanton v. Craven, 173 Pa. 374. 552 Common Law Practice in Pennsylvania. entitles the defendant to have their good faith left to a jury.«" It has also been declared that judgment should not be granted for want of a sufficient affidavit which, though lacking clearness and conciseness, sets up fraud, failure of consideration and set- off, and altogether denies the plaintiff's right to recover any- thing.*^^ The affidavit must set forth the authority of the person who made the representation.*" An averment of mutual mistake in the making of a contract is insufficient.*^' Many of the cases in which fraud is averred pertain to promissory notes,*" and sales.*^® On the other hand general averments of fraud without setting forth the facts and circumstances are insufficient;*^" likewise averments of unilateral mistake which are not alleged to be caused by the plaintiff are insufficient.*^^ So is an averment of undue influence if failing to deny a valuable consideration and neglecting to set forth the facts.*''^ g. Set-off. Averments in reduction or set off must be stated with the same precision, as in setting forth a claim affirmatively in a state- ment, so that the plaintiff may, if he choose, elect to admit and take judgment for the balance.*^^ The defendant must aver 614 Smith, Kline & French Co. v. Smith, 166 Pa. 563. 615 Lengert v. Chaninel, 205 Pa. 280. 616 Harrisburg v. Baptist, 156 Pa. 526; Keffer v. Robinson, 2 W.- N. C. 689; McTuly v. Tuttle, 19 W. N. C. 97. 617 Lee V. Taylor, 154 Pa. 95; Tracy v. Haggerty, i Lack. Jur. 36; Miller v. Hauck, 16 Montg. 40. 618 Reamer v. Bell, 79 Pa. 292; Osmer v. Souder, 3 W. N. C ISS; Hackettstown Bank v. Mathews, 3 W. N. C. 158; Fischer v. Gilch, 13 W. N. C. 46; Gere v. Unger, 24 W. N. C. 7; First Nat. Bank of Hazle- ton V. Kline, 11 Kulp, 115; Goodwin v. Schott, 159 Pa. 552. 619 Wynne v. Jones, 10 Del. 56; Smith v. Smith, 166 Pa. 563; Hardt V. Reeves, 4 Sadler 569; Freeman v. Baras, 31 Super. Ct. 84; Corkran v. Patterson, 32 Super. Ct. 399. 620 Blanton v. Craven, 173 Pa. 374. 621 Reilly v. Daly, 159 Pa. 605. 622 Hamilton v. Lockhart, 158 Pa. 452. 623 Cosgrove v. Hammill, 173 Pa. 207; Ettinger v. Miller, 153 Pa. 4S7; Sweigard v. Consumers' Ice Mfg. Co., 15 Super. Ct. 285; Cadwalla* der V. Woolverton, IS Dist. 230; Stern v. Dwyer, Madden & Co., 15 Dist. 92s; Biernbaum v. Foster, 48 Super. Ct. 599; Law v. Waldron, 230 Pa. 458; Reilly v. White, 234 Pa. 115. Of Judgment by Dbfault after Appearance. 553 the amount to be due and unpaid,*^* and owed by him at the time the action was instituted.*^^ If barred by the statute of limitations, he must aver an express promise to pay it,"^® and if part of a claim be apparently barred by the statute, but is not sep- arated from the first which is good, the affidavit is insufficient f" the amount should always be stated unless it exceeds the plain- tiff's claim, whether in the form of a judgment or otherwise.*^* An averment of damages arising from the breach of an inde- pendent contract is sufficient,^^^ but the defendant should aver performance on his part.*^" He should also attach a copy of the contract, allege a breach and amount of damages and specify with precision wherein the breach consists."^^ The damages claimed as a set-off must be direct and capable of ascertainment by some well known legal standard, which might be properly deemed to have been contemplated by the parties when the con- tract was made and ascertained with approximate accuracy.*^^- Speculative damages or loss of profits incapable of liquidation cannot be averred by way of set-off,"^^ or a balance due on an un- settled partnership account.®^* But a failure to liquidate damages is not fatal if the affidavit is otherwise sufficient and the dam- ages are alleged to be in excess of the amount claimed."'^ If the averment relate to damages for defects in the quality of goods the nature and extent of these defects must be set forth with pre- cision.*^* If the averment relate to goods purchased by sam- 624 Smyth V. Armstrong, 2 W. N. C. 383. 62s Fleisher v. Blackburn, 15 Super. Ct. 289. 626 Weyna v. Bogert, 10 Kulp 205. 627 Hines V. Porter, I Pears. 155. 628 Link V. Wilson, 8 Montg. 142. 629 Nixon V. McCrory, loi Pa. 289. See Jellson v. Restein, 15 Super. Ct. 636; Carman v. Franklin Ins. Co., 6 W. & S. iS5- 630 Terriberry v. Broude, 173 Pa. 48; Ganster v. Vickers, 3 Walk. 148. 631 Close V. Hancock, 3 Super. Ct. 207; Works v. Krause, S Super. Ct. 622; Levering v. Gerhart, 10 C. C. 559- 632 Rakestrow v. Woodward, 25 Super. Ct. 165; Wade v. Haycock, 2^ Ta. 382. 633 Berlin Bridge Co. v. Boula, 180 Pa. 448. 634 Hains v. Rapp, 2 W. N. C. 395 ; Kilburn v. Curtis, I W. N. C. 432. 635 Davis Coal & Coke Co. v. Price, 17s Pa. 155; Lane v. Glass Sand Co., 172 Pa. 252. 636 Taylor v. Murphy, 148 Pa. 337; VoUmer v. Magowan, 180 Pa. no. 554 Common Law Practice in Pbnnsylvania. pie, it should state that when they were delivered the defendant discovered that some of them were not like the sample in speci- fied ways and could not be used; also the exact quantity of the goods which were defective and their value according to the pur- chase price,*''' and the same rule applies to the averment of de- fects in the quantity of work done.°^' Turning to insufficient averments of set-off an affidavit which fails to aver that the debt alleged as a set-off was due at the time the action was instituted is of this character.*^* Likewise an averment of an overcharge without specifying the time, is insuf- ficient."*" Also an affidavit which avers as a set-off the incom- plete performance of a contract on the plaintiff's part, is insuffi- cient if it fails to set forth specifically the fact unperformed."*^ Of course a valid set-off to part of a claim is insuffiicient to pre- vent judgment for the residue,'*^ the claim for damages is too vague and uncertain and will not be allowed as a set-off.**^ The most numerous class of cases in which the averments of loss are set up by way of set-off pertain to the sale of goods,"** machin- ery,"*° work and services."*" The act of April 19, 1901,"*' has not changed the rule disallow- ing a set-off in an action of replevin. Therefore an affidavit in such a case alleging the machinery replevied was to have had 637 Straus V. Welsh, 29 Super. Ct. 437. 638 Chain v. Hart, 140 Pa. 374; Mack Paving Co. v. Young, 166 Pa. 267. 639 Riley v. Ergo, i Super. Ct. 139; ClufJ v. Gunnis, 16 W. N. C. 177. 640 Griel v. Buckius, 114 Pa. 187; Jenkinson v. Hilands, 146 Pa. 380. 641 Consumers' Gas Co. v. Electric Co., 30 W. N. C. 222; Wilt v. Ruch, I W. N. C. 103; Silence v. Pierce, i W. N. C. 94, 154. 642 Sykes v. Anderson, 14 C. C. 329. 643 McBrier v. Marshall, 126 Pa. 390; Fetridge v. Megargee, 26 Super. Ct. soi; Furth v. Fretz, 6 Montg. 206. 644 Craig V. Lancaster Peerless Emery Wheel Co., 23 Lane. L. Rev. 335; American Speciality Stamping Co. v. Larvin, 54 P. L. J. 187; Kowdy V. Sav. Fund Loan Association, 31 Super. Ct. 52 ; Stevens v. Hal- lock, 7 Kulp 260; Wilmot & Hobbs Mfg. Co. v. Pennsylvania Bolt & Nut Co., 21 Super. Ct. 490; Genesee Paper Co. v. Bogert, 23 Super. Ct. 23; Westinghouse Electric & Mfg. Co. v. Conestoga Traction Co., 22 Lane. L. Rev. 237. 64s Croxton v. Davies Machine Co., 27 C. C. 148 ; Westinghouse Elec- tric & Mfg. Co. V. Conestoga Traction Co., 22 Lane. L. Rev. 237. 646 Snyder v. Lingo, 30 Super. Ct. 651; Kemp v. Kemp, i Wood. 154; Cadwallader v. Woolverton, 15 Dist. 230. 647 §5, P. L. 89, 4 Purd. §11, p. 4143. Of Judgment by Default after Appearance. 555 certain qualities which it lacked whereby the defendant suffered damage is insufficient.*** Again, when part of a set-off is insufficient, a supplemental affidavit may be allowed;^" also when the date of rendering a service is important and has not been filed.""" An affidavit may in some cases be amended.""^ h. Goods sold and delivered. The cases for goods sold and delivered are very numerous, but the principles that apply to them especially are not difficult to state. Generally, an affidavit in such a case should deny the pur- chase by the defendant or by any other person with his knowledge or by his authority, and should also deny the receipt or use of the goods.*^'^ An affidavit admitting that the goods were received, but reshipped and actually received by the plaintiff is sufficient"^^ And an averment that the goods were never sold and delivered, but if they were, that the defendant paid for them is argumenta- tive and evasive.*"* An averment is sufficient that the goods were sold to the de- fendant as the agent of another, which agency was known to the sender at the time of the sale.""'* But the averment of agency must be positive.""* Again, the defendant is not bound to deny an averment of agency ; a denial of his authority is sufficient f" but when goods are purchased by a third person the affidavit should deny the agency and also his authority.*"* And an affidavit which admits dealing with the agent individually, but fails to deny the defendant's knowledge of the agency is not sufficient.*"^ On 648 Patch Mfg. Co. V. Killinger, 26 C. C. 539. 649 Hines v. Porter, i Pears. 155. 650 Kemp V. Kemp, i Wood. 154. 651 Investment Real Estate Co. v. Taylor, 22 Montg. 132. 652 Pittsburgh, Ft. Wayne & Chicago R. Co. v. Harbaugh, 4 Brewst. 115; Conrad v. Rodgers, 3 W. N. C. 157- 653 United Oil Cloth Co. v. Dash, 32 Super. Ct. ISS- 654 Hertz V. Sidle, 20 Super. Ct. 88. 655 Richardson v. Phila. & Reading Coal & Iron Co., 29 P. L. J- 388; I. F. March's Sons v. Carman, 16 Dist. 877. 656 Gibins V. Dabney, 2 W. N. C. 490. 657 Jacoby v. Muller, 4 W. N. C. 478; Hunter v. Reilly, 36 Pa. 509. Eggler V. Fleischman, 4 W. N. C. 574. 658 Hart V. Kirk, i W. N. C. 84. See Keflfer v. Robinson, 2 W. N. C. 689, with respect to the purchase of goods through a third person. 659 Catasauqua Mfg. Co. v. Roberts, 2 Dist. 392. 556 Common Law Practice in Pennsvxvania. the other hand an affidavit is sufficient which avers that the plain- tiff is not the real owner who notified the defendant not to pay the plaintiff .««» With respect to the price an averment that the goods charged were excessive in amount is too vague, the excess should be spe- cified so that the plaintiff can have judgment for the admitted indebitness.°°^ With respect to a warranty of quality an averment which clearly and specifically sets forth an express warranty and breach is sufficient.**^ But a mere averment of warranty is not enough, nor an inference.*"^ It is also insufficient to make gen- eral averments of defects in the goods and therefore could not be used by the defendant without averring warranty, or offer to return the goods, or liquidate damages caused by their imperfec- tions.*** It should disclose the nature of the warranty, set forth its terms, and state when and where it was made.**° And an averment that the vendor warranted the goods ordered to be like and as good as the samples, justifies the inference of an express warranty and is sufficient.*** In averring quantity an averment that the plaintiff had failed to deliver the whole amount ordered and that the defendant had been obliged to buy other material at an increased price to com- plete his contract is sufficient.**' In an action for beer an aver- ment that the casks did not contain full measurement, is suffi- cient to send the case to the jury.**' An averment stating that goods were to have been delivered at the defendant's place of business in good merchantable condition, that they had not been 660 Fox V. Pray, 2 Miles 333. 661 Jenkinson v. Hilands, 146 Pa. 380. 662 Kaufman & Co. v. Cooper Iron Mining Co., 105 Pa. 537; Bacon V. Scott, IS4 Pa. 250. The affidavit should contain a clear and concise statement of the facts constituting a basis for an assessment of damages under the legal rule by which they are measured. Ogden v. Beatty, 137 Pa. 197. 663 Herrod v. Frauenthal, 2 Kulp 344; Hallman v. Good, 16 Dist. 823; Rowland Pulp Co. v. Jessup & Moore Paper Co., 10 Dist. 623. 664 Lindenmeyer & Sons v. Hertgen, 29 C. C. 116. 666 Tyrell v. Gage, 118 Pa. 559; Kramer v. Walsh, 12 Luz. L- R. 435- 666 Tyrell v. Rockwell, 2 C. P. Rep. 223. 667 Eastern Forge Company v. Baizley, 21 Super. Ct. 504. 668 Betz v. Shepperson, 5 Sadler 218. Of Judgment by Default after Appearance. 557 thus delivered, but in broken packages and diminished in quan- tity, is sufficient to prevent judgment for the whole amount.*'® Delivery of goods by the time promised is essential to the ven- dor's right to recover the price,"^" but a vendor who accepts and uses them cannot avail himself of this as a defense.*" But an averment is sufficient which admits the use of goods delivered after time by reason of the defendant's inability to purchase sim- ilar goods in open market, and also averring fully the damages sustained.*'^ Of course an averment that the goods were deliv- ered to and received by the defendant is sufficient."''^ But an averment that the delivery of goods had been delayed and that the defendants had been damaged in a stated sum is insufficient. The affidavit must set forth with reasonable certainty all the facts constituting a basis for the assessment of damages.*''* In an action for goods sold and delivered the averment must be exact not only with respect to the source and character of the set-off, but also the amount, when the facts are within the defend- ant's knowledge*^^ If the defendants are indebted for a part of the claim, it must be averred how much is due in order that the plaintiff may have judgment for that sum if he see fit to accept it."* In actions by and against partnerships, an averment by the de- fendant that he is not a member of the firm and in no way is in- debted to the plaintiff is sufficient;*^' so is an averment that a note forming the subject of the suit, was given for an individual and not for a firm debt.*^* And if the note was given by one of the defendant's firm after dissolution, it must be averred that the plaintiff had actual or constructive notice of such dissolution.*" An averment of withdrawal and notice to the plaintiff before the 669 Jolley & Co. V. Biehl Mfg. Co., 19 Lane. L. Rev. 132. 670 Stout V. Mullen, i W. N. C. 150; Depuy v. Arnold, i W. N. C. IS7. 671 McKay & Co. v. McKenna, 173 Pa. 581. 672 Rockwell Mfg. Co. v. Cambridge Springs Co., igi Pa. 386. 673 Nicholson & Renwick v. Longbotham, 9 Del. 330. 674 Gansler v. Bridges, 13 Super. Ct. 646; Blakeslie Mfg. Co. v. Hil- ton, 5 Super. Ct. 184, aflfg. 18 C. C. 553- 67s Sweigard v. Consumers' Mfg. Ice Co., 15 Super. Ct. 285. 676 Ettinger v. Miller, 153 Pa. 457. 677 Martien v. Manheim, 80 Pa. 478. 678 Real Estate Co. v. Russel, 148 Pa. 496. 679 Forepaugh v. Baker, 21 W N. C. 299. 558' Common Law Practice in Pennsylvania. goods were delivered to the firm is sufficient, and if the record does not show previous dealings the defendant is not bound to state the facts or aver actual notice.*'" An averment in an ac- tion against two defendants that he never was a partner of the other is sufficient to prevent judgment.*'^ So also is an averment that the defendants had withdrawn from the firm at the time, and that the plaintiff accepted from the remaining partners their ne- gotiable note in full payment of the claim."'^ On the other hand an averment that the defendant company is not a general partnership but a limited partnership is evasive.**' In an action on a foreign judgment against a limited partnership, an averment of dissolution before the recovery of the judgment is sufficient,*** and an averment of nonjoinder of other copartners as parties defendant is insufficient.*'^ Likewise an averment of the dissolution of a partnership before the contracting of the debt in controversy must aver knowledge or statutory notice of the dissolution of the plaintiff,*'* and an averment that the defendant was not a member of the firm at the time the note in controversy was given is insufficient.*'^ It should show when he ceased to be a member, also that had no unpaid debts, and that the note was not given for a debt prior to that time.*" i. Book accounts. A mere allegation in an affidavit of defense that the defendant had been refused permission to examine books pertaining to the plaintiff's claim is unavailing to prevent judgment; there should be a demand for their inspection.*" A rule of court providing that "all items of book accounts and other claims not specifically traversed or denied under oath or affirmation shall be taken as 680 Farrar v. Bobb, 4 C. C. 407; Sagnier v. Watson, 15 W. N. C. 4SS. 681 Long V. Jenkins, 12 C. C. 634. 682 Atha V. Barnett, 2 W. N. C. 478; Kaufman v. Kaufman, 2 Wood. 98. 683 Laferty v. Sheriff, 16 At. go. 684 Delp V. Hadley, 12 W. N. C. 323. 68s Posey v. Loutey, 2 W. N. C. 97. 686 Forepaugh v. Baker, 21 W. N. C. 299; Ss«nier v. Watson, 15 W. N. C. 4SS; Albietz v. Mellon, 37 Pa. 367; Farrar v. Babb, 4 C. C 407. 687 Billington v. Gautier Steel Co., 19 W. N. C. 339, affg. 18 W. N. C. 533- 688 Taylor v. Bushey, $ Lane. L. Rev. 181. 689 Wanner v. Emanuel's Church, 174 Pa. 466; L F. March's Sons V. Carman, 16 Dist. 877; Kelly v. Livingston, i W. N. C. 95. See §36. Of Judgment dy Default after Appearance. 559 admitted, and no proof thereon shall be required on the trial," does not apply unless the statement is "verified by affidavit," or a "specification of the items of the claim" is filed with it, in ac- cordance with other rules of court.*"" j. A prior adjudication. An affidavit averring that the subject of controversy has been decided in a previous action, and that the judgment is conclusive*"^ is sufficient.**^ Likewise that the claim has been used by the plaintiff as a set-off in another action between the same parties in which the plaintiff was the defendant.*"^ But an affidavit alleging the pendency of the same cause of action between the same par- ties in the courts of this,*"* or another state is insufficient.*"* So is an affidavit in the absence of fraud which alleges mistake in the award of a third person to whom a dispute was referred by mutual agreement for final decision.*"* Again, an affidavit averring that the amount recovered was in excess of the magistrate's jurisdiction is sufficient;*"' also an averment that the amount recovered before a magistrate is less than the amount due and was reduced to confer jurisdiction.*"* k. Actions for services. In actions for services an averment that the agreed price was less than that claimed by the plaintiff and that the wages were paid each week, is sufficient.*"" An averment that the plaintiff did not fully comply with his contract for repairing a building is specific enough if stating in detail wherein he did not make the agreed repairs.'^"" And an averment that the ordinary charge for 690 McDermott v. Woods, 147 Pa- 356. 691 Jenkinson v. Hilands, 146 Pa. 380; Diack v. Wilson, 27 W. N. C. 251- 692 Hulseman v. Griffith, 12 W. N. C. 337; Kay v. Gray, 24 Super. Ct. 536. But see Herdie v. Woodward, 75 Pa. 479. 693 Pennsylvania R. Co. v. Davenport, 154 Pa. iii. See Baugh v. Mitchell, 166 Pa. 577. 694 Hugg V. Brown, 6 Wh. 468. See also Diack v. Wilson, 27 W. N. C. 251; Dietrich v. Dietrich, 154 Pa. 92; Smith v. Hopple, 3 W. N. C. 27. 695 Hopkins v. Ludlow, i Phila. 272. 696 Bowman v. Stewart, 165 Pa. 394; Vulcanite Paving Co. v. Phila. Traction Co., 115 Pa. 280. But see Plank v. Mizell, 11 C. C. 670. 697 Murphy v. Stanley-Bradley Pub. Co., 155 Pa. 25. 698 Williams v. Shields, 2 W. N. C. 176. 699 Reichley v, Leingang, 7 C. C. 556. 700 Myers v. Faegley, 9 Lane. L- Rev. 242. 560 Common Law Practice in Pennsylvania. labor in an action therefor would be less than the plaintiff claims is sufficient;"^ so would be an averment that the services were unauthorized."^ An affidavit is insufficient in an action for shoeing horses which avers that the horses were crippled and injured, but does not aver that they were permanently injured or were rendered less val- uable,"= so is an averment that the plaintiff's charges were exces- sive without setting forth wherein they were ;'»* so is an averment that the shares of stock of a glass mill were depreciated five dol- lars a share by reason of the plaintiff's failure to complete the mill on the day named in the contract'"^ I. Actions against corporate oiKcers. In actions against corporate officers an affidavit of defense is sufficient which avers that all moneys received by the treasurer were disbursed by the rules of the corporation."" And an affi- davit is insufficient which merely avers that the plaintiff was en- gaged by the defendant as an officer of a corporation and that his claim, if he had any, was against the corporation, and not the defendant individually.^"^ tn. . Statute of limitations. An affidavit averring that the contract on its face has been com- pleted more than six years and that the defendant has made no new promise sufficiently sets up the bar of the statute of limita- tions."" If no affidavit is filed to part of a claim barred by the statute, judgment is warranted for the whole of the claim.""" And when the statute is the defense items of credit need not be denied."" 701 Sundstrom v. Smith, 20 W. N. C. 140. 7D2 VanZandt v. Winters, 22 Super. Ct. 181. 703 Weston V. Killeen, 11 C. C. 412. 704 Best V. Genseng, 9 Lane. L. ^ev. 4. 705 Berlin Iron Bridge Co. v. Bonta, 180 Pa. 448. 706 Pennsylvania Ag. Society v. Jermyn, 167 Pa. 359. 707 Paine v. Berg, 23 Super. Ct. 577 ; Third Reformed Church v. Jones, 132 Pa. 462; Gitters v. Clark, 158 Pa. 616; McCoy Lime Co. v. Kane, 16 Montg. 19. 708 Fritz V. Hathaway, 135 Pa. 274, I Vale 234. Unless the fraud has been actively concealed. Mentzer v. Pennsylvania R. Co., 11 Dist. 192. 709 Wilson V. Hayes, 18 Pa. 254. 710 Schaecterlein v. Knabe, 14 W. N. C. 404; Rowe v. Atvirater, i W. N. C. 149 ; Guillou V. Perry, i W. N. C. 39. Of Judgment by Default after Appearance. 561 n. Practice. If the affidavit be deemed insufficient, the plaintiff's counsel must move for a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense/^^ This is granted of course, but must be put in writing, and delivered to the prothonotary, who is required to file and enter it on the minutes, indorsing the time of delivery.'" The mode of giving notice to the opposite party has been already considered."' In disposing of the rule for judgment nothing is before the court except the plaintiff's statement and the defendant's affidavit."* Any step taken in the cause after filing the affidavit is a waiver of the right to move for judgment on the ground of insufficien- cy."" The courts have adopted rules for the time of calling such cases,'^® the mode of preparing the paper books used in them,'^' and of conducting the argument.'"' Of course the plaintiff can waive his right to judgment even if the affidavit be insufficient.'^" 38. If affidavit be insufficient judgment may be given, (x) When the defendant thinks the statement is insufficient to re- quire an affidavit of defense, he should suggest this on the record and have the court pass on the question.'^* An affidavit suggest- ing a technical defense must specify with precision the reason why the plaintiff is not entitled to judgment."^ What then are the requirements of the law? Since the act of May 25, 1887, requiring a copy of the contract on which the X I Vale 239, 367-391. 711 See §7. On the hearing of the rule the court may not go outside the case to consider extraneous facts, either in support of or against the line of defense. Allegheny City v. McCaffrey, 131 Pa. 137. 712 Phila. Rule 26, §5. 713 See §i4d. 714 Bernhart v. Taylor, 223 Pa. 307; Allegheny City v. McCaffrey, 131 Pa. 137; Columbia Nat. Bank v. Dunn, 207 Pa. 548; Scott Mfg. Co. V. Morgan, 217 Pa. 367. 715 Hellman v. Horn, i Kulp 13S. 716 Phila. Rule 26, §§i, 2. 717 Phila. Rule 26, §§8, 9. 718 Phila. Rule 26, §7. 719 Auburn Bolt & Nut Works v. Shultz, 6 C. C. 346. 720 Loucheim v. Maguire, 6 Super. Ct. 63s; Evans v. Cleveland, 8 Kulp 286. 721 Pollock v. Association, 3 W. N. C. 170. See Duffy v. Meill, 13 Dist. 143. 36 S62 Common I^aw Practice in Pbnnsyi^vania. action is founded to accompany the statement of claim, is impera- tive, the failure to set it forth is a sufficient cause to refuse judg- ment irrespective of the merits of the affidavit of defense.''^'' Likewise an affidavit for goods sold and delivered which avers that the copy of the book account attached to the plaintiff's claim is incorrect and specifying the inaccuracy, is sufficient to prevent summary judgment,^^' but not if its accuracy is denied in general terms.'^* Again, in an action for goods sold and delivered when the de- fendant avers in his affidavit that the goods were delivered under a written agreement, which is set forth, he cannot complain on appeal that the statement was insufficient, especially when he at- tempted to set up a defense on the merits.'^' But this ruling does not apply when the defendant is unable to attach a copy of the contract to his affidavit and makes a bona fide effort to compel its production.'^* Any material variance between a contract which is the basis of an action and the statement of the claim is fatal to a judgment for want of a sufficient affidavit of defense/^' But an affidavit is insufficient which avers a variance between the account and the copy filed.'^* Again, an affidavit is sufficient which sets forth facts sufficient to constitute a good plea in abatement,'^' for example, the mis- nomer or nonjoinder of parties,"" or defective service."^ But an affidavit is insufficient which sets up a misnomer in the prae- cipe and a variance between the praecipe and the summonsJ^^ So 722 Acme Mfg. Co. v. Reed, 181 Pa. 382. 723 Teller v. Sommer, 132 Pa. 33; Mays v. Patterson, 15 York 123; Hoffner v. Logan Square B. & L. Association, 4 Penny. 363. 724 Bakes v. Reese, 150 Pa. 44; Haynes v. Synnptt, 160 Pa. 180. 72s Genesee Paper Co. v. Bogert, 23 Super. Ct. 23. 726 White V. Sperling, 24 Super. Ct. 120. 727 Gillison V. Wanamaker, 140 Pa. 358. 728 Harrar v. Ceroney, 13. C. C. 193. 729 Gustine v. Cummings, i W. N. C. 20; Leek v. Livingston Manor Mfg. Co., 6 Lack. Jur. 52. 730 Markley v. Quay, 8 W. N. C. 145 ; Lippincott v. Hopple, 2 W. N. C. 186. But see Ashman v. Weigley, 148 Pa. 61. 731 National Bank of Northern Liberties v. American Ship Building Co., 18 W. N. C. 62; Billington v. Gautier Steel Co., g At. 35; Grubb v. Lancaster Mfg. Co., i W. N. C. 389. 732 Megargee v. Souder, 2 W. N. C. 15. Of Judgment by Defauw after Appearance. 563 is an affidavit averring that the defendant was not served when the sheriff's return shows Otherwise.''*' Under this head of technical defenses it may be mentioned that no affidavit is necessary when the statement of claim discloses two causes of action, one arising under a contract, the other under a tort.''* Lastly, in a suit on a note more than six years old an unsworn suggestion of counsel is sufficient to prevent judg- ment.'"' I 39. An affidavit as a waiver of formal defects, (y) The filing of an affidavit of defense to the merits is a waiver of any objections to formal defects or imperfections in the state- ment,"^ the defendant resting on his affidavit.'''^ And when both an affidavit of defense and demurrer are filed together, the latter will be stricken off-"* Furthermore a demurrer filed afterward should be overruled."' But when a defendant files an affidavit of defense containing matter which might have been included in a demurrer, he may withdraw his affidavit and file a demurrer.'*" And when an affidavit is in effect a demurrer and the statement sets forth no cause of action, the court will sustain a formal de- murrer subsequently filed, raising the same question contained in the affidavit of defense.'*^ 40. Notice to plead is not a waiver of right to judgment. Once a rule to plead was a waiver of the right to ask judg- ment for want of a sufficient affidavit of defense;'*^ now, the plaintiff's notice to plead, is not a waiver of his right to judgment y I Vale 373, 385. 733 Hess v. Weingartner, 5 Dist. 451. 734 Kinney v. Harrison Mfg. Co., 22 Super. Ct. 601. 735 Horter v. Wilson, 17 W. N. C. 562. 736 McGonnigle v. McGonnigle, 5 Super. Ct. 168; Felty v. National Accident Society, 139 Fed. 57. 737 Newbold v. Pennock, 154 Pa. S9i ; Louchheim v. Maguire, 6 Super. Ct. 635. 738 Pittsburgh, Cin., Chicago & St. Louis R. Co. v. Hayes, 13 Dist. 671 ; Schoenman v. Schambach, 18 York 124 ; Schneyer v. Schambach, 18 York 124. 739 Heller v. Royal Ins. Co., 151 Pa. loi ; Wagner v. Smith, 11 Dist. 662. 740 Ewald V. Coe, IS Dist. 102. 741 Paltrowitz v. Lucknow Iron & Steel Co., 32 C. C. 78. 742 Auburn Bolt & Nut Works v. Shultz, 6 C. C. 346; Fuoss v. Schleines, 15 W. N. C. 192. 564 Common Law Practice in Pbnnsyi,vania. by default for want of an affidavit.''" Nor can a judgment for want of affidavit be entered before the final disposition of a rule to show cause why the plaintiff should not enter security for costs.'** But the plaintiff may withdraw a rule before the de- fendant's plea is filed and move for judgment for want of an af- fidavit.'*^ After a plea has been filed under a rule to plead, a judgment cannot be taken for want of an affidavit.'*^ But when a plaintiff is entitled to judgment for want of an affidavit at a certain time, he may take judgment any time thereafter before the filing of the affidavit.'*' He cannot, however, take judgment for want of an affidavit pending a plea in abatement.'** What is a waiver of the right to judgment for want of an af- fidavit? By taking any step in the cause,'*° entering a rule to plead,'°° by joining issue and putting the case on the trial list,'®^ laches,"^ long delay in taking the rule for judgment,"^ reference of the case to arbitrators and an award by them.'^* And the filing of a supplemental affidavit is a waiver of any defects in granting a rule for judgment for want of a sufficient one.'^^ When a waiver is not waived in the affidavit it cannot be set up;'^« nor is the filing of an affidavit an objection to the suffi- ciency of the plaintiff's affidavit of claim.'" 743 Horner v. Horner, 145 Pa. 258; Superior Nat. Bank v. Stadel- man, 153 Pa. 634. See Joynes v. Kohler, 12 Phila. 337. 744 Haardt v. Wright, 9 Del. 399. But see Trenton Rubber Co. v. Small, 3 Super. Ct. 8. 745 Joynes v. Kohler, 12 Phila. 337. 746 Richards v. Mink, 46 L,. I. 138. 747 Slocura v. Slocum, 8 W. 367 ; Wharton v. Miller, i W. N. C. 471. 748 Hummel v. Meyers, 26 W. N. C. 279. 749 O'Neal V. Rupp, 22 Pa. 395; Johnston v. Ballentine, i W. N. C. 626. 750 Auburn Bolt & Nut Works v. Shultz, 6 C. C. 346; Hamer v. Humphreys, 2 Miles 28. But see Superior Nat. Bank v. Stadelman, 153 Pa. 634. 751 Richards v. Mink, 19 Phila. 364; Hoke v. Martin, 7 York 65; Brown v. Hadley, 3 C. C. 76. 752 Boyle v. McCafferty, 21 W. N. C. 95; Hellman v. Horn, i Kulp 138. 753 Boyle v. McCafferty, 21 W. N. C. 95; Standard Mutual Live Stock Co. V. Williamson, 10 Kulp 266. 754 Duncan v. Bell, 28 Pa. 516; Lusk v. Garrett, 6 W. & S. 89. 755 Commonwealth v. Snyder, i Super. Ct. 286. 756 Eberz v. Heisler, 12 Super. Ct. 388. 757 Mifflin v. Hanover Junction & S. R. Co., 26 P. L. J. 125. Of Judgment by Default after Appearance. 565 Lastly when a judgment is entered against the personal repre- sentatives of a decedent in default of a sufficient affidavit of de- fense within less than a year after his death, the plaintiff should show an unimpeachable record to sustain if^^ 41. Judgment for part of claim. (z) Prior to the act of 1897 ^°' the courts were' in doubt how far they could go in entering a judgment for part of a claim on a motion for judgment for want of a sufficient affidavit of de- fense.'"" Said the superior court concerning the act of May, 1893 :^°^ "It cannot enter judgment for part of the claim upon a motion for judgment for want of a sufficient affidavit of defense, no matter how insufficient the affidavit of defense may be as to such part, if it is sufficient as to any portion of the claim. "'°^ The act of 1897 provides that in all cases in which affidavits of defense may be filed to the claim of the plaintiff, and the court shall ad- judge any portion of the affidavit to be insufficient in law, the plaintiff may take judgment for that portion, and the plaintiff may collect it on execution, and proceed for the recovery of the balance. By this act judgment may be entered for the amount not cov- ered by the affidavit without waiving the right to proceed to trial for the balance.''*^ But the court cannot enter a valid judgment by making the rule absolute for the amount mentioned without previously adjudicating the portion of the affidavit deemed insuf- ficient.^°* Good practice requires the plaintiff to specify the part to which the affidavit is insufficient and to set this forth in his rule to show cause ;'*° it has been settled judgment for a part cannot be taken on a rule for judgment covering the whole z I Vale 392-398. 758 Johnson v. Smith, 158 Pa. 568. 759 July IS, P. L. 276, 3 Purd. §32, p. 3651. 760 Goodell & Co. V. Hall, 9 Dist. 178. 761 May 31, P. h. i8s, 3 Purd. §31, p. 3650; Blydenstein v. Haseltine, 140 Pa. 120. 762 Muir V. Shinn, 2 Super. Ct. 24; Jordan v. Kleinsmith, 5 Dist. 674. See also Reilly v. Daly, I59 Pa. 605. 763 Pierson v. Krause, 208 Pa. 115; Stedman v. Poterie, 139 Pa. 100; Drane v. Watson Coal Mining Co., 15 Dist. 591 ; Roberts v. Sharp, 161 Pa. 185. 764 Ibid. 765 Shea V. Wells, 8 Super. Ct. 511; Goodman v. Rile, 9 Del. 21. 566 Common Law Practice in Pennsyi^vania. claim.'*^ And when an affidavit of defense states that there is a just and legal defeijse to the plaintiff's demand, and that he does not owe more than a specified sum, but admits no indebtedness on any specific items, judgment cannot be entered for the sum men- tioned on a rule for judgment for the amount admitted to be due.''^ But when an affidavit admits a portion of the claim to be due and judgment is taken for this portion, which is paid, the plaintiff may obtain a second judgment under the act of 1893 for want of a sufficient affidavit, if this be an insufficient defense to the balance of the claim"' "The common pleas ought to see that the items which they hold to be insufficient are enumerated in the rule for judgment or specially indicated in their written ad- judication.'"" By the act of 1909,^'" in actions of assumpsit against municipal corporations when all or any part of the plaintiff's claim is ad- mitted to be due, the city solicitor shall, within thirty days after service of the writ, file an affidavit setting forth the amount ad- mitted. The plaintiff may take judgment for this amount and proceed for the recovery of the balance as in other cases. FORM OF RULE. A. B. "^ V. y C. p. No. , Term, 1912, No. CD. J And now (date), on motion of plaintiff rule on defendant to show cause why judgment should not be entered for the amount admitted to be due in the affidavit of defense filed in the above case. Rule returnable (date) 10 a. m. Indorsement. A. B. "li V. >Q. P. No. I, Term, 1912, No. CD. J 766 Faux V. Filler, 223 Pa. 568; Locher v. Sensenig, 9 Dist. 704. But see Scott v. Damascus Steel Co., 47 P. L. J. 146. If a rule of court re- quires that an affidavit of defense shall state whether it. is to the whole or part of the plaintiff's claim, an averment that the defendant has a legal defense to the claim made by the plaintiff does not comply with the rule. Swingle v. Itzel, i6 Dist. 339. 777 Goodell & Co. V. Hall, 9 Dist. 178. 778 Liiidermeyer v. Hertgen, 14 Dist. 394. 779 Law V. Waldron, 230 Pa. 458, 467. 780 May 3. P- L. 394, 5 Purd. §S, p. 5848. Of Judgment by Default after Appearance. 567 Rule for judgment for amount admitted in the affidavit of defense. E. F., pro plff. 42. Judgment is final, (aa) A plaintiff can have judgment for want of an affidavit of de- fense for the reasons specified in the statute.''"^ A judgment for want of an affidavit of defense is final, not interlocutoi-y, though damages have not been assessed.'*^ Judgment cannot be enter- ed for a larger sum than that claimed by the plaintiff in his state- ment, notwithstanding a larger sum may be due at the time of entering it.'*' In order to obtain it all the essential ingredients of a complete cause of action must be set forth clearly and con- cisely in the statement.''* When, however, the statement sets forth a good cause of action though in an informal manner an affidavit is required.'*" Judgment for want of an affidavit will not be given when the pleadings present an involved or doubtful issue;'** nor when the suit has been prematurely brought.'*' Judgment may be given for want of an affidavit of defense, though there be neither appearance nor declaration;'** but two returns of nihil do not authorize such a judgment; the plaintiff should, in such case, take judgment for want of an appearance.'*® Judgment may be entered for want of an affidavit, though the suit be commenced by capias, and the defendant have not put in special bail."" By taking any step in the cause, however, the plaintiff waives his right to move for judgment;"^ he cannot aa I Vale 308. 781 Feist V. Prince, I Leg. Chron. 135; McClung v. Murphy, 2 Miles 177. 782 DeHart v. Schaeffer, i Wood. 365. 783 Philadelphia v: Pierson, 211 Pa. 388. 784 Acme Mfg. Co. v. Reed, 181 Pa. 382; Hibbard v. Mullen, 14 Dist. 419; Reynolds v. Wood Fibre Co., 19 C. C. 318; Frederick v. Anderson, 22 W. N. C. 524. 78s Smith V. Smith, 166 Pa. 553, Dig. 308. 786 Dickson v. Shaw, 2 Miles 262. 787 Thomas v. Shoemaker, 6 W. & S. 179- 788 Clark V. Dotter, 54 Pa. 215. 789 Miner v. Graham, 24 Pa. 491. 790 Barbe v. Davis, i Miles 118. 791 O'Neal V. Rupp, 22 Pa. 395; Johnston v. Ballentine, i W. N. C. 626. Filing a declaration with the copy, is not a waiver of the affidavit of defense. Brobston v. Campbell, 5 W. N. C. 273. And the plaintiff 568 Common Law Practice in Pennsyi^vania. have such judgment, after an arbitration and appeal from an award/'^ Nor can such judgment be entered, when the plain- tiff was dead, at the impetration of the writ, and the record was not amended until after the day for judgment."^ The pro- priety of the discontinuance of a former suit before a justice cannot be inquired into, on a motion for judgment.'^"* 43. Evasive a£Bdavit.(bb) An affidavit must not be evasive-''^ Says Justice Clark "The affidavit to be effective must disclose a state of facts sufficient to exhibit the elements of a substantial defense ; the facts should not be set forth in any equivocal or evasive manner, but with reason- able precision, so that the plaintiff may be accurately advised of the true nature of the defense, if any exists."^** The averments must be construed most favorably for the plaintiff, and in consid- ering them the question is, do they disclose a valid defense, par- tial or complete, with sufficient perversion to advise the plaintiff of its nature.'^' In applying this rule an affidavit is regarded as defective and evasive which alleges a defect of written or re- corded evidence of title rather than an averment of a defect of title ;'°* also an affidavit in a suit for labor which demands the production of books, the affiant knowing that the plaintiff's claim does not rest on a book account ;'"' also an allegation in an affi- davit of payment of all arrearages on a mutual policy of fire insurance which does not set forth how it was paid, what sum, or to what agent;*"" also an affidavit that it is untrue that the plaintiff has duly paid all premiums and in all respects complied may withdraw a rule to plead, before plea filed, and move for judgment for want of an affidavit. Jones v. Kohler, 35 L. I. 396. bb I Vale 180-201. 792 Lusk V. Garrett, 6 W. & S. 89. 793 Lynch v. Kerns, 32 L. I. 116. 794 Lancaster Bank v. McCall, 2 Clark 498. 795 Snyder v. Knight, 23 Super. Ct. 309; Connor v. Schildt, 16 Super. Ct. 88; Singer v. Caldwell, 7 Dist. 583; Weiss v. Marks, 11 Dist. 759; Meyer v. Phillip, 23 York 81 ; Jenkinson v. Hilands, 146 Pa. 380. 796 Noble V. Kreuzkamp, in Pa. 68, 70. 797 Exeter Machine Works v. Ritter, 4 Dist. 474; Boomer v. Henry, 2 Dist. 357; Kemp v. Kemp, i Wood. 154; Hinckley v. Shope, 2 Pears. 17; Marsh v. Marshall, 53 Pa. 396. 798 Singer v. Caldwell, 7 Dist. 583. 799 Coburn v. Reynolds, 3 Dist, 475. 800 Solly V. Moore, I Dist. 688. Of Judgment by Default after Appearance. 569 with the conditions of the policy.*"^ In a suit for the price of flour an allegation in the affidavit that it was of bad quality caus- ing a loss of a stated sum, with no particulars, is "vague and evasive."^"^ An affidavit is also insufficient which denies the correctness of the damages claimed in vague and evasive lan- guage. In all such cases the nature of the damages should be clearly and fully stated-*"^ Likewise in a demand for payment, an averment in an affidavit "of a vague, uncertain nature, cannot be permitted to prevent the prompt recovery by the plaintiff of what the defendant himself concedes that he must sometime pay.*"* Likewise in a suit for goods sold and delivered that had been bought by sample an averment in the affidavit that they were not equal to the sample, but greatly and consequently unsalable at a profitable price, was too indefinite and evasive.'"^ Likewise in a suit on a stock subscription, an affidavit which admitted the signature to the subscription paper, but denied that the defendant filled out the number of shares, is evasive.'"" An averment that the claim is in excess of the agreed amount should also state the exact amount admitted to be due.'"^ An affidavit that work was to be done with the approval of a city engineer which avers that the defendant has been unable to find any record of approval, is evasive.*"* Likewise an affidavit is evasive which does not deny the indebtedness, but alleges that from the statement the defend- ant is not indebted to the plaintiff.*"" More generally an affidavit should state the facts specifically and with sufficient detail to en- 801 Hendel v. Reverting Fund Assurance Association, 2 Dist. 116. 802 Marshall, Kennedy & Co. v. Aber, i Dist. 770. 803 McBrier v. Marshall, 126 Pa. 390; Roberts & Co. v. Andrews & Co., IS Super. Ct. 305, affg. 23 C. C. 99; Humeston Co. v. Altenberg, 18 Dist. 696; Haldy v. Deichler, 16 Dist. 711, 713; Killen v. Brown, 6 Super. Ct. IS ; Higel v. Quinnlan, i W. N. C. 83. Unless a statement in assump- sit shows amounts by which a judgment can be liquidated without a writ of inquiry, a rule for judgment for want of a sufficient affidavit of de- fense will be discharged. Creighton v. National Safe Co., 10 Dist. 600. 804 Kohn V. Raflo, 19 Dist. 288, 290; Gaunt v. Considine, 18 Dist. 394. 805 Wile v. Onsel, i Dist. 187. See also Hess v. Schwartz Sons, 20 Dist. 105. 806 Columbus Land Co. v. McNally, 172 Pa. 158. 807 Griel v. Buckius, 114 Pa. 187. 808 Erie City v. Butler, 120 Pa. 374. 809 Keim v. Coughlin, i Leg. Rec. 80. 570 Common Law Practice in Pennsylvania. able the court to say whether or not they amount to a defense.*" Lastly, when the statement of the claim is in proper form and the affidavit is insufficient and evasive, the court will entertain a rule for judgment and make it absolute, even without any rule of court regulating the time and mode of taking judgment.*^^ 44. Supplemental affidavit, (cc) If the court deem the defense to be probably good, but defec- tively stated, a ■ supplemental affidavit may be filed ;'^^ and, in- deed, the court has no right to disregard a supplemental affidavit, though filed after a rule for judgment.'" Where, however, a supplemental affidavit is ordered, and none is filed, judgment on the original affidavit is not of course ; the case may be called up, on any motion day, after the deferred list, giving forty-eight hours' notice to the other side, when the court will re-examine the original affidavit and decide accordingly; the defendant has a right to rest his case on the original affidavit, and no inference ought to be made against him on that account.*'* If the paper termed an affidavit of defense be frivolous, upon its face, the court will give judgment, without a rule to show cause.*'^ If it merely set up a misnomer, the plaintiff may have leave to amend at bar, and then take judgment;*'* so, of a mistake in the de- cc I Vale 408. 810 Superior Nat Bank v. Stadelman, 153 Pa. 634; Kohn v. Raflo, 19 Dist. i288, 290; Marshall, Kennedy & Co. v. Aber, i Dist. 770; Sofranscy V. Fowler Waste Mfg. Co., 14 Dist. 336. See cases in note 803. 811 Sharpless v. Stirman, 4 Dist. 569. 812 I/oeper v. Haas, 24 Super. Ct. 184. "The extent of indulgence by a court below in allowing supplemental affidavits of defense to be filed is largely in its discretion. Andrews v. Blue Ridge Packing Co., 206 Pa. 370; but this indulgence is not to be extended after a case has been finally heard and passed upon by the appellate court except for legal or equitable reasons, of which the defendant could not hare availed himself when his original affidavit of defense was filed." Brown, J., Wood v. Kerkeslager, 227 Pa. 536, S40. 813 West V. Simmons, 2 Wh. 261; Bloomer v. Reed, 22 Pa. 51. The ' court will not notice a supplemental affidavit, filed after judgment. Stern V. Probst, 2 P. L. J. 48. 814 Hill V. Gaw^ 4 Pa. 495. On a motion for judgment, the affidavit cannot be contradicted, even by matter of record. Feust v. Fell, 6 W. N. C. 43. 815 Taylor v. Nyce, 3 W. N. C. 433- 816 Gustine v. Cummings, i W. N. C. 105. Of Judgment by Default after Appearance. 571 fendant's firm name f" or, of an omission to name the particular partners composing the firm.'^* So, if the affidavit allege that the note sued upon is the renewal of a former one, which has not been surrendered, judgment may be given, on a surrender there- of at bar.*" If the affidavit admit a certain amount to be due, and take defense as to the residue, the plaintiff may take judg- ment for such sum ; but to enable him to do so, a certain amount must be distinctly admitted to be due;*-" in such case he cannot, after a voluntary payment thereof, proceed for the balance of his claim.*^^ Where, however, an affidavit of defense is filed to one of several items of a book account, the plaintiff may have leave to withdraw such item, without prejudice, and take judg- ment for the amount of the undisputed items.*"^ And the plain- tiff may take judgment for want of an affidavit, or for want of a sufficient affidavit,^-^ against one of several defendants, and pro- ceed to trial against the others.*^* If the court refuse judgment, an exception and writ of error lies to their decision;'^' but, in such case, the supreme court will not reverse, except for a clear mistake of law.*^* The affidavit will not serve as a notice of spe- cial matter, where one is required by the rules of law;*" but it may be read in evidence on the trial, as an admission of the facts therein stated ; it is not in the nature of a plea.*^* This, however, 817 Megargee v. Souder, 2 W. N. C. 15. 818 Bold V. Harrison, i W. N. C. 154; Lippincott v. Hopple, 2 W. N. C. 186. The old cases to the contrary are overruled. If the affidavit set up the omission of a co-contractor, jointly liable, the court may amend the record, by inserting such person's name; but judgment can- not be entered, until after the return of process against him. Dusen- berry v. Bradley, 6 W. N. C. 413. 819 Henry v. Musselman, 4 W. N. C. 429. 820 Kuhnle v. McKeever, i W. N. C. 19. The court will not, how- ever, give judgment for an amount admitted to be due in another trans- action. Rand v. Lore, 5 Ibid. 236. 821 Brazier v. Banning, 20 Pa. 345; Bradford v. Bradford, I Clark 388. 822 Johnson v. Bazin, 4 W. N. C. 171. See Richards v. Bisler, 3 W. N. C. 48s- 823 Bean v. Seyfert, 34 L. I. 338. 824 Act 4 April, 1877, P. L. S2, 2 Purd. §12, p. 2040. 825 Act 18 April, 1874, P. L. 64, 2 Purd. §11, p. 1436. 826 Griffith V. Sitgreaves, 2 W. N. C. 707. 827 Sullivan v. Johns, s Wh. 366; Erwin v. Leibert, s W. & S. 103; Simmons v. West, 2 Miles 196. And see Finlay v. Stewart, 56 Pa. 183. 828 Bowen v. De I County. Richard Jones J No. , Term, 1912. To , Esq., Prothonotary : Now, Aug. 20, 1912, defendant craves oyer of the bond and condition (or deed, as the case may be) . Peter Force, Defendant's Attorney. I. Of Oyer. 2. Profert.(b) Where the plaintiff, in his declaration, necessarily makes a profert in curiam (which is an allegation by a party, who states a deed in pleading, that he brings it into court) ^ of any deed, writing, letters of administration, or the like, the defendant may crave oyer; that is, may pray or request that he may hear the deed read to him (which is done by directing the prothonotary, in writing, so to enter the request on his docket, and giving notice b 7 Vale 21335. 1 For a history and explanation of the doctrine of venue, see Stephen on Pleading 324 (Am. Ed. 1894). Also Oliphant v. Smith, 3 P. & W. 180. 2 L,awes PI. 77. Proceeding Between Statement and Plea. 631 of it), and it is accordingly supposed to be read in court ;^ but, in practice, oyer is usually given by delivering a copy of the deed. But profert ought only to be made of a deed or grant of admin- istration, and oyer cannot be demanded of a private statute, even wrhere profert is made of it ;* nor of a record stated in the pleadings.* The entry on the docket of the demand of oyer, is, it is apprehended, only to enable the party to plead a short plea ; for instance, in an action on a bond, if it be wished to plead per- formance of the condition, an entry may be made on the docket in these words: — "Defendant craves oyer of bond and condi- tion," — the instantaneous effect of which entry is fictione legis, to spread the bond and its condition upon the record; the de- fendant has, therefore, merely to plead, in short, "performance," when the record is thus far complete. But, by thus craving oyer, the defendant precludes himself from excepting to any variance, on the trial, between the bond and declaration,* although he do not choose to avail himself of the oyer. A demurrer lies on the plaintiff's failure to make profert of such deeds as he is presumed to have in a suit or lack of ex- planation to have them.'' And when profert of an instrument in writing is made and oyer is not craved, the court will look to the statement for the terms of the writing.^ Again, when the de- fendant unlawfully detains the specialty which is the subject of the suit, profert is not necessary.' The objection that there is a variance between the writ and statement is purely technical, and the court will refuse oyer of the writ and thus preclude inquiry into the variance.^" And if an insurance company pleads to the statement without craving oyer of the application which is a part of the policy or without notifying the plaintiff to produce it, the policy can be given in 3 3 Salk. 119, pi. 2, 5. 4 Zion Church v. St. Peter's Church, S W. & S. 215. 5 Noble V. Thompson Oil Co., 79 Pa. 354- 6 Douglass V. Beam, 2 Binn. 76. Though profert be made, yet, unless oyer be prayed, the deed does not become part of the record. Bender v. Fromberger, 4 Dall. 436; Mansley v. Smith, 6 Phila. 223. 7 Provident L. & T. Co. v. Loftus, 24 W. N. C. 236. 8 Harley v. Lebanon Mutual Ins. Co., 120 Pa. 182. 9 Smith V. Smith, 35 Super. Ct. 323. ID Peutz V. Peutz, 6 Dist. 708 ; Haycock v. Thatcher, i Del. 125 ; Over- seers V. Bunn, 12 S. & R. 295; Krause v. Pennsylvania R. Co., 4 C. C. 60; Hitz V. Johnson, 8 Lane. L. Rev. 317. 632 Common Law Practice in Pi;NNSYi,VANiA. evidence without the application.^^ A copy of a recorded instru- ment is insufficient on demand of oyer and inability to produce the original. ^^ On appeal from a justice the defendant is not entitled to oyer of the writ to entitle him to plead in abatement.^* Nor is the defendant in a covenant on a lease entitled to oyer of the original instrument." Furthermore, the plea of covenants performed is a waiver of oyer.^° 3. When oyer may be demanded. In a suit by an administrator, profert of his letters is essen- tial; otherwise, the declaration is demurrable;^* but the want of profert of letters of administration can only be taken advantage of by special demurrer.^' Profert of a deed is unnecessary, where it is stated only as inducement, and the plaintiflF is neither a party nor privy to it.'* It is, however, no excuse for an omis- sion to make profert, that the deed had been delivered to a third person for the benefit of the parties.^* But profert is unneces- sary of a guardian's bond, which is not in the custody of the plaintiff, but is filed in the orphans' court, in trust for all per- sons interested.^* A general profert of letters testamentary is sufficient; if the defendant would object to their sufficiency, he must crave oyer ;^^ and where profert is made of a bond, and the declaration goes on to state the condition and assign a breach, it is not necessary to make a separate profert of the condition, for the whole bond is already before the court.^^ 4. How made. A party bound to give oyer of a deed, must furnish not only a true copy of the instrument itself, but of all indorsements and 11 Insurance Co. v. Staib, I Walk. 361. 12 Dunbar v. Juniper, 2 Yeates 74. 13 Hinckley v. Smith, 4 W. 433. 14 Frick V. Hugle, i C. C. 572. 15 Little V. Henderson, 2 Yeates 295. 16 McDonald v. Browning, 4 Phila. 21. 17 Allison V. Wilkin, i Wend. 153. 18 Duvall V. Craig, 2 Wheat. 45. 19 Wheeler v. Miller, 2 Den. 172. 20 Commonwealth v. Pray, i Phila. 58. And see Rockhill v. Hanna, 4 McLean 200. 21 Childress v. Emory, 8 Wheat. 642. 22 United States v. Spalding, 2 Mason 478. Proceeding Between Statement and Plea. 633 memoranda upon it, and of papers attached to it ; so that his ad- versary may have the same view of the matter, as if the deed had been brought into court/^ And if the plaintiff make profert of the bond on which the plaintiff has declared, and also of a collateral agreement, necessary to establish his right to recover on the bond, the defendant is entitled to oyer both of the bond and agreement.^* 5. Practice on prayer o£ oyer. Oyer is demandable in all actions, real, personal and mixed. It is said to have been formerly demandable not only of deeds, but of records alleged in pleading; and can be had only in the cases of deeds, probates and letters of administration, &c., of which profert is made on the other side. Of private writings, not under seal, oyer has never been demandable f^ but where an action is founded on a written instrument, not under seal, though the defendant cannot pray oyer, yet the court will, in some cases, make an order for delivery of a copy of it to the defendant, or his attorney, and that all proceedings, in the meantime, be stayed. ^'^ It seems, that oyer is not demandable of a private statute;-^ nor of letters-patent;-* nor of a recognizance;^' but it is demandable of a deed enrolled, or of the exemplification of the enrollment, according to the terms of the profert.^" 6. When oyer should be made. Oyer can be demanded only where a profert is made.^^ In all cases where profert is necessary, and where it is also, in fact, made, the opposite party has a right, if he pleases, to demand 2Z Van Rensselaer v. Poucher, 24 Wend. 316. 24 Hammer v. Klein, i Bond Spo. 25 Steph. on Plead, (9th Am. Ed.) 69. 26 Tidd 591- 27 Zion Church v. Si. Peter's Church, 5 W. & S. 217; Jeflfery v. White, 2 Doug. 459; Pitt v. Knight, i Saund. 96. 28 Zion Church v. St. Peter's Church, 5 W. & S. 217; Smith v. Ely, 5 McLean 76; Rex v. Amery, I T. R. 149; Pitt v. Knight, i Saund. 96. 29 I Arch. Pr. 164. 30 Ibid. 31 Van Rensselaer v. Saunders, 2 How. Pr. 250; Campbell v. Strong, Pemp. 265; Mason v. Lawrason, i Cr. C. C. 190. 634 Common Law Peactice in Pennsylvania. oyer;^2 but if it be unnecessarily made, this does not entitle to oyer ; and so, if profert be omitted where it ought to have been made, the adversary cannot have oyer, but must demur.'' A party having a right to demand oyer, is yet not obliged, in all cases, to exercise that right ; nor is he obliged, in all cases, after demanding it, to notice it in the pleading that he afterwards files or delivers;'* sometimes, however, he is obliged to do both; as, where he has occasion to found his answer upon any matter con- tained in the deed of which profert is made, and not set forth by his adversary ;'° in these cases, the only admissible method of making such matter appear to the court, is to demand oyer, and from the copy given, set forth the whole deed verbatim in his pleading.'* The defendant may file a copy of the deed, and demur;" this is the proper mode of taking advantage of a var- iance between the condition of a bond, as stated in the declara- tion, and as set forth on oyer.'* If the plaintiff declare upon the penal part of a bond, and the defendant mean to plead perform- ance of the condition, he must bring it upon the record by crav- ing oyer of the bond and its condition;'* and if the defendant, in his plea, necessarily make profert of a deed, the plaintiif is, in like manner, entitled to crave oyer.*" 32 Oyer must precede the matter of defense, whether by plea or de- murrer; and, regularly, it should precede the entry of imparlance. Dufau V. Wright, 25 Wend. 636. After issue joined, oyer will not be granted. Grahame v. Cooke, i Cr. C. C. 116. A plea of covenants per- formed, is a waiver of oyer. Litle v. Henderson, 2 Yeates 295. 33 Steph. Plead. (3d. ed.) 69. If oyer be improperly demanded, the objection must be made by special demurrer. Sneed v. Wister, 8 Wheat. 690. 34 The defendant cannot avail himself of oyer, unless h'e set it forth in his plea. Allen v. Bishop, 25 Wend. 414. 35 A plea of performance of the condition of a bond, without oyer, is bad, on demurrer. United States v. Arthur, 5 Cr. 257. 36 Where the defendant craves oyer of a bond, and pleads payment, it is considered as spread upon the record. Douglass v. Beam, 2 Binn. ^(>. 37 Roberts v. Dobins, 3 W. N. C. 494. 38 Douglass V. Rathbone, s Hill 143. 39 Burkholder v. Lapp, 31 Pa. 322. 40 6 Mod. 122. It seems, that if the defendant do not give oyer, when demanded, the plaintiff may treat his plea as a nullity, and enter a default. Field V. Goodman, 4 Wend. 214. Proceeding Between Statement and Plea. 635 7. What defendant may do when oyer varies from the instrument. The demand of oyer is a kind of plea,*^ and should regularly be made in writing, before the time for pleading has expired;*^ for, if made afterwards, the demand is a nullity, and the other party may sign judgment.*^ If the plaintiff will not give oyer, when demanded, he may counterplead or demur to the defend- ant's prayer, and the court will give judgment thereupon. If the court deny oyer when it ought to be granted, it is error, and a writ of error lies upon their judgment; but it is no error, to grant oyer where it ought not to be.** There is no settled time prescribed for the plaintiff to give oyer; but the defendant has the same time to plead, after the delivery of oyer, as he had when he demanded it;*° therefore, it is generally the plaintiff's interest to grant it without delay.*® The time allowed the defendant to give oyer to the plaintiff', is, according to the practice of the Eng- lish courts, two days, which we are both reckoned exclusive;*^ and if it be not given in that time, the plaintiff may sign judg- ment, as for want of a plea.*' Where there is a demand of oyer on the part of the defendant, the plaintiff cannot move for judg- ment for want of a plea ; the proper practice is, to enter up judg- ment, and put the defendant to his motion to strike it off.*° When the oyer varies from the instrument declared on, the defendant may set it forth in his plea, and demur; or, he may, without setting it forth, plead non est factum, and avail himself of the variance on the trial.^" In debt on an award, if the award set forth in the declaration vary from that given on oyer, the defendant must demur specially; he cannot take advantage of the variance, on the plea of "no award."^^ If one party de- c 7 Vale 21308, 21395. 41 3 Salk. 119, pi. 4. 42 Tidd s88. 43 Ibid. 44 I Saund. 9 b; 2 Ibid. 46, note 7; 2 Salk. 498. 45 Read v. Patterson, 14 Johns. 328 ; Mulholland v. Van Fine, 8 Cow. 132; Warren v. Cammack, 7 Halst. 178. 46 2 Arch. Pr. 195. 47 Page V. Divine, 2 T. R. 40. 48 See Frey v. Wells, 4 Yeates SoS- 49 Philadelphia v. Donahue, i W. N. C. 160. so Ehle V. Purdy, 6 Wend. 629. 51 James v. Walruth, 8 Johns. 410. See Jansen v. Ostrander, i Cow. 670. 636 Common Law Practici; in Pennsylvania. fectively set forth a deed, the other may crave oyer of it, set forth the whole, and then demur.^^ And, it seems, that a trifling variance between the oyer of a bond and the declaration, is im- material.^^ II. Of Bills of Particulars. 8. When it may be demanded, (c) If the plaintiff's declaration be not suficiently explicit in dis- closing the particulars of the demand, it is the right of the de- fendant to call upon his adversary to furnish a bill of particu- lars ;°* this is peculiarly proper in actions of assumpsit, or debt, for goods sold and delivered, for work and labor done, &c., since, from the general manner in which the plaintiff is allowed to de- clare, the defendant cannot be appraised of the items which con- stitute the demand. But a bill of particulars is only demandable of right when the action is based on a specific contract."* A bill of particulars will not be ordered when the items of damage are peculiarly within the defendant's own knowledge."' When, therefore, may it be demanded? To show the rate in a suit for wages f also under a special plea of set-off if the items are not set forth with clearness of detail,"* but a rule of court re- quiring a bill of particulars of a set-off will not be enforced against the representatives of the estate of a decedent in a suit on the decedent's contract."^ A bill of particulars will also be ordered in an action against a bailee for hire brought for the loss of goods entrusted to him;^" also in an action of tort" if the statement be not sufficiently specific."^ But in such an action 52 Hobson V. McArthur, 3 McLean 241. 53 Henry v. Brown, 19 Johns. 49. See Dunbar v. Jumper, 2 Yeates 74. 54 McCarney v. McCamm, 2 Bro. 47; Pitts, v. Pitts. R. Co., 234 Pa. 223. 55 St. Mary's Borough v. Costello, 20 Dist. 777, 778. 56 Heft V. Jones, 9 W. N. C.,S4i. 57 Kuppinger v. Johnson, 13 W. N. C. 372. 58 Reed v. Church, 7 W. N. C. 79. 59 Lewis V. Keck, 9 North. 345. 60 Carr v. Heacock, 12 W. N. C. 305. 61 Borda v. Phila. & Reading R. Co., i W. N. C. 314; Furbush v. Phillips, 2 W. N. C. 198; Smith v. Lehigh Valley R. C, 18 Dist. 801. 62 Krauskopf v. Stern, 21 W. N. C. 185; O'Connell v. Citizens' Pass. R. Co., 2 C. C. 312; Glaser v. Lewis, 14 W. N. C. 228; Flisher v. Allen, 21 W. N. C. 509. Proceeding Between Statement and Pi,ea. 637 the court will not order a bill of particulars in an action to re- cover purely unliquidated damages.*^ Again, in an action ex delicto for negligence the plaintiff will not be required to furnish particulars of the damages where the statement is general.'* Indeed, while the allowance of a bill of particulars in an action for trespass is within the discretion of the court,*' the practise .is unusual and should not be encouraged ; for a demurrer is the proper remedy in such a case whenever the statement of the claim is not sufficiently specific."* Likewise in slander a bill of particulars will not be ordered unless required for the defendant's protection;*^ nor in libel against a mercantile agency.** But the plaintiff's right in an action of trespass for libel under a rule of court to call for a bill of particulars of the defendant's defense, when he pleads not guilty, is not taken away by the procedure act of 1887.*^ Likewise if the statement of a claim under this act is sustained on demurrer, the defendant may be still entitled to his bill of particulars.'* On the other hand in an action of trespass for disposing of property to defraud creditors, the plaintiff may be required to furnish particulars of the prop- erty;'^ and if the action relates to the collection and division of water, the plaintiff may be required to file a bill of particulars specifying by what means this was done;'^ and if the action be special damages through loss of trade and business and has been otherwise specially injured and damnified the defendant is en- titled to a bill of particulars.'* In an action of ejectment in which the defendant's answer is in effect both an answer and an abstract of title, but is not spe- cific, a rule by the plaintiff for a bill of particulars will be re- 63 Peters v. Philadelphia, 12 W. N. C. Si. 64 Benz V. South Bethlehem, 5 North. 381. 65 Badman v. Pennsylvania R. Co., 17 Dist. 983. See Hughes v. Snee, 9 Dist. 526. 66 Smith v. Lehigh Valley R. Co., 18 Dist. 801 ; Glaser v. Lewis, 14 W. N. C. 228. 67 Doan V. Sellers, 2 Chester 172; Thatcher v. Schaeflfer, 19 W. N. C. 566. 68 See Weil v. Dunn, 2 C. C. 72. 69 Stell V. Moyer, 9 Dist. 516- 70 Fishburn v. New York Central Railroad, 13 Dist. 608. 71 Harding v. Bunnell, 14 C. C. 417. 72 Tiffany v. Nicholson Borough, 11 Dist. 601. 73 Fritchey v. York Pub. Co., 17 York 80. 638 Common Law Practice in Pennsylvania. fused. The rule however, should be treated as one for a more specific answer, or in the nature of a demurrer, and the defend- ant may be required to file within a fixed time a more specific answer.'* g. Time for demanding. The general rule, that a bill of particulars must be demanded before the joining of the issue, yet the granting of the motion is wholly "a matter of discretion with the court."^^ The usual form of a demand for a! bill of particulars is, in short — "Please furnish a bill of particulars of the plaintiflf's demand, under the common counts" (or, as the case may be) : and it operates as a stay of proceedings, until complied with. If insufficient, the plaintiff may be ruled to furnish a more specific one.^^ And if the plaintiff be conscious that his bill of particulars does not dis- close his entire cause of action, he may, on application and notice, have leave to amend, by furnishing a more specific claim :'^ an insufficient amendment will not be allowed.'* A bill of particulars should be as precise as a special d^clara^ tion, and is insufficient, if it fail to disclose the gist of the plain- tiff's action.^' It should state the transaction with sufficient ex- plicitness, to inform the defendant of the claim he is to meet.'" If the claim be for professional services, the bill of particulars must state their nature and character;*^ it ought not to be a mere echo of the common counts f^ the claim is susceptible of descriptive particulars.*' It may state the same claim to have 74 Phelan v. Baltimore & Ohio R. Co., 14 Dist. 634. 75 Kohn v. Clark, 20 Dist. 90; Marcus v. Boling, 5 W. N. C. 542. 76 Hunter v. Burnham, i W. N. C. 74 ; Titus v. Baird, i W. N. C. 81 ; Winpenny v. Winpenny, i W. N. C. 90; O'Connell v. Summers, S W. N. C. 149- 77 Wager v. Chew, 15 Pa. 323; see also ante §11; Bowen V. Bleim, i W. N. C. 331 ; PliilHps v. Negus, 2 W. N. C. 508. A second bill of particulars not delivered under a judge's order, has been held, in England, not to cure a defect in a previous one. Brovi^n v. Watts, i Taunt. 353- 78 Hartzell v. Seybert, Dist. Court, Phila., 1848. 79 Gilpin V. Howell, S Pa. 41. 80 Patterson v. Jones, i W. N. C. 153. 81 Cumraings v. Thomas, i W. N. C. 311; Williams v. Huidekoper, I W. N. C. 376. 82 Hartzell v. Seybert, Dist. Court, Phila., 11 March, 1848. MS. 83 Sargent v. Gilbert, Dist. Court, Phila., 30 March, 1850. MS. Proceeding Between Statement and Plea. 639 arisen in several ways, in the alternative, in the same manner as the different counts of a statement.'* In an action for fees earned, a bill of particulars, containing abbreviations, was held sufficient.*^ On a bill of particulars, stating items, of various dates, of "money advanced by plaintiff to defendant," the plain- tiff will be restricted to proof of a technical loan of money.'" And a bill commencing with a "balance from former account," is insufficient.'^ Under leave to amend a bill of particulars, a new cause of action cannot be introduced." 10. Requirements. A bill of particulars ought to set out specifically what is claimed, though a cause of action need not be shown;'' but one with a single date for materials furnished and work done as per contract is sufficient."" Whenever dates are essential the de- fendant should take a rule for a more specific bill of particulars when they are omitted.'^ Such a bill may be required in an action by a mechanic for work and materials f^ for professional services as an attorney;®' by a physician for medical attend- ance;"* in an action against a bank for paying forged checks," or for "a balance of deposits.""" A bill of particulars setting forth dates and amounts of "money advanced is sufficient on the common counts for money had and received ;" likewise when a railroad is sued for discrimination a bill of particulars is suf- ficient which gives a long list of those in whose favor the com- pany discriminated." 84 Howell V. Gilpin, Dist. Court, Phila., 20 May, 1848. MS. 85 Harris v. Christian, lo Pa. 233. 86 Stineman v. Slaymaker, i W. N. C. 132. 87 Buckner v. Meredith, i Brewst. 306. 88 Spencer v. Tams, Dist. Court, Phila., 24 June, 1848. MS. Wager v. Chew, IS Pa. 323. 89 Stead V. Kehrman, 16 Phila. 79. go Johnson v. Cummiskey, 8 W. N. C. 356. 91 Rohrback v. Heckman, 12 Super. Ct. 64; Graham v. Graham, i W. N. C. 416; Livingston v. Enochs, 2 W. N. C. 244. 92 Nichols V. Edwards, 8 W. N. C. 47°. See Murphy v. Cappean, 147 Pa. 45. 93 Newlin v. Armstrong, 8 W. N. C. 255. 94 Van Bibber v. Merritt, 12 W. N. C. 272. 95 United Fire Ins. Co. v. Peoples' Bank, 12 W. N C. 251. 96 Carr v. Keystone Bank, 15 W. N. C. 518. 97 Steinman v. Slaymaker, I W. N. C. 132 q8 Crew v. Pennsylvania R. Co., i Dist. 8i; 640 Common Law Practice in Pennsylvania. 11. May be amended. A bill may be amended saving the right of the opposite party to plead surprise. The admission of evidence as if an amend- ment had been allowed will not cure an error in refusing an amendment, as the other party could not have allowed his right of continuance.^"" The remedy for defects in a bill of particu- lars is by motion for a more specific bill, and not a motion for a non-suit."^ A rule for a more specific bill after a plea has been filed will be discharged.^"^ After the allowance of an amended bill of particulars, the original bill is not evidence against the plaintiff."' 12. When a bill becomes a part of a claim, A bill of particulars annexed to a municipal claim becomes a part of it.^"* A petition for particulars of "matters proposed to be proved" should be refused because it calls for the evidence, but a request "for specific matters which will attempted to be proved," is proper.^"^ A proper demand for a bill must be shown,^"^ and when it is the plaintiff is liable to suffer a non- suit if he refuses to file it.^"^ On a bill of particulars stating items of various dates of "money advanced by plaintiff to de- fendant," the plaintiff will be restricted to proof of a technical loan of money.^"* More generally matters not suggested in the plea or bill of particulars cannot be proved in defense.^"" And when he claims under the common counts he is limited to the demand set out in the bill of particulars.^^" The plaintiff may show that a particular payment was appropriated to a prioi debt not included in the bill of particulars. ^^^ 100 Todd V. Quaker City Mutual Fire Ins. Co., 9 Super. Ct. 371. See §9. loi Rohrbach v. Heckman, 12 Super. Ct. 64. 102 Shoe Co. V. Chaid, 15 W. N. C. 356. 103 Hartzell v. Seybert, Dist. Ct., Phila., 25 March, 1848. 104 Wilvurt V. Sunbury Borough, 81 Pa.* 57. IDS Commonwealth v. Zuern, 16 Super. Ct. 588. 106 Linderman v. Land Co., 15 W. N. C. 192. 107 Kitchen v. National Life Ins. Co., 15 W. N. C. 548. 108 Steinman v. Slaymaker, i W. N. C. 132. 109 Sprowls V. McCloud, 6 At. 920. no Dilzer v. Beethoven Building Association, 103 Pa. 86. Ill Wilson V. Deacon, 9 W. N. C. 47. Peoceeding Between Statement and PeEa. 641 13. Variance between bill and evidence. After the plaintiff's case is closed the defendant cannot object to a material variance between the bill of particulars and the evi- dence, but he may move to strike out the testimony which is not applicable to the bill of particulars, he cannot claim a non-suit ;^^^ a verdict also cures a variance between the bill and the evi- denced'^ A bill of particulars also cures a statement which did not allege delivery when the bill was a sworn copy of the books which imported a delivery."* Lastly a rule on a libellant to fur- nish a bill of particulars is stayed by a subsequent rule on the respondent to pay the libellant's counsel fees. Until there is a compliance with the latter rule, a non pros for want of a bill of particulars cannot be entered."^ 14. Effect of bill. At the trial, the particulars of the plaintiff's demand, if de- livered, are considered as incorporated with the declaration, and then he is not allowed to give any evidence out of the bill;'^® but, though he cannot himself give evidence out of it, yet, if the defendant's evidence show that there were other items which he might have included in his demand, he is entitled to recover all that appears due him."^ In case of a slight discrepancy between the dates of a bill of particulars, and tbe original entries offered in evidence, where there is nothing to show surprise, the jury are to decide on the identity of the transaction.^'^ A variance must be taken advantage of, by objection to the evidence ; it can- not be made the ground of a motion for a new trial."^ 15. Proceedings on neglect to furnish bill. The supreme court, before its original jurisdiction was taken away, had a rule, requiring the prothonotary to enter a non pros, 112 Dee V. Sharon Hill Academy, s Del. 72. 113 Ashton V. Moyer, 8 W. N. C. 162. 114 Hubbard v. Tenbrook, 124 Pa. 291. 115 Jones V. Jones, 23 W. N. C. 370- 116 Holland v. Hopkins, 2 Bos. & Pul. 243. A charge for interest is no part of a bill of particulars. Lanning v. Swarts, 9 How. Pr. 434. Nor need it state any credits or payments. Ryckman v. Height, 15 Johns. 222. 117 Day V. Bower, i Campb. 69. 118 Imhoff V. Fleurer, 2 Phila. 35. up Grosholtz V. Stifel, 4 Phila. 16. 642 Common Law Practice in Pennsyi,vania. on proof of three months' notice to furnish a bill of particulars, and non-compliance therewith.^^" III. Change of Venue. 16. Constitutional provisions. Until the adoption of the constitution of 1874, the statutory provisions of the subject of a change of venue, were very imper- fect and incomplete ; but it was thereby provided, that the power to change the venue in civil and criminal cases should be vested in the courts, to be exercised in such manner as should be pro- vided by law.^^^ The power of changing the venue is not in- herent in our county courts, as it is in those whose jurisdictiori extends over greater areas; without such grant of power, they could not transfer their jurisdiction to another tribunal.^^' This clause of the constitution did not execute itself; but all former laws remained in force, until the legislature had taken action on the subject.^^* The act of 1875, however, expressly repealed all former laws relative to change of venue in civil cases.^^" 17. When a matter of right.(d) That act provides, that a change of venue shall be made (as matter of right) in either of the following cases : — I. Whenever the judge, who, by law, is required to try or hear the same, shall be personally interested in the event of such cause, or in the question to be determined thereby: II. Whenever the title under which the parties, or either of them, claim, in any such cause, shall have been derived from or through such judge, and he shall be liable there- d 9 Vale 26614. 120 Fleurot V. Durand, 14 Johns. 329; Ryckman v. Haight, 15 Ibid. 222. 120 Sup. Ct. Rule 8. (Walker's Court Rules 1857, p. 105.) 120 A Phila. rule of court formerly set forth that if the plaintiff, in any suit in which the defendant was entitled to a bill of particulars, did not, within fifteen days after demand, furnish the same, the court might order a non-suit; upon motion of the defendant, if no sufficient cause was shown to the contrary. Rule 30, §13. 122 Art III. §23. 123 Wattson V. Chester & Delaware River Railroad Co., 83 Pa. 254. 124 Ibid. 125 Act 30 March, 1875, P. L. 35. 3 Purd. §3, p. 3610. Proceeding Between Statement and Plea. 643 under, or whenever he shall hold upon the same title with either of the parties in the cause: III. Whenever any near relative of such judge shall be a party to any such cause, or interested in the event thereof ; un- less the judge so interested shall select another judge, learned in the law, not so related, to hear and determine the same:^^" IV. Whenever the county in which such cause is pending, or any municipality therein, or the officials of any such county or municipality, are parties thereto, and it shall appear, by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county: V. Whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he be- lieves he cannot have a fair and impartial trial. VI. A change of venue is also a matter of right, whenever an action is brought for the recovery of the purchase-money of real estate, in any other court than that of the county where such real estate is situate, on affidavit being made that the question at issue involves an inquiry into, and an adjudication of, the title, boundaries, location or value of such real estate.^^^ 18. When discretionary. The act of 1875^^* also gives the court a discretionary power to change the venue: — I. Whenever it shall appear, to the satisfaction of the court in which such case is pending, that any party to such cause hath an undue influence over the minds of the inhabitants of the said county, or that they are prejudiced against the applicant, so that a fair and impartial trial cannot be had : II. Whenever, in any plea of land, two juries of such county have failed to agree, and have been discharged without rendering a verdict therein: 126 Act 25 May, 1878, P. L. IS4, note (n). 3 Purd. 361 1. 127 Act 22 May, 1878, P. L. 98, 3 Purd. §11, p. 3613. 128 3 Purd, is, p. 3612. 644 Common Law Practice in Pennsylvania. III. Whenever it shall be made to appear to the court, that a fair and impartial trial cannot be had in the county in which any such cause is pending. 19. Proceedings for changing venue. In the first class of cases, the applicant for any such change of venue, may apply to the court, in term-time or to any law-judge thereof, in vacation, by petition, setting forth the cause of the application, which must be accompanied by his affidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay, and praying a change of venue ; and after reasonable notice thereof having been given to the opposite party, or his attorney, the court or judge is required, if satisfied of the truth of the facts alleged, to award a change of venue of the said cause, to some county where the cause com- plained of does not exist. In the second class of cases, on a simi- lar application and notice, the court proceeds to hear the parties by counsel, and affidavits, if necessary ; and may refuse or award such change of venue, as, in its discretion, it shall see fit. ig. Proceedings for changing venue. Whenever the court orders a change of venue, in any cause in law or in equity, it is made the duty of the prothonotary of the court in which such cause is pending, to forward to the prothono- tary of the county to which the same shall be removed, certified copies of all docket-entries, processes, pleadings, depositions and other papers pertaining to such cause; and the said certified copies, being duly filed and entered in the court to which the cause is removed, it proceeds in like manner as if such cause had been brought therein by original process against the defendant or defendants ; and the said court is required to proceed to trial in the same manner, and give judgment and award execution with like efifect, as though the cause had not been removed; and the records and copies filed in the court in which such cause is re- moved, have the same force and effect, in every respect and for every purpose, as the original would have had in the court from which such cause shall have been removed. The costs and fees attending the application for a change of venue and the removal of the record, are to be paid by the party applying for such change of venue, and to be taxed as a part of the costs, and abide the event of the cause. Proceeding Between Statement and Plea. 645 The act of 1875 was re-enacted in igog,"^ omitting the sixth clause for change of venue relating to real estate actions. Two years before, in 1907,"° it was enacted that the courts of com- mon pleas shall have power to grant a change of venue in all civil cases, either in law or equity, to another court of common pleas within the same judicial district, on the petition of either party to the proceedings, whenever, it is apparent to the court that the issue raised by the pleadings cannot be tried by it within six months from the time of applying for such change of venue. FORM OP PETITION FOR CHANGE OF VENUE. City of "^ In the Court of Common V. I Pleas, No. , for The Passenger Railway [County. Term, 1912. Company. J No. To the Honorable the Judges of the said Court : The petition of The Passenger Railway Company, defendant above named, respectfully represents : That this action is for the cost of repaving certain streets of the city of Philadelphia with an alleged improved pavement, and not only involves a very large sum directly in controversy in this case, but will be a precedent and possibly an adjudication and estop- pel for similar claims in the near future against this company, amounting to many hundreds of thousands of dollars ; and in ad- dition thereto will greatly affect similar litigation and claims against other railway companies in this city, amounting in the aggregate to millions of dollars. And your petitioner further shows that the plaintiff is a municipality in this county and is coterminus with the county, and that public attention has been attracted to an unusual extent to the claim which is the subject matter of the suit; that a large number of the inhabitants of this county have an interest in the question in volved adverse to petitioner; that there are issues of fact as well as of law to be tried ; and that local prejudice exists and a fair trial cannot be had in this county. Wherefore your petitioner prays for a change of venue here- in. And your petitioner will ever pray, etc. 129 March 18, P. L. 37, 5 Purd. §l, p. 5847. 130 June I, P. L. 374. 5 Purd. §2, p. 5847. 646 Common Law Practice in Pennsylvania. The Passenger Railway Company, (Seal.) G. H., President. Attest : L. M., Secretary. E. F., of Counsel. City and County of , ss.: G. H., being duly affirmed, says that he is president of the company petitioner; that the statements in the above petition contained are true, and that the application is not made for the purpose of delay. G. H. Affirmed and subscribed before me, this day of , A. D. 1912. indorsement. City of "^ Common Pleas, No V. > No. The Passenger Railway Company. J Term, 1912. Petition for change of venue. And now (date), upon consideration of the within petition, and on motion of E. F. for defendant, the court grant a rule on plaintiff to show cause why there should not be a change of venue in the above case. Rule returnable (date), 10 a. m. (Initials of Judge.) 20. The statute is mandatory. A change of venue means the changing of the place of trial to another county, but sometimes denotes the transfer of the cause to another court or judge within the county or district in which it is pending. "Change of venue" and "removal of causes" in statutes authorizing their transfer have the same signifi- cance.^^^ The statute is mandatory, and the question is not whether the grounds or reasons assigned are sufficient to war- rant a change of venue in the opinion or judgment of the court, but whether the applicant has brought himself within any of the causes for which the legislature has determined that the venue shall be changed. ^^^ If he has, the court must grant the 131 Felts V. Del., Lack. & Western R., 195 Pa. 21. The determination of the question whether a change of venue should he ordered is a judi- cial and not a ministerial act. Newlin's Petition, 123 Pa. 541. 132 Willoughby v. Buffalo, Roch. & Pittsburgh R., 203 Pa. 243; Brit- tain V. Monroe Co., 214 Pa. 648; Little v. Wyoming Co., 214 Pa. 596; Proceeding Between Statement and Plea. 647 application."'' The court must be satisfied of the truth of the reasons for the change and the burden of proof rests on the pe- titioner.^^* The power of changing the same is derived wholly from the statute.^^° The act covers all civil cases, which include a mandamus.^^" The statute was passed to carry into effect a provision of the constitution that the power to change the venue in civil and criminal cases shall be vested in the courts to be exercised in such manner as shall be provided by law.^'^ While the power to change the venue in civil cases is vested in the courts, the causes and mode of exercising the power are entirely under legislative control, with which the courts must strictly comply.^^^ The court can grant a change only for the reasons specified in the statute, and if these are not alleged in the petition it must be re- fused.^'^ 21. When is a judge "personally interested." That the president judge is a property owner and taxpayer in the county defendant does not make him "personally interested" within the meaning of this statute,^*" but cause for a change is established by evidence of local prejudice shown by hostile news- paper articles and testimony that a fair trial cannot be had in that county.^*^ Nor will interest as a taxpayer disqualify an as- sociate judge from sitting in a county line case ;^*^ nor his inter- est as a water renter disqualify him from sitting in a case in which the company seeks to restrain the defendant from pollut- ing the water.^*^ Lewisburg Bridge Co. v. Union & Northumberland Counties, 19 Dist. 1046, 1047. 133 Ibid. 134 Philadelphia & Ridge Ave. Pass. R., 143 Pa. 444, 3 Purd. 361 1. 13s Wattson V. Chester & Del. R. Co., 83 Pa. 254, revg. i W. N. C. 201. 136 Williamsport Councils v. Commonwealth, 90 Pa. 498. 137 Philadelphia v. Ridge Ave. Pass. R. Co., 143 Pa. 444. 138 Little V. Wyoming County, 214 Pa. 596. 139 York Haven Water & Power Co.'s Appeal, 23 L,anc. L. Rev. 292. 140 Brittain v. Monroe County, 214 Pa. 648; L,ewisburg Bridge Co. v. Union & Northumberland Counties, 19 Dist. 1046. 141 Lewisburg Bridge Co. v. Union & Northumberland Counties, 19 Dist. 1046. 142 Huntingdon County Line, 14 Super. Ct. 571. 143 York Water Co. v. Glatfelter, 4 York 87. 648 Common Law Practice in Pennsylvania. 22. When is applicant entitled to a change. The applicant is entitled to a change of venue when his peti- tion alleges that a large number of the inhabitants of the county- have an interest in the question adverse to that of the applicant, which is supported by his oath that "he verily believes that local prejudice exists and that a fair trial cannot be had in the county," and the evidence is sufficient to support these aver- ments/^* It is the duty of the court not to ascertain or determine the fact that local prejudice exists, but that it appears by the oath of the applicant.^*® The mere fact that a large number of the citizens of a county are interested as taxpayers in the event of an action neither pfoves nor tends to prove that local prejudice ex- ists, since a man's interest as tax payer does not disqualify him from sei-ving as a juror.^*® When no greater local prejudice ex- ists than is ordinarily incident to a county line commission and which was reasonably anticipated when the act authorizing the commission was passed the court is not bound to change the venue.^*' And a change of venue on the ground of local pre- judice will be refused when the applicant had obtained one ver- dict in his favor which had been reversed.**^ Nor will a change of venue be granted on the ground that a large number of the inhabitants of a particular locality in the county are interested in the suit when there is no evidence to support this statement.**^ Likewise an application for a change of venue by a turnpike company in a proceeding to free a turnpike will be denied when it is merely alleged that a large number of the tax payers of the county have an interest in the question, and that a fair trial cannot be had in the county, but the affidavit fails to give any reason, for the assertion in the petition, the truth of which is de- nied by the county .^^° 144 Willoughby v. Buffalo, Roch. & Pittsburgh R., 203 Pa. 243. The burden of proof is on the applicant to show that he would not have a fair trial unless the jurisdiction of his case is changed. Burns v. Penn- sylvania R. Co., 222 Pa. 406. 14s Little V. Wyoming Co., 214 Pa. 596. 146 ROmig V. AUentown, i L,eh. Co. 277. 147 BPuntingdon County Line, 14 Super. Ct. 571. 148 Finn v. Prpvidence Gas & Water Co., 5 Luz. L. T. (N. S.) 57. 149 Everson v. Sun Co., 215 Pa. 231 ; Presbyterian Church v. Phila. & Trenton St. R. Co., 217 Pa. 399. 150 Limerick & Colebrookdale Turnpike Co. v. Berks Co., 20 C. C. 199- Proceeding Between Statement and Plea. 649 33. What is an interest. What is an interest within the meaning of the fifth clause of the first section of the statute? It is not that simply of a tax- payer. The mere fact that a large number of the inhabitants of a borough are stockholders in a water company is no ground for removing a bill filed by the company to enjoin the pollution of water.^®^ And an averment that a lai-ge number of the inhabit- ants of the county have an interest "as they suppose" is insuf- ficient to authorize a change of venue. ^°^ Either party may apply for a change of venue ;^°' if interested ;^°* and the court to which the action was brought has jurisdiction to decide the question of removal. ^°° 24. Time for filing the petition. The act does not fix a time for filing the petition, but it should not be deferred till the trial has been called.^^^ And after the de- fendant has gone to trial on the general issue in an action for damages to real estate he is too late to question the court's juris- diction because the property is in another county.^"' But there may be a change of venue after trial and verdict if a new trial has been granted. ^^^ If the court refuses to hear the application, the appellate court may compel it to proceed to a hearing, but it the court hears and decides the application the appellate court will not review the findings of fact, nor reverse its decision ex- cept for an abuse of discretion."' Under the act of 1875 it was regarded as the better practice to hear the witnesses produced by the parties, or that testimony be taken on a rule before competent authority with notice to the opposite party.^"" In either way the witnesses will be subject to cross-examination and their knowl- edge of the facts can be more fully and definitely ascertained.^*' 151 York Water Co. v.- Glatfelter, 4 York 87. 152 Seibert v. Fernsler, 14 Lane. Bar 142. 153 Wallace v. Jameson, 179 Pa. 98. 154 York Water Co. v. Glaefelter, 4 York 87. 155 Hughes V. Mine Hill & Schuylkill Haven R., 30 Pa. 517. IS'6 Wallace v. Jameson, 179 Pa. 98. But see Williamsport & Erie R. Co. V. Cummins, 8 W. 4S0. 157 Magee v. Penn Schuylkill Valley R. Co., 13 Super. Ct. 187. 158 Rand v. Caflisch, 36 W. N. C. 198. 139 Jessop V. Ivory, 172 Pa. 44; Felts v. Del., Lack. & Western R., 160 Pa. 503. 160 Willoughby v. Buflfalo, Roch. & Pittsburgh R., 203 Pa. 243. 161 Ibid. 650 Common Law Practice in Pennsylvania. When the allegations of the applicant are denied by answer, the proper practice is to hear the parties on the issue raised either by depositions or oral testimony in open court.^'^ The court can- not be satisfied of the truth of the facts alleged when they are affirmed on one side and denied on the other, and when no depo- sitions are produced to show any reason for the opinion ex- pressed by the petitioners.^^^ The court should find and clearly state the facts disclosed by the pleadings and the testimony pre-, sented, and keep in mind the distinction between the applications under different sections of the act.^"* In applying, an affidavit must be made, but an oath is no longer required, and the affidavit may be made by an agent or employee for a corporation.^*^ A change of venue will not be granted on ex parte affidavits."* The filing of the petition and affidavit operate as a supersedeas and further proceedings in the original court will be void if the petition is granted and the court to which it has been removed has exclusive jurisdiction.^*^ An application to remand should be made to the county of derivative jurisdiction.^** IV. Consolidating Actions. 25. Consolidation of actions, (e) The consolidation of actions is intended to save expense, and may be ordered by the court, on motion.^*^ Where the plaintiff has several causes of action, which may be joined, one suit only should be brought; otherwise, the court will compel a consoli- dation, with costs of the application;^^" but this will never be di- rected, without the consent of the defendant, who may have good reasons for withholding it.^'^ In order to justify a consolidation e 9 Vale 26606. 162 Brittain v. Monroe Co., 31 C. C. 161. 163 Limerick & Colebrookdale Turnpike Co. v. Berks Co., 20 C. C. 199. 164 Willoughby v. Buffalo, Roch. & Pittsburgh R. Co., 203 Pa. 243. 165 Vankirk v. Pennsylvania R. Co., 76 Pa. 66. 166 Denny v. Cresson & Clearfield Co. R., 2 C. C. 645. 167 Southern Penn. R. v. Stevens, 4 Lane. Bar, No. 15 ; Fulton v. Lan- caster Co., 8 Lane. L. Rev. 66. 168 Southern Penna. R. Co. v. Stevens, 4 Lane. Bar, 15. 169 Brown v. Scott, i Dall. 147. By agreement actions may be con- solidated and changed in form. Sieger v. Sieger, 209 Pa. 65. 170 Wolverton v. Lacey, 18 Law Rep. 672; Towanda Bank v. Ballard, 7 W. & S. 434; Wetherill v. Wilson, 26 W. N. C. 231. 171 Groff v. Musser, 3 S. & R. 262. Proceeding Between Statement and Plea. 651 at common law the following conditions are essential : ( i ) The actions must be pending, all perfect and complete, at the same time, or at least before any writ is issued. (2) The actions must be between the same plaintiff and defendant. (3) The actions must be such as may be joined.^'^ A consolidation of several actions may be ordered, after appeal from the judgments of a justice of the peace ;"^ and the court will order several suits, brought between the same parties on separate promissory notes of the same date, to be consolidated into one on the ground of vexation and oppression. ^'^ But the court, in its discretion, may order the consolidation of several actions into one or more; thus, seven suits on protested bills were ordered, in view of the length of the declarations, to be consolidated into three.^^° Two suits by the same plaintiff against the same defendant on a claim for the use of the plaintiff's farm may be consolidated;^''^ also two municipal claims that had been filed against separate portions of the same lot;^'^ also several liens filed against several lots forming a block.^'^ An agreement provided for an amicable action to revive and continue the lien of three judgments thereon. The prothonotary was thereby authorized to enter one judgment for the total amount."" 26. When granted. By the act of 1895,"^ whenever an injuiry not resulting in death, shall be wrongfully inflicted on the wife, for which a right of action accrues to her and also to her husband, the two rights of actions shall be redressed in one suit brought in both names. "The proper procedure under this act," says Rice, P. J., "results in a separate verdict and judgment in favor of each plaintiff, if both recover. The manifest advantages of the procedure are, that it saves expense, and, more important, prevents the possi- 172 Williams, P. J., Pearce Mfg. Co. v. Hartford Fire Ins. Co., 15 Dist. 64s, 647. 173 Boyle V. Grant, i8 Pa. 162. 17s Merrihew v. Taylor, i Bro. app. Ixvii. 176 Rumsey v. Wyncoop, i Yeates 5. And see Prior v. Kelly, 4 Yeates 128. 177 Roland v. Eckman, 14 Lane, h- Rev. 303. 178 City V. Tyson, 9 W. N. C. 367- 179 Beltzhoover, Borough v. Maple, 130 Pa. 335. 180 Beshler's Estate, 129 Pa. 268. 181 May 8, §1, P. L. 54. 3 Purd. §10, p. 3247. 652 Common Law Practice in Pennsyij V. >C. P. No. I, March Term, 1912, No. 200. B. J To the Prothonotary of the Court of Common Pleas No. i, of Philadelphia County. Sir : Enter rule on defendant to plead in fifteen days, or judg- ment sec. reg. C. D., Plaintiff's Attorney. (Date.) 14. What evidence may be given under this plea. In assumpsit under the plea of the general issue the defendant may give in evidence everything (even a general release) which shows that the plaintiff has no right to recover, notwithstanding 133 Steinbrecker v. Del. & Hudson Co., 15 Dist. 665 ; Roberts v. Buf- falo R. & T. Ry. Co., S Dist. 124. 134 Daly V. Iselin, 10 Dist. 93. 134a Moore v. Moore Distilling Co., 234 Pa. 413. O^ Pleas. 687 that no notice has been given, under the rule of the court.*'^ By this plea, says Justice Bell, the defendant puts his antagonist upon proving his whole case, and entitles himself to give in evi- dence any thing that shows that, at the time the action was com- menced, the plaintiff, ex aequo et bono, ought not to recover ; this is especially true of everything going to the consideration, which is the gist of the action."" In indebitatus assumpsit, the defend- ant may demand of the plaintiff to specify the nature of the evi- dence he means to offer; and until this is done, the court will not suffer the plaintiff to bring on the trial.^^' 15. Nul tiel record. (i) Formerly nul tiel record, not a true record, was specially pleaded, but now this is included in the general issue, for the rea- son that as the act of 1887 excludes all special pleas except those mentioned, and as the matter contained in such a defense may possess the highest justice and therefore it may be presumed the law intends to use it in some form, they can be pleaded under the general issue."' The plea merely raises an issue of law as to the existence of the record in question.^'® The existence of a foreign judgment is properly questioned by this plea.^*" And on such a plea to a recognizance of bail on an appeal from a justice, the issue must be tried by the transcript and recognizance on file, and not by the justice's docket.^*^ And a plea to one of the two i 7 Vale 21360. 13s Lyon V. Marclay, i W. 271. Infancy may be given in evidence un- der the general issue. Stansbury v. Marks, 4 Dall. 130. So may a former recovery. Carvill v. Garrigues, s Pa. 152; Finley v. Hanbest, 30 Pa. 190. And see Kennedy v. Ferris, S S. & R. 393. 13s Gaw v. Wolcott, 10 Pa. 43. And see Beals v. See, 10 Pa. 56; Scott v. Province, i Pitts. 189. 136 Ibid. And see Dawson v. Tibbs, 4 Yeates 349; Greenwalt v. Horner, 6 S. & R. 71 ; Von Storch v. Griffin, 77 Pa. 504. 137 Kelly v. Foster, 2 Binn. 7. And see Dunlap v. Miles, 4 Yeates 366. 138 Empire Mfg. Co. v. Hench, 15 Dist. 659; Susquehanna Mutual Fire Ins. Co. v. Reinoehl, 5 Lane. L. Rev. 3. See Union Type Foundry v. Kittanning Ins. Co., 138 Pa. 137. 139 Cooper v. Gray, 10 W. 440; Burkhalder v. Keller, 2 Pa. 51; Shaw V. Boyd, 12 Pa. 215. 140 Curtis V. Hubbell, 8 W. N. C. 367. See also Dimmick v. Leath, 5 Kulp 255. 141 Bell v. Murphy, 6 W. & S. 50. 688 Common Law Practice in Pennsyi,vania. recognizances does not prevent recovery on the other which, it is not averred to have supplied.^*^ On a writ of scire facias to revive, the judgment should follow the original in the amount, date and names of the parties. Such a defect isifatal in a plea of nul tiel record ; if there be no such plea however the judgment will stand as effective if the record shows an identity of the proceedings, though there be an irregu- larity in the names of the plaintiffs.^*' Such a plea is addressed to the court, of which in technical strictness disposition should be made before the jury is sworn.^** This, however, is not essential, any more than the observing of the. ancient pre requisites of the rule to bring in the record. An ac- tual disposition of the plea by the court is all that need appear.^** The replication of the plea should re-assert the record and pray that it may be inspected.^** On a replication where the record is one of the same court a general judgment, though in- formal, is regular."^ If there be a variance between the judg- ment pleaded and that produced, the defendant is entitled to judgment.^** The subject will be further considered under the head of special matter and notice. i6. Plea of payment, (j) In addition to the plea of the general issue, the defendant may use three other pleas. The first of these that may be mentioned is payment, subject to such reasonable terms as the court may impose.^*^ The proof to support a plea of payment must be confined to matters which are admissible at common law and which constitute technical payment; when an equitable payment is alleged, notice of the matters constituting it must be given.^"' Where an affidavit of defense sets up that the defendant has j 7 Vale 21356, 21363. 142 Bechtel v. Bechtel, 2 Leh. Co. L,- J. 53- 143 Wood V. Codding, 134 Pa. 91. 144 Koons V. Headley, 49 Pa. 168, 172; Jeremy v. Edmunds, 12 Luz. L. R. 270; Oliver v. Foster, 3 Clark 388; 7 Vale 21363. 14s Endlich, J., Stewart v. Eisenhower, 4 Dist. 565, 567. 146 Share v. Becker, 8 S. & R. 239. 147 Share v. Hunt, g S. & R. 404. 148 Walker v. Pennell, 15 S. & R. 68; Eichelberger v. Myser, 8 W. 181. See Cooper v. Gray, 10 W. 440. 149 Stillwell V. Rickards, 152 Pa. 437. 150 Lovegrove v. Christman, 164 Pa. 390. Of Pleas. 689 transferred to the plaintiff accounts which have been collected in excess of the plaintiff's claim, and the defendant afterwards pleads non-assumpsit and payment with leave the court will, on motion, order the defendant to file a notice of special matter under his plea of payment."^ Again, the plea of payment, with- out notice of set-off, will not stop the running of the statute of limitations against the defendant's counter claim.^^^ Payment of part of a debt cannot be pleaded as payment of the whole debt.^^' On a plea of payment to a scire facias sur mechanic's lien with proper notice any equity which tends to defeat the claim may be given in evidence. Furthermore a plea of payment to a mechan- ic's lien is a waiver of all technical objections to the sufficiency of the description in the lien itself.^^^ Without notice the plea has no more than its common law effect.^®® If an administratrix issues a scire facias on a judgment in favor of her intestate without any suggestion of the death, the plea of payment admits her right to sue.^^° Lastly when a collateral judgment is opened by agreement for the purpose of determining how much is due thereon and no plea of payment or other plea is entered or ordered to be entered, the burden of proof is on the plaintiff to show the primary indebtedness which the judgment was intended to secure. In such case it is immaterial that a scire facias to re- vive the judgment had been issued before the judgment was opened and to that writ a plea of payment had been filed.^'^ Prior to the act of May 25, 1887, the practice required that a tender should be pleaded,^^^ but since that date as special plead- ing was thereby abolished, it is not necessary to plead tender,^"* for the averment of tender in an affidavit of defense is the equivalent of a plea.^"** And an affidavit showing facts which supported by the record of payment into court of the amount ad- 151 Mershon v. Anderson, 40 W. N. C. 192. 152 Wisecarver v. Kincaid, 83 Pa. 100. 153 Third Nat. Bank v. D'Olier, i Chester 373; Brandon v. Brandoa, 2 C. C. 46. 154 Lucas V. Brockway, 45 L. J. 331. 155 Swaltz V. Ryan, 112 Pa. 423. 156 Finney v. Huston, 7 W. N. C. 44, 157 Miller v. Miller, 209 Pa. 511. 158 Sheredine v. Gaul, 2 Dall. 190. 159 Carvell v. Felker, 26 Lane. L. Rev. 4. 160 North Pennsylvania Fire Ins. Co. v. Susquehanna Fire Ins. Co,, 2 Pears. 289. 44 690 Common Law Peactici; in PgNNSYtvANiA. mitted to be due would support a plea of tender, is sufficient to prevent judgment.^*^ The tender may be made before suit is brought, or it may be made afterward. In order to have judgment entered for the plaintiff without costs an affidavit of defense must aver a tender before suit either with the interest due or before any interest has accrued. An affidavit therefore which merely states that the defendant tendered to the plaintiff the sum claimed, which he refused to accept, and does not state when the tender was made, is insufficient to prevent the entry of judgment with costs."^ The tender must be continued and be actually paid into court be- fore the rendition of the verdict. When this is done, if the jury finds that no more is due the plaintiff than the amount of the tender, the verdict and judgment must be for the defendant which gives him the costs. ^^^ When the affidavit of defense alleges a tender of the amount due before suit no costs can be allowed on a judgment for want of a sufficient affidavit of de- fense.^°* When tender is thus made before the bringing of the suit, the verdict should be for the defendant if he has paid all the costs that accrued to the time of the tender and the plaintiff fails to recover a larger sum.^*' Under a plea of tender and pay- ment into court, an award of arbitrators for the plaintiff with costs imports a finding against the tender, for otherwise it would have been for the defendant.^"^ When a tender is made after the suit is brought it must be followed by an actual pay- ment into court on leave obtained of the amount tendered with the accrued costs. ^^' The money thus paid becomes the absolute property of the other party who may take it out and still proceed under penalty of the payment of costs in the event of recovering no more than the sum tendered.^®* The pay- 161 George v. Sunday, i Wood. 364. See also Smith v. Hazlett, i W. N. C. 62; Wilson V. Cresson, i W. N. C. 92; Shackerman v. Volbrath, I W. N. C. 149; Stephenson v. Carpenter, 82 Pa. 515. 162 Sweet V. Eichenberg, 26 Lane. L. Rev. 238. 163 Wheeler v. Woodward, 66 Pa. 158; G. M. Davis Regulator Co. V. Phoenix Iron Works Co., 34 C. C. 294. 164 North Pennsylvania Fire Ins. Co. v. Susquehanna Mutual Fire Ins. , Co., 2 Pears. 289. 165 Dannenhauer v. Woods, 16 Dist. 227. 166 Berkheimer v. Geise, 82 Pa. 64. 167 Berkheimer v. Geise, 82 Pa. 64. 168 Sharpless v. Dobbins, i Del. 25. Of Pi,eas. 691 ment is an act of record which admits that the money belongs to the plaintiff and therefore the defendant cannot take it back or any part of it, though the verdict be for less than the amount paid into court.^^° But when in a pending action the defendant by leave of court pays the money into court which the plaintiff refuses to accept, and subsequently in open court after the jury has been sworn, the court permits the defendant to withdraw his money, objections to this order filed after a judgment has been rendered in the defendant's favor are too late.^'" After the jury has been called into the box and are ready to be sworn a tender* by the defendant to the plaintiff must also beside the debt and costs include the fees of the witnesses then in court awaiting the trial."^ And a tender with all costs to date before a magistrate, and a further tender at the trial of the appeal renders the plaintiff liable for all costs subsequent to the first tender if the verdict is for a less amount.^^^ Again, if it appears on the trial that the defendant did not pay all the costs which had accrued to the time of the tender the plaintiff is entitled to a verdict for the costs.*^' When the money is paid into court it becomes the plaintiff's property and the defendant cannot withdraw it, or recover any part, though the verdict of the jury is for less than the amount tendered and judgment is entered for the defendant, or the plain- tiff is non-suited at the trial.^'* The court however will give the plaintiff leave to take it out on entering satisfaction on the record pro tanto,^'^ and in a proper case money paid into court may be impounded for the defendant's costs.^^* Furthermore, if the de- fendant takes the money out of court he can be compelled to re- store it.^'^ The prothonotary as officer and representative of the court takes charge of the fund, but payment to the prothonotary 169 Berkheimer v. Geise, 82 Pa. 64; Sharpless v. Dobbins, I Del. 25; Dannenhauer v. Woods, 16 Dist. 227. 170 Farewell v. Johnson, 17 Dist. 1047. 171 Beard v. Heck, 13 York 17. 172 Carvell v. Felker, 26 Lane. L. Rev. 4. 173 Bracey v. Marion Coal Co., 7 Dist. 310. 174 Sheehan v. Rosen, 12 Super. Ct. 298; Heavener v. Tilli, 19 Montg. 13, 4 St. 4752. 17s Heavener v. Tilli, 19 Montg. 13. 176 Jenkins v. Cutchens, 2 Miles 65; Sharpless v. Dobbins, i Del. 25. 177 Wheeler v. Woodward, 66 Pa. 158. 6g2 Common Law Practicb in Pennsylvania. without the intervention or knowledge of the court itself is in no sense a payment of the money into court.^'* When the defendant pleads set-off in a larger amount than the plaintiff's claim, the plaintiff may tender the defendant his costs and the balance he admits to be due and thus avail himself" of the statute as if he were the defendant in an action by the other party.^'^ If on the trial the jury returns a verdict for the plaintiff a rule for a new trial will be discharged on the filing by the plaintiff of a remittitur for the amount of the verdict, other- wise it will be made absolute.^*" As the act is declaratory of the common law, the defendant is entitled to costs only from the date of the tender."^ Therefore, after the tender of all accrued costs, if the plaintiff does not re- cover judgment for an amount greater than the sum tendered, the defendant is entitled to all subsequent costs.^*" But if the de- fendant does not tender all costs to date, the plaintiff will not be liable for costs subsequently accruing though he receives less than the amount of the tender.^^' In replevin for goods distrained it is the plaintiff's duty to report and keep up the tender of the amount of rent admitted to be due, or to pay the money into court.^^* At common law, when a tender was made after suit brought, the court would permit the defendant on a rule granted for that purpose, to pay into court the sum admitted to be due with all costs to the day of payment,^^^ but since the act of 1887 it is not necessary to plead tender.^'^ By court rules recently adopted "when a defendant relies upon a set-off or counter-claim, he must first answer the averments of the statement, and then set out his set-off or counter-claim, under the heading 'set off' or 'counter-claim,' which shall be stated in accordance with the rules for drawing statements. If, in any case in which the defendant sets up a counter-claim for 178 Commonwealth v. Walter, 99 Pa. 181. See also Cohen v. Green, 5 Law Times (U. S.) il. 179 Sharpless v. Dobins, i Del. 25. 180 Ibid. 181 Sharpless v. Dobbins, i Del. 25. 182 Miller v. Plymire, i Walk. 233. 183 Horan v. Flanagan, 3 Del. 426. 184 Gallagher v. Burke, s Kulp 392. 185 Sharpless v. Dobbins, i Del. 25. 186 Carvell v. Felker, 26 Lane. L. Rev. 4. Of Pleas. 693 which he might have a certificate in his favor, the action of the plaintiff is stayed, discontinued, or a voluntary non-suit is suf- fered, the counter-claim may, nevertheless, be proceeded with.""8a On a plea of payment, justice is prompted by the universal rule in the courts of this state, that, under this plea, evidence may be given which shows that ex aequo et bono the plaintiff ought not to recover.^'" But it is provided by rule of court, in many counties that when the defendant claims a set-off, he must set forth his claim specially.^*® The reason of this rule is, that, from the want of a court of chancery in this state, the special matter may be regarded as the substance of a bill in equity, and the notice gives ample opportunity to the plaintiff to meet the allegations contained in the special matter;^*'' the more, as it has been decided, that the spirit of the rule obliges the defendant to specify the particulars of the defense as to want of considera- tion, fraud, falsehood or suppression of the truth, if required by the plaintiff ;^^° and it has been ruled, that there is no distinc- tion, as to notice of the special matter intended to be objected in avoidance of a bond, between a total and partial want of consid- eration.^^^ Where the special matter is the ground of the con- troversy, or reason or cause of the issue, notice of it cannot be exacted.^*^ The plea of payment, with leave, is a general-issue plea, within the purview of a rule of court requiring previous notice of a special defense, under the general issue.^"^ The plea of pay- ment admits the cause of action as stated in the declaration, and throws the affirmative of the issue on the defendant.^'* It should be observed, however, that the plea of payment, with i86a Phila. rules Nos. 56, 57. 187 Hollingsworth v. Ogle, i Dall. 257; Uhler v. Sanderson, 38 Pa. 128. Under this plea, the defendant may give evidence of want of con- sideration. Swift V. Hawkins, I Dall. 17. And see Mackey v. Brown- field, 13 S. & R. 240. 188 189 See Chap. 2, §10 b. 190 Greenwalt v. Born, 3 Yeates 6; Hale v. Fenn, 3 W. & S. 361. 191 Brown v. Herron, 4 Yeates 561 ; Hessner v. Helm, 8 S. & R. I79- 192 Goodwin v. White, i Bro. 272. And see Bryson v. Ker, 4 S. & R. 308. See chap. 2, §10. 193 Covely V. Fox, 11 Pa. 171; Loose v. Loose, 36 Pa. 546. 194 Gebhard v. Francis, 32 Pa. 78. 694 Common Law Practice in Pennsylvania. leave, is only admissible where damages are claimed; and is, therefore, a nullity, when pleaded to a sci. fa. to revive a judg- ment in ejectment or in dower, even after a replication of non solvit.^'° The plea of payment, with leave, &c., to an action of debt, against the acceptor of a bill, is an admission of the draw- ing and acceptance, and that the bill is in the hands of the plain- tiff, as indorsee and holder.^"* The plea of payment admits all the material averments in the writ, as there set out, and puts the defense on collateral grounds.^^' The replication non solvit to the plea of payment, is merely formal, and the cause is at issue, within a rule of court, which dispenses with a formal joinder, when a substantial issue has been raised.^'* Under this plea, the jury cannot find any sum due from the plaintiff to the def endant ;^^^ to authorize this finding, notice of defalcation must have been given; for an equitable defense, under the plea of payment, is very different from defalcation, under that plea. Under the former plea and notice, therefore, the defendant can only give such matters in evidence as show that the plaintiff has no right to recover ; he may defeat the plaintiff's action, but there must stop; but when he pleads payment, with leave to give defalcation in evidence, he may give evidence of matter which entitles him to a recovery against the plaintiff.^"" By the plea of payment, with leave, &c., the defendant does not put in issue his original legal liability; under such pleading, he can only show that he has paid the debt, or that he has an equitable defense to the action. ^"^ An averment in the plaintiff's statement, that notice of nonpayment was given on a wrong date, is but a defect in form, and the subject of amendment. It is not necessary to aver the precise date when the notice was given, and the averment of the statement, not being inconsistent with the fact that another notice was given at the proper time, if the parties go to trial on the merits, on the pleas of payment, and ipS Shaw V. Boyd, 14 Pa. 215. 196 Snyder v. Wilt, 15 Pa. 63. 197 Lewis V. Morgan, 11 S. & R. 234; Abbott v. Lyon, 4 W. & S. 39; Gilinger v. Kulp, s W. & S. 264. 198 Beak v. Buchanan, 9 Pa. 123. 199 Anderson v. Long, 10 S. & R. 55. 200 King V. Diehl, 9 S. & R. 409, 422; Cook v. Haggerty, 36 Pa. 67. 201 Loose V. Loose, 36 Pa. 538. Of Pleas. 695 payment, with leave, &c., judgment will not be arrested, on the ground of the insufficiency of the statement.^"^ The pleading of payment to a scire facias on a mechanics' lien after the entry of a motion to strike off, is a waiver of formal defects in the lien, and the motion to strike off for such formal defects must be refused. On the trial however, the defense may be made on the ground that the lien is structurally invalid under the plea of payment.^"^ 17. Set-off. (k) In addition to the plea of non-assumpsit the defendant may plead set-off. An agreement not to plead a set-off is binding on the party and will be enforced.^"* And where a set-off is a breach of an independent contract the contract itself, the breach and the amount of damage should be set out in full and with precision.^''^ And when a cause has been tried on the supposi- tion that such a plea has been entered the court will not grant a new trial on the ground that the plea had not been filed, but will direct such a plea to be entered of record as of the date of the trial.^"® But this plea may be barred by the statute. Thus if it is filed in an action of account more than seven years after the last of the moneys charged to have been unlawfully restrained could have been received by the decedent.^"' k 7 Vale 21369. 202 Loose V. Loose, 36 Pa. 538. 203 The plea of judgment as a legal plea admits evidence of direct pay- ment, but from its origin, as an equitable defense it admits proof of any- thing which the defendant can advance as a reason why, in equity and good conscience, he should not pay. At all events it is an affirmative plea which admits the plaintiff's claim. Lewis v. Morgan, ii S. & R. 234. After a plea of payment, the lien may be read to the jury. Lybrandt v. Eberly, 36 Pa. 347. After a plea of payment, no questions as to the suf- ficiency of the claim upon its face can properly arise. Howell v. City ot Philadelphia, 38 Pa. 471; Lee v. Burke, 66 Pa. 336; St. Clair Coal Co. V. Martz, 75 Pa. 384; Scholl v. Gerhab, 93 Pa. 346; Klinefelter v. Baum, 172 Pa. 652; Norristown Borough v. Fornance, i Super. Ct. 129; Allen- town v. Ackerman, 37 Super. Ct. 363; Humphries v. Addicks, 4 W. N> C. 88. 204 Ardesco Oil Co. v. North America Oil & Min. Co., 66 Pa. 375. 20s Close V. Hancock, 3 Super. Ct. 207. See also Sweigard v. Con- sumers' Ice Co., IS Super. Ct. 285; Fleisher v. Blackburn, 13 Super. Ct. 289. 206 Smith V. Gross, 27 C. C. 384. 207 Sieger v. Sieger, 209 Pa. 65. 696 Common Law Practice in Pennsyi^vania. a. What claims may be set-off. Mutual demands do not necessarily extinguish each other, by operation of law ; set-off is permissive, not compulsory.^"* And the recoupment of damages arising out of the same transaction is matter of equitable defense, not strictly set-off.^°* Under our statute, vmliquidated damages, arising ex contractu, may be set off whenever they are capable of liquidation by any known standard ; and the defendant may have a certificate of a balance in his favor,^^" though such damages arise out of a distinct and independent contract. °^^ In an action on a note, the maker may set-off usurious interest taken in another transaction.^^^ A debt for which a verdict has been obtained may be set-off ;^^^ and a balance certified in favor of the defendant, in another suit be- tween the parties f^* so may a debt which is in judgment.^^^ But a debt not due at the time of suit brought, cannot be set-off ;^^° nor a liability incurred, but which has not accrued."^' A cause of action, void by the statute of frauds, cannot be used as a set- off ,-^^ nor one barred by the statute of limitations, without evi- dence to take it out of the statute ;^^^ nor an unsettled partner- ship account f'" a claim recoverable only by action of account, or 208 Himes v. Barnitz, 8 W. 39; Hinkley v. Walters, 8 W. 260; Car- malt V. Post, 8 W. 406. 209 See Shaw v. Badger, 12 S. & R. 275; Hubler v. Tamney, 5 W. si; Patterson v. Hulings, 10 Pa. 508; Hunt v. Gilraore, 59 Pa. 450. 210 Carman v. Franklin Fire Ins. Co., 6 W. & S. 155 ; Shoup v. Shoup, IS Pa. 361; Hunt v. Gilhiore, 59 Pa. 4S0; Biswanger v. Stocker, 2 W. N. C. 407; Stover v. Hotel Co., 3 W. N. C. is6. 211 EUmaker v. Franklin Fire Ins. Co., 6 W. & S. 439; Speers v. Ster- rctt, 29 Pa. 192; Halfpenny v. Bell, 82 Pa. 128; Domestic Sewing-Ma- chine Co. v. Saylor, s W. N. C. 286. 2X2 Thomas v. Shoemaker, 6 W. & S. 179; Brown v. Bank of Erie, 72 Pa. 209; Lucas v. Bank of Pottsville, 78 Pa. 228. .213 Bell V. Cowgill, I Ash. 7. 214 Galloney's Appeal, 6 Pa. 37. 215 Metzgar v. Metzgar, i R. 227. 216 Morrison v. Moreland, 15 S. & R. 61; Huling v. Hugg, 1 W. & S. 418. 217 Sennett v. Johnson, 9 Pa. 335. 218 Ibid. 219 Taylor v. Gould, 57 Pa. 152. 220 Wharton v. Douglass, 76 Pa. 273; Stiles v. Dougherty, 16 L. I. 132; Haines v. Rapp, 2 W. N. C. 595; Craig y. Rushton, i W. N. C. 29; Dovell V. Zulich, i W. N. C. 264. Of Pleas. 697 bill in equity ;"^ nor profits, not realized.^^^ So, damages sound- ing in tort arising out of a distinct transaction, cannot be de- falked, under the plea of payment,^^^ unless the party has the election to waive the tort and sue in assumpsit. ^^* b. Character of the parties. A set-off is not allowable, unless the debts be due in the same right.^"^ In an action by A., a claim against B., as partners, cannot be set-off ;^^'' but in an action by a surviving partner for a firm debt, the defendant may set off a debt due to him by the plaintiff, in his individual capacity ;^^' where, however, an in- solvent surviving partner has obtained judgment, and the state of the accounts does not appear, the defendant will not be per- mitted to set-off a judgment for a separate debt, against the plaintiff.^^* In an action against one of several partners, the defendant, with the assent of his copartners, may use a debt owing by the plaintiff to the firm, not as a set-off, but by way of equitable defense; but such assent must be shown.^^° Two de- fendants, jointly sued, may set-off a debt owing by the plaintiff to one of them f^" so, the defendants may set-off a debt owing by the plaintiff to a firm of which they are members, with the assent 221 Russell V. Miller, 54 Pa. 154. 222 Mackey v. Millar, 6 Phila. 527; Bunting v. Hopple, 2 W. N. C. 544; s. c. 3 W. N. C. 472. 223 Kachlin v. Mulhallon, 2 Dall. 237; s. c. l Yeates 571; Gpgel v. Jacoby, s S. & R. 117; Brotherton v. Haslet, S S. & R. 334; Cornell v. Green, 10 S. & R. 14 ; Wright v. Smyth, 4 W. & S. 527 ; Commonwealth V. Schultz, Bright. 29; Charlton v. Allegheny City, i Grant 208; Acker- man V. Smith, I Pears. 302; Lehmaier v. Born, i W. N. C. 444; Thom- son's Estate, 5 W. N. C. 14 : Roth v. Reiter, 213 Po. 400. 224 Nickle V. Baldwin, 4 W. & S. 290. 225 Darroch v. Hay, 2 Yeates 208; Wain v. Wilkins, 4 Yeates 461; Potter V. Burd, 4 W. is; Minich v. Crozier, 2 R. ili; Carman v. Gar- rison, 13 Pa. 158; Haage's Appeal, 17 Pa. 181; Singerly v. Swain, 33 Pa. 102; McCracken v. Elder, 34 Pa. 239; Milliken v. Gardner, 37 Pa. 456; Lorenz v. King, 38 Pa. 93; Scott v. Fritz, 51 Pa. 418; Ahl v. Rhoads, 84 Pa. 319; Jenkins v. Rush Brook Coal Co., 205 Pa. 166. See Vol. III. Chapter on Assumpsit. 226 McDowell V. Tyson, 14 S. & R. 300. 227 Lewis V. Culbertson, 11 S. & R. 48. 228 Wain V. Hewes, 5 S. & R. 468. 229 Wrenshall v. Cook, 7 W. 464. And see Craig v. Henderson, 2 Pa. 262; Solliday v. Bissey, 12 Pa. 347; Silberburg v. Pincus, 6 Phila. S33- 230 Childerston v. Hammon, 9 S. & R. 68; Miller v. Kreiter, 76 Pa. 78. 698 Common Law Practice in Pennsylvania. of the other partners.^^^ A defendant, sued with another, may set-off a debt due him by the plaintiff, unless there be some su- perior equity in a third person f^^ but a debt owing by the plain- tiff" to a co-obligor, not summoned, cannot be set-off against a joint demand f^^ and damages for a breach of a partnership con- tract cannot be set-off against a demand by one of the partners, in a suit founded on his original contract.^''* In an action for the use of three, the defendant cannot set-off separate claims against each of them.^^'' In a suit against principal and surety, a debt owing by the plaintiff to the principal may be set-off f^^ and in a scire facias on a mechanics' claim, the contractor may set-off a claim against the plaintiff.^^^ Where a debt is attached, the garnishee cannot set-off a claim against the attaching-creditor.^^' In an action by an executor, where the estate is notoriously in^ solvent, a debt not due at the death of the testator, cannot be set off; the rights of creditors are fixed by that event ;^^° but a debt due at the death of the decedent may be set-off, though the estate be insolvent.^*" c. Practice. Under the act of 1705, no other plea than payment is necessary to let in a set-oft' ;"^ the addition to it of the special plea of set- off, is only warranted by long practice.^*^ A set-off is in the nature of a cross-action, and may be withdrawn, after the evi- dence is closed, and before the case is submitted to the jury;"^ 231 Tustin V. Cameron, S Wh. 379. 232 Stewart v. Coulter, 12 S. & R. 252; Crist v. Brindle, 2 R. 121; Balsley v. Hofifman, 13 Pa. 603. 233 Henderson v. Lewis, 9 S. & R. 379; Archer v. Dunn, 2 W. & S. 327; Fargo V. Brown, 4 Leg. Gaz. 197. 234 Jackson v. Clymer, 43 Pa. 79. 235 Watson V. Hensel, 7 W. 344. 236 Hollister v. Davis, 54 Pa. 508. 237 Gable v. Parry, 13 Pa. 181. 238 Yerkes v. Simons, i W. N. C. 473. And see Cramond v. Bank ol the United States, 4 Dall. 291 ; s. c. i Binn. 64. 239 Bosler v. Exchange Bank, 4 Pa. 32; Farmers' & Mechanics' Bank's Appeal, 48 Pa. 57. 240 Light V. Leininger, 8 Pa. 403. And see Beaver v. Beaver, 23 Pa. 167. 241 Balsbaugh v. Frazier, 19 Pa. 95. 242 Coulter v. Repplier, 15 Pa. 211. 243 Gallagher v. Thomas, 2 Brewst. 531. Op Pi Good V. Grit Pub. Co., 214 Pa. 614. See Brunner v. Finley, 211 Pa. 74- 43 Gibson v. Gibson, 20 Pa. 11. 7i6 , Common Law Practice in Pennsylvania. hold the defendant to bail, provided the discontinuance of the first action did not arise from any gross laches on the part of the plaintiff, and the second arrest do not appear to be vexatious.** A discontinuance entered in the prothonotary's office without the payment of the defendant's costs will, on the latter's motion, be stricken off;*° and in discontinuing condemnation proceedings by municipal corporations all costs and expenses including coun- sel fees should be paid.*' In other cases also the attorney's fee on a discontinuance should be taxed as part of the costs.*' When a suit is settled and marked "discontinued," the defendant cannot enter judgment against the plaintiff for costs as in ordinary cir- cumstances ** and the counsel for the defendant is entitled to it.*° A plaintiff, before declaration filed, addressed the following authorization and requirement, in writing, signed by her, to the prothonotary of the court in which her action was brought: "E. McM. V. J. F. L. In the court of common pleas of H. county: Sir, you are hereby authorized and required to discontinue for ever and withdraw the above-stated suit for ever, on the pre- sentation of this paper." This paper was filed of record by the prothonotary: it was held that it was not a retraxit, but simply a discontinuance or non-suit ; and, consequently, neither a bar nor estoppel to a subsequent suit for the same cause of action.®" 8. Cannot be discontinued after final judgment. A case cannot be discontinued after final judgment ®^ notwith- standing the pendency of a rule to open it ; ®^ indeed, a discon- tinuance after judgment is in effect a satisfaction.®' But when a suit is brought before a magistrate to recover the amount then 44 Doane v. Penhallow, i Dall. 220. 45 La Touche v. Rowland, 12 W. N. C. 384. 46 Moravian Seminary v. Bethlehem, 153 Pa. 583. 47 Griffith V. Stadtmuller, 9 W. N. C. 348. 48 Posten V. Mead, 3 Lane. L. Rev. 3. 49 Hamilton v. Hamilton, 10 C. C. 255. 50 Lowry v. McMillan, 8 Pa. 157. The entry of "settled as per agreement filed," amounts to a discontinuance. Berks and Dauphin Turnpike Co v. Hendel, Ii S. & R. 123. And see Hoffman v. Porter, 2 Brock. 156. 51 Rudolph V. Sturgis, 11 Dist. 395; Kennedy v. McNickel, 2 Brewst. S36; Saint V. Cornwall, 207 Pa. 270. 52 Kennedy v. McNickle, 2 Brewst. 536; Randolph v. Sturgis, 11 ■Dist. 395. 53 Lesh V. Meminger, 17 Dist. 841. Of Discontinuance and Nolle Prosequi. 717 due and judgment is obtained by the plaintiff from which the defendant appeals, the plaintiff can subsequently discontinue and bring suit in the common pleas for his whole claim.^* Again, an action brought by a widow in her own name for the use of herself and children cannot be discontinued by her without their consent.^® g. Discontinuance after securing rule to open judgment. When the defendant in a judgment has secured a rule to open it, which has been signed and held under advisement, he cannot without discontinuing the proceeding under the rule file a bill for the same relief.^* And when a party discontinues a suit for the purpose merely of instituting another for the same cause of action elsewhere the court, on motion, will set aside the discon- tinuance and reinstate the former suit.^' Again, when the dis- continuance of one or more parties is desired the proper practice is to amend by striking out the name or names. ^' II. Nolle Prosequi. 10. Nature, (e) A nolle prosequi is an acknowledgment or agreement by the plaintiff, entered upon the record, that he will not further pros- ecute his suit as to the whole or a part of the cause of action ; or, as to some one of the counts in his declaration, or, as to some or one of the issues joined ; or, where there are several defendants, against some or one of them.'* A nolle prosequi is not regarded as a confession of the plaintiff that he has no cause of action, nor is it considered in the nature of a retraxit or release, for it may be entered as to one of several defendants, and the plaintiff may still proceed against the others; in which respect it differs from a judgment of non pros, whereby the plaintiff is put out of court as regards all the defendants.*" But it rather resembles a dis- continuance ; *^ for, when the plaintiff has misconceived his ac- e 9 Vale 26702. 54 Lamson Consolidated Store Co. v. Lavin, 13 Dist. 273. 55 Styles v. Penn. Sted Co., 7 Del. 456. 56 Freeman v. Lafferty, 207 Pa. 32. 57 McEvoy V. Cleveland, 3 Justice 45. 58 Walker v. Wiese, 4 Lack. Jur. 9. 59 2 Rol. Abr. 100, pi. S. Bing. Judg. 49. And see Hughes v. Moore, 7 Cr. 176; McLain v. Rutherford, Hemp. 47. 60 Hall V. Rochester, 3 Cow. 374; United States v. Linn, i How. 104. 61 Judson V. Gibbons, 5 Wend. 224. 7i8 Common Law Practice in Pennsylvania. tion, or made a mistake as to the party sued, he may enter a nolle prosequi as to the whole cause of action.®^ But in cases where both the parties are actors as in replevin or in a feigned issue,"' the plaintiff cannot defeat the suit by entering a nolle prosequi.'* FORM OF retraxit. A. B. ^ V. y In the Court of Common Pleas of County. C. D. J Term, 19 . No. And now (date), A. B., the plaintiff having filed his statement (date), comes in his own proper person into open court and saith he will not proceed in this case, and he confesses that he will not further prosecute his said suit against the said C. D., but from the same altogether withdraws himself. And he files this as his retraxit. (Signature of Plaintiff.) (Seal.) For greater safety let it be acknowledged before presenting it. On this day of , A. D. 19 , before me (a notary public or magistrate), personally appeared the above named A. B., and in due form of law acknowledged the above retraxit to be his act and deed. Witness, etc. And now (date), the court order that this retraxit be entered of record. 11. Withdrawal of part of an action. Should the plaintiff wish to withdraw part of the cause of ac- tion, contained in a single count, he may enter a nolle prosequi for that part, which will show on the record exactly what was submitted to the jury, and will be no bar to a subsequent suit.'^ Thus, in trespass, where the plaintiff declares that the defendant took and carried away the plaintiff's hay, grass and corn, he may enter a nolle prosequi as to the hay and grass, and proceed for the taking of the corn.'* 12. Withdrawal of some of the defendants. When too many persons are joined as defendants a nolle pros- equi may be entered as to some of them, if no injury can thereby 62 Beidraan v. Vanderslice, 2 R. 334; Weist v. Jacoby, 62 Pa. no. 63 Commonwealth v. Nesbit, 2 Pa. 16. 64 Freedly v. Mitchell, 2 Pa. 100. 65 Hess V. Heebie, 6 S. & R. 61. 66 I Saund. 207, note 2. Of Discontinuance and Noi,i,fi Prosequi. 719 be done to any of them.°^ Thus when several defendants have joined in an action of ejectment, a judgment of nol pros may be entered as to one of them providing the elements of contribution does not enter between them.*^ Likewise if there be a verdict against two where only one is liable a nol pros may be entered as to one and judgments may be entered against the other.** A nol pros may also be entered as to one of two defendants in replevin for a distress for rentJ" In assumpsit also against several if one of them be a feme covert, the plaintiff may enter a nol pros as to her/^ Likewise in trespass a nol pros may be entered as to one defendant only.'^ And if the action be for mesne profits, the plaintiff may settle with one of the defendants and enter a nolle prosequi as to him without discharging the other/' Again, if the jury find only as to a part of the defendants, the plaintiff may enter a nol pros as to the others.'* The reason of this seems to be, because such actions, being in their nature joint and several, as the plaintiff might, therefore, have originally com- menced his action against one only, and proceeded to judgment and execution against him alone ; so he may, after verdict against several, elect to take his damages against either of them.'^ And if an adult and minor are joined as defendants and joint tort feasors in an action quare clausum fregit, and the error is not discovered until after the verdict, the court may enter a nol pros as to the minor and permit the verdict and judgment to stand against the other.'* 13. In actions against husband and wife and other parties. Passing from the entry of nol pros in particular actions, we will consider the subject under other aspects and relations. Thus 67 Norman v. Hope, 2 Miles 142; Wolff v. Wilson, 28 Super. Ct. Sii, 517. See act April 12, 1858, i Purd. §4, p. 312. 68 Freedly v. Mitchell, 2 Pa. no. 69 Pearl v. Prosser, 6 Lane. Bar 194. 70 Harter v. Hicks, 3 Lane. L. Rev. 326. 72 Harter v. Hicks, 3 Lane. L. Rev. 326. 71 Budman v. Vanderslice, 2 R. 334; Weist v. Jacoby, 62 Pa. no; Grace v. Kurtz, I Phila. 105. 72 Nyman v. Sullivan, 3 Kulp 345. 73 Arundel v. Springer, 71 Pa. 398. See also Chambers v. Lapsley, 7 Pa. 24. 74 Ward V. Taylor, i Pa. 238; Chambers v. Lapsley, 7 Pa. 24. 75 Cridland v. Floyd, 6 S. & R. 413. 76 Crane v. Lynch, 27 Super. Ct. 565. 720 Common Law Practice in Pennsylvania. if a husband and wife are sued jointly in trespass but the evi- dence shows that the husband alone was guilty, a rule for a new trial after verdict for the plaintiff will be discharged on entering a nol pros as to his wife.'' More generally a nol pros is proper as to a married woman who is a joint defendant in an amendable action against whom judgment was erroneously en- tered." Likewise a nol pros may be entered against one of two who are sued jointly if he is not served and does not appear." So if one of two joint obligees have been discharged as a bank- rupt, the plaintiff may enter a nol pros as to him and proceed to trial against the other.*" So, too, a nol pros may be entered be- fore judgment as to a third person who did not enter into the con- tract,'^ though only one defendant is left.'^ On the other hand a nol pros may not be entered against one of two defendants in whose favor a judgment must be opened, on argument of a rule to open the judgment.*' Nor can the plaintiff in scire facias to revise a judgment enter a nol pros as to some of the terre- tenants served and proceed against the others.** If no declara- tion is filed in a cause until fourteen years after the service of the summons, it will be regarded as abandoned, on the defendant's motion, therefore it may be quashed and a judgment of nol pros entered against the plaintiff.*^ 14. If a discontinuance is entered instead of a nol. pros, the error may be cured by amendment.*^ Likewise a nol pros irregularly entered may be cured by amendment after judgment nunc pro tunc.*' Lastly defendants against whom judgment is docketed are not liable for costs of suit against others as to whom a nolle prosequi was entered.** J7 Mellersh v. Eden, 13 Dist. 13. 78 Gratz V. Philips, 2 P. & W. 410. 79 Hosie V. McCann, 2 Penny. 133. 80 Commonwealth v. Nesbit, 2 Pa. 16. 81 Ganzer v. Fricke, 57 Pa. 316. See Keller v. Labaugh, i Dist. 544. 82 Van Storch v. Heermans, 8 Luz. L. R. 54. 83 Weil V. Davis, 2 Luz. L. R. 41. 84 Maus V. Maus, 5 W. 35. 8s Waring v. Pennsylvania R. Co., 176 Pa. 172. 86 Harter v. Hicks, 4 Kulp 107. 87 Beringer v. Meanor, 85 Pa. 223. 88 Guie v. Ash, (No. 2), i Chester 400. CHAPTER XX. Of the Replication and Subsequent Pi,eadings. 1. Historical importance of chap- S. A replication de injuria and how ter. pleaded. 2. What is a replication and tra- 6. A special traverse and replica- verse and rejoinder. tion per fraudem. 3. Time for replying. 7. How want of replication could 4. When want of replication was be cured. not error. 1. Historical importance of chapter. While the statutory changes in pleading have overthrown the former methods described in this chapter of continuing the plead- ings through several stages, narrowing the field of dispute until the discovery of the true issue, yet it is believed that the chapter should be reproduced, partly as an aid to the student in under- standing the older cases which still contain the living law and which therefore must be read, and partly because the methods and terms here explained are still to some extent employed. 2. What is a replication and traverse and rejoinder.(a) Under the former method when the defendant had pleaded, either in abatement or in bar, by the way of confession and avoid- ance, as a release, the plaintifiF had the option of demurring to the plea — as being, in substance or form, an insufficient answer in point of law to the declaration — or of pleading to it, by way of traverse, or by way of confession and avoidance of its allega- tions; such pleading on the part of the plaintiff is called the replication. If the replication were by way of traverse (that is, in denial of the whole or part of the defendant's plea), it was, in general, necessary (as in the case of the plea) that it should tender issue. So, if the plaintiff demurred, an issue in law was necessarily tendered ; and, in either case, the result was a joinder in issue, on the same principles as heretofore stated with respect to the plea. But if the replication were also in confession and avoidance (as, that the release alleged in the plea was made by duress and force of imprisonment), the defendant might then, in a 7 Vale 21400. 721 46 722 Common Law Practice in Pennsylvania. his turn, either demur, or, by pleading, either traverse, or con- fess and avoid its allegations ; if such pleading took place it was called the rejoinder. In the same manner, and subject to the same law of proceeding, viz : that of demurring or pleading either in denial of the truth of the adverse allegation, or confessing and avoiding it, was conducted all the subsequent altercation to which the nature of the case might lead; and the order and denomina- tions of the alternate allegations of facts or pleadings throughout the whole series were as follows — declaration, plea, replication, rejoinder, surrejoinder, rebutter and surrebutter. After the surrebutter, the allegations of the respective parties, in the Eng- lish system of pleading, have no distinctive names, for, beyond that stage, as it is said, they never occurred in practice. And, in- deed, in those cases where the parties in pleading did actually arrive at the two last known stages of the system, that is, of re- butter and surrebutter, it was very seldom that either of these was a special allegation, or, in other words, contained anything more than a tender of, or joinder in issue. In our practice the issue was most frequently attained, either on a general plea to the declaration, or on a replication to the plea. 3. Time for replying. There was no time fixed upon by law for replying; when the defendant, therefore, had put in his plea, he might rule the plain- tiff to reply, in the same time and manner as directed by the rules of court, with regard to rules to declare and plead; or he might pray the court to grant a rule on the plaintiff to reply in a less time than was prescribed in their standing rules. If the plain- tiff were not ready to reply, within the time limited by the rule, he might apply to the court, and obtain an order for further time. But if he neglected to reply, within the time required by the rule, or order for further time, the defendant might sign a judgment of non pros. On the other hand, the plaintiff, on filing a replica- tion, without joining issue, that is, concluding with a verification, might enter a rule, requiring the defendant to rejoin ; or, if there were a new assignment, to plead thereto, in like manner as to the original declaration; and, in case of his neglect to comply with the rule, might have judgment in the same manner as on a de- fault for want of a plea. And so rules might be entered by each party, respectively, until an issue was attained, or one of them incurred a judgment by default. Or THE Replication and Subsequent Pleadings. 723 4. When want of replication was not error. When several pleas were pleaded, to one of which there had been no replication, and the cause had been tried without a joinder in issue upon that plea, the following distinction, made by the supreme court, will indicate whether this had produced any error in the record : Where the defendant had pleaded the gen- eral issue, and, with it, had pleaded specially a matter which might have been given in evidence under such general issue, the want of a replication to the special plea would not be error; in other words, if the latter plea could be stricken out of the record, without injury to the defendant, it would, if not conclusive with the court, operate with them as a strong auxiliary argument, where there were other grounds to overrule the objection.^ The entry on the docket, by the clerk, of the words "and issue," or "issues," at the close of the short minute of the pleadings, was considered to be a sufficient joinder of issue ; it was "always held to be a memorandum for the clerk to join the issue formally, the want of which, under such circumstances, was a clerical slip, and amendable.^ 5. A replication de injuria and how pleaded. The replication de injuria to a plea of son assault demesne, in assault and battery, confined the defendant to proof of an ex- cuse for the battery ; he could not give evidence, under it, in miti- gation of damages.' It was only proper, where the plea was in ex- cuse of the trespass ; it could not put in issue several facts well pleaded, nor could it traverse a question of title.* It might be pleaded in assumpsit, when it consisted merely of matter of ex- cuse or justification; but it could not be applied to the denial of a matter of title, interest, commandment, authority or matter of record.^ To a plea of justification, the plaintiff might reply, denying the defendant's authority, by protestation, and de injuria to the residue of the plea.® And this replication to a plea of justification, cast on the defendant the burden of proving so much of the plea as constituted a defense to the action.' As this 1 Reed y. Pedan, 8 S. & R. 263. * 2 Carl V. Commonwealth, 9 S. & R. 63. 3 Frederick v. Gilbert, 8 Pa. 454- 4 Wallace v. Hibbs, 4 Phila. 154; Hyatt v. Wood, 4 Johns. 150. 5 Lincoln v. Souder, 2 Clark 319; Wallace v. Hibbs, 4 Phila. 154. 6 Curry v. Hoffman, S Clark 274. 7 Erskine v. Hohnbach, 14 Wall. 613. 724 Common Law Practicb in Pennsylvania. replication went to the whole plea, it was bad where it caused several issues on the trial; it was only permitted where it an- swered a single fact pleaded, and thus joined issue; or where a number of facts were stated, all of which, taken together, were necessary to make up a single issue.* It could not be pleaded to an avowry in replevin.' If the defendant justified a supposed tres- pass, under authority of a statute, the plaintiff must reply de injuria;^" so, if the defendant justified under a warrant for fel- ony, issued by a justice, the plaintiflf, after protesting the war- rant, and its delivery to the defendant to be executed, might reply de injuria sua propria absque residua causa.'^ 6. A special traverse and replication per fraudem. On a special traverse, the issue was on the fact stated in the inducement; the matter denied under the absque hoc was admit- ted, except so far as the inducement amounted to a denial.^^ Where the inducement showed a defense, and the traverse, under the absque hoc, was not to an immaterial point, the plaintiff could not reply in confession and avoidance of the inducement;^' but where the plea contained a special traverse of an immaterial aver- ment, the plaintiff might pass it by, and traverse the inducement to the plea.'* A replication per fraudem, might allege the fraud and crime generally, without going into particulars ;'^ but, though the replication per fraudem need not set forth the particulars of the alleged fraud, where it consisted in obtaining the instrument ; yet, where the deed might be good, notwithstanding the alleged fraud, the particulars must be shown.'^ A replication to a plea of attachment of the note sued on, must aver that the payee's interest had been previously vested in the plaintiff." To a plea setting up a verdict in favor of the defendant in a sheriff's inter- pleader, the plaintiff might reply a matter which avoided the 8 Wallace v. Hibbs, 4 Phila. 154. 9 Hopkins v. Hopkins, 10 Johns. 369; Jones v. Kitchin, i Bos. & Pul. 76; Wallace v. Hibbs, 4 Phila. 154; Fredericks v. Royal, 7 W. N. C 64. 10 Comly V. Lockwood, 15 Johns. 188. 11 Stickle V. Richmond, I Hill ^^. 12 State Mutual Fire Insurance Co. v. Arthur, 30 Pa. 315. 13 Main v. Bayard, 9 Phila. 239. 14 Wheelwright v. Beers, 2 Hall 391. 15 Sherwood v. Johnson, I Wend. 443. 16 McHenry v. McHenry, 14 L. I. 293. 17 Doty V. Sturdevant, i Pa. 399. Of the Replication and Subsequent Pleadings. 725 ground of the verdict, but which did not then exist.'' A matter in avoidance of a plea of the statute of limitations, must be spe- cially replied.'^ 7. How want of replication could be cured. Where there was a plea in confession and avoidance, the plain- tiff could not be forced to trial or non-suit, without a replication, although a rule of court dispensed with one, where a substantial issue was raised by the pleadings.^" If the defendant, however, did not object to go to trial without a formal joinder of issue, and had the chance of a verdict, he could not afterwards object.^^ Although, after trial on the merits,. the court would not listen to an objection of want of replication or issue, yet would not intend that a plea of law was disposed of, where the verdict was only on the issue of fact, and judgment is on the verdict: hence, an ex- ecution on such judgment could not be sustained.^^ By replying to a dilatory plea, which was defective for want of an affidavit, the plaintiff waived the defect, and could not ask judgment for want of an affidavit.^^ 18 Ashton V. Mann, 3 Phila. 215. 19 Webster v. Newbold, 41 Pa. 482. 20 Maxwell v. Beltzhover, 9 Pa. 139. 21 Clemens v. Hayden, 4 Pa. 138; Bricker v. Lightner, 40 Pa. 199. 22 Beale v. Buchanan, 9 Pa. 123. 23 Casporus v. Jones, 7 Pa. 120. CHAPTER XXI. Op Demurrer. 1. Nature. 9- Hearing of demurrer when 2. Reasons for demurring. there are several issues. 3. General and special demurrers. 10. Judgment may be interlocutory 4. Mode and time of filing. or final. 5. Plea and demurrer cannot be 11. Amendment of demurrer. joined. 12. What defendant may do when 6. Second demurrer cannot be demurrer is overruled. filed. 13. Demurrer in equity. 7. Effect of demurrer, i4- Costs. 8. Whole record is considered. I Nature, (a) A demurrer is the proper way to raise the question of the sufficiency of the plaintiff's statement.^ A motion for a non-suit is in effect a demurrer,^ and a compulsory non-suit is substantially the same as a demurrer to the evidence except that the judge cannot give judgment for the defendant, it admits all the facts that the jury might have inferred from the testimony.^ And when a statement contains several good points a demurrer to only one will be overruled.* All things recited by way of in- ducement or charged in the declaration to have been done by the defendant, must be accepted as true on demurrer,' but not legal conclusions.^ Again, on demurrer the court will look only to that portion of the record, on which the demurrer arises, and not to the collateral facts ;' it will not look into the record to adjudge in favor of an apparent right in the plaintiff;^ but on demurrer to a 7 Vale 21415. 1 Fox V. Brinton, i Dist. 608; Pittsburgh v. Pittsburgh R. Co., 234 Pa. 223; Kramer v. Pennsylvania R. Co., 4 C. C. 60; Gorman v. Bigler, 8 Super. Ct. 440; Coble v. Zook, 6 Super. Ct. 597. 2 Miller v. Healer, 100 Pa. 585; Hill v. Nation Trust Co., 108 Pa. i; Bradly v. Potts, 15s Pa. 418, 427. 3 Bastian v. Philadelphia, 180 Pa. 227. 4 Page V. Koons, 32 C. C. 496. 5 Wilder v. McKee, in Pa. 335; Enterline v. Comrey, 155 C. C. 627. 6 Rozelle v. Rhodes, 116 Pa. 129, aflfg. 2 C. C. 5. 7 Steckel V. Steyer, i North. 263. 8 Palethrop v. Schmidt, 12 Super. Ct. 214. 726 Of Demurrer. 727 a mandamus the whole record is before the court and judgment will be given accordingly.* "A demurrer raises the question of the sufficiency of the plea, and final judgment can be given for the defendant thereon, or the demurrer can be overruled, with leave to the defendant to file a replication and put the questions raised by the plea at issue."^" A demurrer to the statement filed by the plaintiff on appeal from a justice admits only the facts set forth, it does not admit essential facts omitted from the statement though the transcript shows they were averred before the justice.^^ An affidavit of defense raising a pure point of law is in the nature of a demurrer ;^^ so is an affidavit which avers that the plaintiff's statement sets forth no liability on the part of the de- fendant, and is sufficient to prevent a summary judgment.^* And when an affidavit of defense is of this nature a demurrer filed thereafter will not be overruled if the question be jurisdictional and can be determined by an inspection of the record.^* But when an affidavit of defense denies the allegations of the plain- tiff and sets out facts in defense of the claim, it cannot be treated as a demurrer.^^ An affidavit may be withdrawn and the same point raised by demurrer.^* And a judgment entered for the de- fendant in his plea in bar, which is treated as a demurrer to the plaintiff 's statement without objection from the plaintiff, will not be disturbed "because the plea was not disposed of according to the usual rules of pleading."^' DEMURRER TO THE DECI,ARATI0N OR STATEMENT. If the statement be insufficient for matter of form, you may file the following demurrer : A. B. 1 V. > Common Pleas, No. . Term, 1912. No. C. D. J 9 Commonwealth v. Pennsylvania R. Co., 6 Dist 266. ID Moschzisker, J., Matthews v. Morris Glass Co., 14 Dist. 399, 301. 11 Palethorp v. Schmidt, 12 Super. Ct. 214. 12 Sparks V. Flaccus Glass Co., 16 Super. Ct. 119. 13 Tradesmen's Bank v. Johnson, i Dist. 445; Byrne v. Hayden, 124 Pa. 177- 14 Paltrowitz v. Lucknow Steel & Iron Co., 32 C. C. 78. 15 Heffner v. Pennsburg Mutual Horse Ins. Co., 11 Montg. 35. But see Robinson v. Montgomery, 3 Dist. 661. 16 Paltrowitz v. Lucknow Steel & Iron Co., 32 C. C. 78. 17 Yoder v. Cole, 232 Pa. 509. 728 Common Law Practice in Pennsylvania. And now, , the defendant, by E. F., his attorney, de- murs to the statement filed in the above case, and assigns the following causes of demurrer : 1. That no day or time is alleged in said .statement at which the cause of action is supposed to have accrued. 2. That the statement is not signed. 3. That the statement is not supported by an affidavit of the truth of the fact alleged as a basis of claim. 4. That the said statement is in other respects uncertain, informal, and insufficient. E. F., Attorney pro Defendant. (Add affidavit that the demurrer "is not interposed for delay.") The court, if it sustains your demurrer, will allow the other side to amend. If the statement be clearly insufficient in law for matter of substance, and in your judgment the plaintiff has no cause of action, file the following demurrer: A. B. V. CD. Common Pleas, No. . Term, 1912. No. And now, , the said defendant, by E. F., his attorney, comes and says that the statement is not sufficient in law to maintain the plaintiff's action, and he demurs thereto, and in support of said demurrer the defendant assigns the following reasons (here state all grounds of demurrer). E. F., Attorney pro Defendant. (Date.) (Add affidavit. See preceding form.) A. B. ^ V. V INDORSEMENT. Common Pleas, No. . Term, 1912. No. CD. J Demurrer to statement. E. F., pro Defendant. (Date.) When the defendant has filed his demurrer, he should serve Of Demurrer. 729 a copy upon the other side, order it down on the next argument list, and prepare his paper-books sur demurrer. 2. Reasons for demurring, (b) For what reasons or causes can the defendant demur? To a statement which states no cause of action against two of three defendants;^' for a misjoinder by an amended statement,^* in an action of assumpsit in which the plaintiff has not tendered to the defendant his promissory note which his statement should show he has done.^° He can also demur to a statement which con- tains an afifidavit having unexplained interlineations;^^ also to a statement charging the defendants with negligence as individuals, as executors, as individuals and executors, but not informing the defendants in what manner they are charged ;^^ and to a state- ment in an action in which a tort is set out and claim for dam- ages because of the defendant's fraud ;^^ also to a statement in which the plaintiff failed to state in a replevin bond the value of the goods ;^* also objections on the face of a mechanic's claim ;^^ also in an action for personal injuries against a street car com- pany which fails to aver the car number and time of day of the accident.^* Turning to the negative side a demurrer does not lie on the ground of privilege to a declaration in libel where notice is averred."^ Again, that an amendment introduces a new cause of action is not ground of demurrer.^* And if the defendant in an attachment execution pleads his exemption, and the plaintiff's replication sets forth a former allowance, the defendant should rejoin, he cannot demur.^* Nor is a defective protestando ground b 7 Vale 21409. 18 Ewing V. Dampman, i Chester 443. 19 Spaulding v. Barber, 9 W. N. C. 253. 20 Rennyson v. Reifsnyder, i Dist. 758. 21 Stillwell V. Smith, 18 York 99. 22 Skivington v. Richards, 208 Pa. 385. 23 Albertson Trust Co. v, Freedley, 18 Montg. 183. 24 Krumbhaar v. Stetler, 10 C. C. 12. The defect is cured by a ver- dict. Ibid. 25 Bernheisel v. Smothers, 5 Super. Ct. 113. Formal defects are re- garded as waived after a trial on the merits of the claim. Ibid. 26 Costigon V. Phila., Bristol & Trenton St. R., 16 Dist. 868. 27 Mclntyre v. Weinert, 19S Pa. 52. 28 Moore v. Black, 32 L. I. 13- 29 Robinson v. Fairlamb, i Del. 375. 30 Burk V. Bear, 3 Clark 355. 730 Common Law Practice in Pennsylvania. of demurrer, it does not vitiate the plea.^" And in assumpsit against husband and wife for a debt contracted by the latter, a plea of non-assumpsit by the husband alone is not demurrable,'^ nor does a demurrer reach the objection that the suit was begun on the same day the cause of action accrued.'^ Nor is the issuing of the writ in trespass and filing the statement in assumpsit good ground of demurrer.^' A demurrer to the statement in an action of replevin for property distrained for rent is bad when the defendant has made avowry and cognizance.'* A misnomer of defendants must be pleaded in abatement and not by way of demurrer.'" Nor can the statute of limitations be raised by de- murrer either at common law or under the procedure act of 1887.'* The falsity of a plea cannot be the subject of a demur- rer unless apparent on its face.'' Likewise in ejectment, the sufficiency of the statement cannot be questioned on a rule to vacate the summons, this question can be raised only by demur- rer.'* A general demurrer to a plea will not be allowed, unless it is manifestly frivolous.'" 3. General and special demurrers. A demurrer is either general or special. A general demurrer excepts to the sufficiency in general terms, without showing spe- cifically the nature of the objection: a special demurrer adds to this a specification of the particular ground of' exception. A general demurrer is sufficient, where the objection is on matter of substance ; a special demurrer is necessary, where it turns on matter of form only; that is, where, notwithstanding such objec- tion, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause.*" In Philadelphia "the 31 Darlington v. Ervin, 7 W. N. C. 456. Contra, — Wireman v. Ervin, 37 L. I. 147. 32 Commonwealth v. Smith, 3 Leg. & Ins. Rep. 10. 33 Hitz V. Johnson, 8 Lane. L. Rev. 317. 34 Lutz V. Browne, 10 Dist. 355. 35 Roberts v. Heisey, 12 Dist. 130. 36 Barclay v. Barclay, 206 Pa. 307; Daley v. Henry, 31 P. L. J. 313. Contra,— Seiberling v. Charleroi Gas Co., 11 Dist 458. 37 Watson V. Mercer, 9 Lane. Bar 97. 38 Colture v. Birthoff, 6 Lack. Jur. 211. 39 Wildey v. Hoover, i W. N. C. 133. See Withers v. Dearie, 21 L. I. 300. 40 Staph, on Plead. (9th Am. Ed.) 139; Commonwealth v. Cross-Cut Railroad Co., 53 Pa. 62. Op Demurrer. 731 defendant may enter a rule for a more specific statement by al- lowance of the court; or may demur to the statement." And rules for a more specific statement, and for judgment for want of a sufficient affidavit of defense or reply, and demurrers, shall set forth the particulars wherein the pleadings are deemed to be insufficient."*^ When objections, which are well founded, though merely formal, are stated specifically as causes of de- murrer, and it is shown in what respect the pleading is defective or informal,*^ the party taking them is entitled to the benefit of the exceptions ; and the cause may be decided on them alone.*^ Where the facts averred in the statement would not, if admitted, entitle the plaintiff to judgment, the defendant should demur.** If a declaration be good in sub- stance, but defective in form, the defect cannot be taken advan- tage of, on the trial, by a prayer for instructions to the jury. A defect in substance is ground for arrest of judgment ; a defect in form only is cured by verdict.*^ The filing of two declarations in the same cause is ground of demurrer.*^ Advantage can be taken of the want of an averment of the loss of an instrument, so as to dispense with profert, only by way of special demurrer;*'' also an objection to the inconsistency be- tween two counts in a statement.*^ An objection to a statement of claim for misjoinder of counts or causes of action must be made by demurrer and cannot be considered on objections to evi- dence or after trial on the merits.** 4. Mode and time of filing. (c) While the demurrer is under consideration the time for filing an affidavit of defense is correspondingly extended and a judg- ment entered for want of an affidavit of defense is a nullity.** c 7 Vale 21418. 41 Rules Nos. S3, 70. 42 I Saund. 161, note i, i Saund. 327, note 3. 43 Lockington v. Smith, Pet. C. C. 466, 475. 44 Hobensack v. Hallman, 17 Pa. 158. 45 Smith v. Latour, 18 Pa. 243; Haldeman v, Martin, 10 Pa. 369. 46 Gould V. Crawford, 2 Pa. 89 ; Underwood v. Warner, 3 Phila. 414. 47 Boyd V. Commonwealth, 36 Pa. 355. 48 Schmidt V. Owens, 10 W. N. C. 5. 49 Flowers v. Phenicie, 19 Dist. 1133; Martin v. Stille, 3 Wh. 337; Burkholder v. Beetem, 65 Pa. 496; Pennsylvania R. Co. v. Bock, 93 Pa. 427; Hiimbird v. Davis, 210 Pa. 311; Schmidt v. Owens, 10 W. N. C. 5; Whitney v. Haskell, 216 Pa. 622. 49 Tradesmen's Sav. Bank v. Gilings, 3 Dist. 823. 732 Common Law Practice in Pennsylvania. When the defendant in assumpsit chooses to demur to the suffi- ciency of the statement, and the court finds that it is sufficient, judgment may be entered against the defendant without giving him leave to file an affidavit of defense.*" On demurrer to one of the several pleas and joinder of issue on the others, if the court sustain the plea the defendant is entitled to final judgment on the whole record.*^ And on a demurrer to a replication if both the replication and the plea be bad, judgment will be given for the plaintiflF.°^ It is too late to demur after the case has been submitted by the parties on the testimony and given to the jury.*^ Again when the defendant's demurrer to the statement is over- ruled and the plaintiff does not request judgment quod recuperet ' it is not error to proceed to trial on a plea to the merits when no objection was taken to such a course in the court below.^* 5. Plea and demurrer cannot be joined.(d) A plea and demurrer cannot be joined,*^ nor a plea and demur- rer to the same matter be allowed,^* nor can the defendant file a demurrer and affidavit of defense at the same time and have a disposition of the former before he can be required to file a plea ; he must elect his defense in the beginning.^' Indeed, the filing of an affidavit with a demurrer to the plaintiff's statement of his claim has been treated as an abandonment of the demurrer."* The court, however, may in its discretion allow the defendant to withdraw his affidavit, containing demurrable matter, and file a demurrer,*^ or to withdraw his plea and demur, yet the practice d 7 Vale 21420. so Bridgeman Bros. Co. v. Swing, 205 Pa. 479. 51 Philadelphia v. Wistar, 92 Pa. 404. 52 Pennsylvania R. Co. v. Wilson, 3 Cent. 915. 53 Gorman v. Bigler, 8 Super. Ct. 440. See Cohle v. Zook, 6 Super. Ct. 597- 54 Helfrich v. Frick, 6 At. 89. 55 Lutz V. Browne, 10 Dist. 355. 56 Burke v. Wil., Bait. & Southern R., i Lack. Jur. 260. 57 Heller v. Royal Ins. Co., 151 Pa. loi; Pittsburgh, Chicago & St. Louis R. Co. V. Hayes, 13 Dist. 671; Marshall v. Katz, 18 York 26; Schoenaman v. Schambach, 18 York 124 ; Hanover Fire Ins. Co. v. Eason, 17 Dist 915. But in Duffy v. Mell, 13 Dist. 143, 144, Criswell, P. J., said: "The practice of incorporating a demurrer in the defendant's answer to the plaintiff's statement appears to be proper and is approved in Robin- son V. Montgomery, 3 Dist. 661 ; and Heller v. Royal Ins Co., 151 Pa. loi." 58 Hanover Fire Ins. Co. v. Eason, 17 Dist. 915. 59 Ewald V. Coe, 9 Del. 452. Of Demurrer. 733 is not to be commended.^" Under the procedure act of 1887 it has been held that the defendant may demur as well as plead the statute of limitations.®^ When a demurrer and answer are filed to a petition for a bill of review the answer may be withdrawn, except that portion which demurs, and the demurrer will be al- lowed to stand as having been filed after the withdrawal of the answer.'^ 6. Second demurrer cannot be filed. A second demurrer does not lie after the first has been over- ruled.*' It is good practice to incorporate a demurrer in the de- fendant's affidavit and defense.** But after an affidavit has been filed it is too late to file a demurrer.*^ Again, when an amend- ment is made, but without new matter, a demurrer cannot be filed if the defendant has already filed a plea ;** nor can he put in a de- murrer to the original statement after it has been amended.*^ Nor can the defendant after he has gone to trial upon a replica- tion on the record and a verdict has been rendered demur there- to.** And a demurrer to the sufficiency of a justice's transcript two years after the appeal is too late.*^ 7. Effect of demurrer. (e) A demurrer admits all such matters of fact as are sufficiently pleaded, or which, if informally pleaded, are not specially ex- cepted to on that ground ;'" but not inferences, arguments or con- clusions from them.'^ It admits a positive denial in the plea to be true, though it may contain a negative pregment.^^ And, if e 7 Vale 21419. 60 Burke v. Wil., Bait. & Southern R., 5 Lack. Jur. 260. 6r Crawford v. Schaeflfer, 8 Dist. 32. 62 Finley's Estate, 196 Pa. 140. 63 Pollock V. Chapman, 8 W. N. C. 433- 64 Duffy V. Mell, 28 C. C. 365. 65 Wagner v. Smith, 11 Dist. 662; Heller v. Royal Ins. Co., 151 Pa. loi. See Robinson v. Montgomery, 14 C. C. 106. 66 Burke v. Wil., Bait. & Southern R., 5 Lack. Jur. 260. 67 Commonwealth v. Housekeeper, 2 Leg. Chron. 289. 68 Commonwealth v. Risdon, 8 Phila. 23. 69 Rawlings v. Miners' Mills Borough, 12 Luz. Rep. 122. 70 Commonwealth v. Commissioners of Allegheny, 37 Pa. 277; Ell- maker V. Franklin Fire Ins. Co., 6 W. & S. 445- 71 Kaufman v. Kaufman, 222 Pa. 58; Getty v. Pa. Institution, 194 Pa. S7I- 72 Commonwealth v. Primrose, 2 W. & S. 407. 734 Common Law Practice in Pennsylvania. the plea allege fraud in the plaintiff, and such fraud would be a defense, there can be no recovery, on demurrer ;^^ but it is no admission of a fact, not well pleaded/* A speaking demurrer, or one that sets up grounds of demurrer dehors the declaration, is bad, and will not be entertained.'" 8. Whole record is considered. It is also a rule that, on demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to if^ Thus, on demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but the plaintiff ;'' provided, the declaration be good; but if the declaration also be bad in substance (and not in form merely),'* then, upon the same principle, judgment would be given for the defendant.'* g. Hearing of demurrer when there are several issues. Where there are several issues, both in law and in fact, the plaintiff may, without waiting for a decision on the issues in law, go to trial on the issues in fact, and, at the same time have con- tingent damages assessed on the counts in his declaration, to which the demurrer applies; or he may await the result of the issue in law, and then proceed to trial, if necessary.*" It has been said to be advisable, to determine the demurrer first; for, if it go to the whole cause of action, and is determined against the 73 Postmaster General v. Ustick, 4 W. C. C. 347. 74 Fisher v. Lewis, i Clark 422; Commercial Bank of Manchester v. Buckner, 20 How. 108; Greathouse v. Dunlap, 3 McLean 303. 75 Wyoming County v. Bardwell, 84 Pa. 104; Wingert v. Continental Life Insurance Co., i W. N. C. 72 ; Dubois v. New York & Harlem Rail- road Co., I N. Y. Leg. Obs. 362. 76 Murphy v. Richards, 5 W. & S. 279; Hall v. Hurford, 2 Clark 291. li a plea to the whole declaration be bad as to one of the counts, there must be judgment for the plaintiff on demurrer. Miller v. Merrill, 14 Johns. 348. 77 Barnett v. Barnett, 16 S. & R. 51 ; Commonwealth v. Pittsburgh & Connellsville Railroad Co., 58 Pa. 26. 78 Allen V. Crofoot, 7 Cow. 46; Tubbs v. Caswell, 8 Wend. 129; Rob- erts V. Kelly, 2 Hall 307. To invoke this rule, the fault in the prior pleadings must be one that is fatal on general demurrer, and not cured by a verdict. Jackson v. Rundlet, i W. & M. 382. 79 Wyoming County v. Bardwell, 84 Pa. 104. 80 2 Saund. 300, note 3. Of Demurrer. 735 plaintiff, it is conclusive; and there is no occasion afterwards to try the issue in fact ; whereas, if the issue in fact be first tried and found for the plaintiff, he must still proceed to the determination of the demurrer, and if that be determined against him, he will not be allowed his costs of the trial of the issue in fact, but final judgment will be entered upon the demurrer against him, not- withstanding a judgment on the issue of fact in his favor.^^ If the issue be tried before the demurrer is argued, the damages are said to be contingent, depending upon the event of the demurrer, and it is necessary for the jury to assess contingent damages; and the award of the venire is tam quam, that is, as well to try the issue, as to inquire of the contingent damages.*^ But not- withstanding the general right of the plaintiff to pursue which- ever course he may think proper, yet, in many cases, where there have been issues in law and in fact upon the same record, the de- murrer has been ordered to be first argued, in order that the parties might not go to the trial of the issue, under the necessity of assessing the contingent damages ; but that the judge who may have to direct the jury may do so without hesitation as to the final measure of damages.^' It is the better practice, however, first to try the issue of fact, and afterwards to determine the question raised by the demurrer, which then becomes matter of substance, inasmuch as the right to withdraw the demurrer and plead over cannot be exercised after a verdict.** lo. Judgment may be interlocutory or final.(f) Judgment upon demurrer is interlocutory or final, in the same manner and in the same cases as judgment by default.*^ After judgment on demurrer, the defendant cannot move to arrest the judgment, for an exception that might have been taken on argu- ing the demurrer, but he may for a fault arising on the writ of inquiry or verdict.** If a defendant plead several pleas to the same several counts of a declaration, and the plaintiff demur to some of the pleas, and take issue upon others, and the defendant succeeds on any of his pleas, and that plea be an answer to the f 7 Vale 21422. 81 See Willard v. Morris, 2 P. & W. 480. 82 2 Saund. 300, note 3. 83 See Eckart v. Wilson, 10 S. & R. 52. 84 See Marseilles v. Kenton, 17 Pa. 248. 8s Tyler v. Hand, 7 How. 573- 86 Commonwealth v. Davis, 4 Phila 95. 736 Common Law Practice in Pennsylvania. whole action, the plaintiflf shall not have judgment upon the issues in fact, should they be found for him; but the only judg- ment that shall be entered is nil capiat per breve. '^ But where three pleas and demurrers were filed to the same matters, con- tained in one count, without leave of the court, the pleas, on mo- tion, were stricken oiif.'* Formal defects in a mechanic's claim, in strict practice, ought to be raised by demurrer, or by moving to strike off the lien.*' Where judgment is given in favor of a plaintiff, on a demurrer to a plea in bar, it should be a judgment quod recuperet, and not quod respondent ouster; but if the lat- ter judgment be entered, it is an error of which the defendant cannot complain, for it is in his favor.^" Where the action sounds in damages, as in covenant, trover, trespass, &c., judg- ment for the plaintiff on demurrer is interlocutory, and it is necessary, before final judgment, that damages should be as- sessed by a jury; and until final judgment, a writ of error cannot be taken.°^ An entry of an order by the court on the hearing of a demur- rer, "demurrer sustained," is not a final judgment, and the pro- thonotary may not enter judgment for the defendant on the prae- cipe of an attorney."^ The rule is to allow the plaintiff to amend his declaration after a demurrer has been sustained when it is not so radically defective as to be manifestly incapable of amend- ment."^ But when a judgment is entered for the defendants on a demurrer to a statement in trespass on the ground that the acts were not joint, the judgment is final and ends the case, and the court has no authority, thereafter, to allow an amendment of the record by striking therefrom the name of one of the parties."* II. Amendment of demurrer, (g) After demurrer, general or special, it is said to be usual to give the other party leave to amend ; and it has been given, even after demurrer argued, but before judgment, where the justice of the g 7 Vale 21422. 87 I Saund. 80, note I ; Clearwater v. Meredith, i Wall. 26. 88 Underwood v. Warner, 3 Phila. 414. 89 Lybrandt v. Eberly, 36 Pa. 348. 90 Bauer v. Roth, 4 R. 83. 91 Logan V. Jennings, 4 R. 355. 92 Covey V. Del., Lack. & Western R., 14 Dist. 512. 93 Ibid. 94 Green v. Worth Brothers Co., 223 Pa. 604. Of Demurrer. 737 case required it,®^ upon payment of costs. It has been refused, however, to a plaintiff in a qui tam action f^ in an action against bail f and in hard actions ;'* and to a defendant, after the plain- tiff had lost trial."^ Under particular circumstances, also, the party has been allowed to withdraw his demurrer, on payment of costs, and plead de novo, even after argument ;^'"' but not in a case where the court are of opinion, that the party demurring could not plead successfully.^"^ So, if there be issues in law and in fact, and the latter be tried first, and contingent dam- ages assessed as to the demurrer, the court, it seems, will not either allow an amendment, or the demurrer to be withdrawn.^"^ If the plaintiff really have a good cause of action, he should apply to the court for leave to amend, during the term, and before judg- ment on the demurrer is entered.^"^ The usual course is for the court, except under peculiar circumstances, to proceed after ar- gument to enter judgment on the demurrer.^"* 12. What defendant may do when demurrer is overruled. Courts do not look with favor on a defendant who files a de- murrer and, when that fails, set up another defense and ask the court to open judgment and give them a chance before a jury.^"^ But if he has a meritorious defense and the mistake was due to his counsel, judgment will be opened.^"* And when the defend- ant demurs generally to the plaintiff's statement without any joinder of issue and the demurrer is set down for argument and the plaintiff moves to amend if the demurrer is sustained without further order except a refusal of the proposed amendment, a 95 Craig v. Brown, Pet. C. C. 442. 96 Evans v. Stevens, 4 T. R. 228. 97 Saxby v. Kirkus, Sayer 117. 98 I H. Bl. 37- 99 Hard. 171 ; Philadelphia v. Wistar, 6 W. N. C. 136. 100 King v. Mayor of Stafford, 4 T. R. 690; Giddings v. Giddings, Sayer 316; Hunt v. Puckmore, Barnes 155; Alder v. Chip, 2 Burr. 756; Anon., 2 Wils. 17s ; Ayres v. Wilson, I Doug. 309 ; Barnfather v. Jordan, 2 Doug. 434- loi Broadwell v. Denman, 27 N. J. (Law) 278. 102 Robinson v. Rayley, i Burr. 316. 103 Wood v. Anderson, 25 Pa. 409. 104 Young v. Parham, i Phila. 289. See also Stephens v. Myers, 12 Pa. 302- IDS Porter v. Ryan, 9 Del. 224. 106 Ibid. 47 > ' ■ ■ 738 Common Law Practice in Pennsylvania. judgment for the defendant entered by the prothonotary on prae- cipe is irregular and will be stricken off."' All further proceed- ings are stayed by a demurrer until the disposition of the ques- tions thereby raised; a judgment therefore taken in the interim will be stricken off."' And if a party, after judgment on demur- rer is given against him under leave of court, amends the de- murred pleading, he acquiesces in the judgment on the demurrer, and will not be permitted to assign the judgment for error on ap- peal, especially when no exception has been taken.^"^ 13. Demurrer in equity. (h) Under the equity rules of 191 1 all defenses iti equity must be made by answer or demurrer, all issues of fact by answer.^^" But objections to the jurisdiction may be raised at any time be- fore the findings of fact and conclusions of the bill by demur- rer.^^^ Again a demurrer to a bill or interrogatories must allege the particular sections in which the faults occur ;^^^ and a demur- rer is bad which sets out facts that are not in the bill.^^' Unnec- essary recitals in a bill should be corrected by exceptions and not by demurrer.^^* But when laches in presenting a claim appears on the face of the bill advantage may be taken by demurrer ;^*^ in some cases, however, the question of laches must be developed by the evidence and not by demurrer.^^® Again, when a bill is so framed as to show there was a legal presumption of the pay- ment of the debt in controversy, the objection can be raised by demurrer, otherwise if it does not appear on the face of the bill.^^' And in a bill to collect from purchasers of stock unpaid sub- h 7 Vale 21426. 107 Covey V. Del., Lack. & Western Co., 14 Dist. 512. 108 Sinclair v. Evans, 5 Dist. 384. 109 Davis V. Fleshman, 232 Pa. 409. no Rules 31, 37; Cairns v. Ingram, 8 Super. Ct. 514; Moore v. Bush, 5 Dist. 141. See Chap. 3, §21, for the act of 1907 regulating the use of demurrer in equity cases. 111 Owens V. Goldie, 213 Pa. 579. See rule 31. 112 Brady v. Standard Loan Association, 14 W. N. C. 419; Moyer v. Livingood, 2 Wood 317. Contra,— Boardman v. Keystone Watch Co., 8 Lane. L. Rev. 25. 113 Mengel v. Lehigh Coal & Nav. Co., 24 C. C. 152. 114 Shepp V. Norristown Pass. R. Co., 10 Montg. 41 . 115 Bottin V. Martin, 10 Lane. L. Rev. 208. 116 Pennsylvania R. Co. v. Reading Paper Mills, 149 Pa. 18. 117 Hayes' Appeal, 113 Pa. 380. Ol? DUMURREJR. 739 scriptions the defendants can demur if the bill does not allege they are holders for value with notice."® Lastly, a demurrer will be allowed for want of proper parties and leave given to amend when the bill shows that other persons have an interest though specific relief is not prayed against them.^^" A demurrer admits the rights set up in a bill.^^° Also aver- ments but not argumentative conclusions or doubtful infer- ences, ^^^ nor the law of another state set forth in vague and gen- eral terms. ^^^ If a demurrer to a bill be sustained with leave to amend by a certain date on the expiration of the time without amendment, the bill will be dismissed.^^^ And if the facts stated in the de- murrer do not appear with certainty on the face of the bill, they will be considered on demurrer as dehors the record. ^^* Lastly, a demurrer that the court had jurisdiction of the land in contro- versy in a previous suit will not be sustained if an inspection of the record shows that only a part of it was controverted.^^' If a defendant both answer and demur, the demurrer is over- ruled by the answer without prejudice to the defendant at the final hearing.^^^ "The defendant may, at any time before the bill is taken or confessed, or afterwards, with the leave of the court, demur to the whole bill or to part of it, and he may demure to part and answer as to the residue."^^^ Nor can demurrer be filed unless supported by an affidavit that it is not interposed for delay.^^^ If a demurrer is allowed the court may, in its discre- tion, on the plaintiff's motion, allow him to amend his bill ;^^' if a demurrer is overruled, unless the court shall be satisfied that it ii8 Finletter v. Appleton, 195 Pa. 349. See also Bradshaw v. Brad- shaw, 9 Dist. i. 119 Del. River Quarry & Construction Co. v. Bethlehem & Nazareth Street R. Co., 7 North. 194. 120 Bitting's Appeal, lOS Pa. 517; Wood v. Hecksher, 10 Montg. 178; Piatt V. Barcroft, 4 Phila. 67. 121 Getty V. Pennsylvania Institution for the Blind, 194 Pa. 571. 122 Stockton V. Lehigh Coal & Nav. Co., 14 Phila. ^^. 123 Osborn v. HoUenback, 3 Kulp 138. 124 Williamson v. Smith, 4 Dist. 307. 125 Love V. Robinson, 213 Pa. 480. 126 Barbe/s Appeal, 119 Pa. 413; Casselberry v. Citizens' Pass. R. Co., 6 Dist. so; York, Susq. & Western Coal Co. v. Spencer, 3 Dist. 694. 127 Equity rule 31 ; Venango County v. Penn Bridge Co., 14 Dist. 221. 128 Equity rule 32. 129 Equity rule 35. 740 Common Law Practice in Pennsyi Common Pleas. Term, 1912. No. ^- J . And now (date), on motion of C, plaintiff's (defendant's) attorney, the court grant a rule to take the deposition of a sick (and going) witness on behalf of plaintiff (defendant) before any magistrate, notary public, or commissioner in Philadelphia County, on (twelve) hours' notice to defendant (plaintiff) or his attorney. Attach to this an affidavit setting forth the special facts and circumstances of the case which require you to take the deposi- tion on less than the usual notice. Then indorse the papers : A. -| V. > Common Pleas, No. , Term, 1912. No. B. J Rule to take depositions on behalf of plaintiff (defendant) on (twelve) hours' notice to defendant (plaintiff) or his attor- ney, and affidavit in support of said rule. 3. When the rule may be granted. In scire facias against a garnishee in foreign attachment a rule 8 Hopper v. Williams, 2 Clark 447. 9 Martin v. Kaffroth, i6 S. & R. 120; Watson v. Brewster, I Pa. 381. ID Keller v. Nutz, s S. & R. 246. 11 Act 26 February, 1831, P. L. 92, 2 Purd. §2, p. 1488. 12 Lyttle V. Denny, 222 Pa. 395. 746 Common Law Practice in Pennsylvania. may be granted on notice to the garnishee.^^ A rule will not be granted to take the deposition of the opposite party simply be- cause the evidence required is principally within his knowledge.^* Thus when the defendants denied the quantity and quality of merchandise in controversy, the plaintiffs were permitted to take the defendant's depositions before trial to show to whom they sold the lumber.^^ Again, the plaintiff was allowed to compel one of several co-defendants to testify before the examiner as if under cross-examination.^" An attachment will not be allowed against a physician; he is regarded as a going witness and his deposition should be taken.^' 4. Notary public may take. The act of August 10, 1864,^* expressly authorizes notaries public to take depositions, and in the absence of proof the law of other states will be presumed to be the same. And when a foreign statute authorizes the testimony of non-resident witnesses to be taken on depositions before a notary public, an order will be made by a Pennsylvania court requiring the attendance of wit- nesses duly subpcenaed to give testimony before a notary in a cause pending in the foreign state.^' If a borough be a party, it is a fatal objection to depositions that they were taken after objection before the borough clerk.^^ In a suit by a county the objection is not fatal that the justice before whom the deposition was taken was clerk to the county commissioners.^^ 5. When they may be taken in the state. Depositions may be taken anywhere within the state, but they cannot be used on the trial of the cause if the witness lives with- in forty miles unless a subpoena has been taken out and the wit- ness duly subpoenaed or can not be found.^' A judgment note was given in Armstrong county in a transaction arising there and 13 Anonymous v. Galbraith, 2 Dall. 78. 14 Hellings v. Levitt, 3 C. C. 145. 15 Stockham v. Vansant, 17 W. N. C. 158. 16 Whitaker v. Focht, 16 W. N. C. 19. 17 Vanriper v. Vanriper, 3 Lane. L. Rev. 155. 18 §2, P. L. 962, 3 Purd. §30, 3328; Lavelle v. Prudential Ins. Co., 2 Lack. Jur. 306. 19 Thompson's Petition, 19 Dist. 1151. 21 Beck V. Borough, 2 C. C. 511. 22 Harmon, Township Overseers v. Forrest County, 91 Pa. 404. 23 Bibbey v. Metropolitan Life Ins. Co., 3 Dist. 234. See 3 Vale 8857. Of Proceedings from Issue to Trial. 747 it was entered up in Philadelphia county by the use plaintiff, in business in the latter county, and the defendant took a rule to open the judgment and under this took another rule to take depositions in Armstrong county. The court refused to strike off the latter rule.^* A rule to take depositions in New York City was granted where the decedent carried on his business there though residing in Philadelphia, and all the witnesses be- side the petitioner lived in New York.== The forty mile limit may be adopted in taking a deposition under the act of 1895.^^ But a rule to take the testimony of witnesses residing out of the state under this act will only be allowed where there is a special or substantial reason for departing from the previously estab- lished practice.^^ And to give due effect to the act the court should be fully informed about the cause of action, the names and residences of the witnesses and the subject matter of the expect- ed testimony.^* The forty mile limitation has been considered on several occa- sions. The deposition of a witness who resides forty miles from the place of trial may be read without showing an attempt to procure his personal attendance;^' but the fact concerning the distance must be shown. ^" And when a deposition has been taken for the purpose of being read on the argument of a rule to open the judgment, it may also be read on the trial of the issue on proof that the witness is dead or resides more than forty miles from the county seat.^^ And a party who offers his own deposi- tion ought to be held to stricter proof of the facts which create the necessity for such testimony .^- 6. When taken outside the state. The deposition of a foreign witness may be read without show- 24 Hileman v. Rabbett, 2 Dist. 299. 25 Castor's Estate, 16 Dist. 352. 26 June 25, P. L. 279, 2 Purd. §59, p. 1505; Buck v. Strong, 6 Dist. 116. 27 Carter v. Blair, 10 Dist. 749; Sprague v. Greenwald, 5 Dist. 631; Carter v. Producers' Oil Co., 5 Dist. 640. 28 Carter v. Blair, 10 Dist. 749; Hodell Furniture Co. v. Leonard, 17 C. C. S13. 29 Fuller V. Guernsey, 6 Luz. L,. R. 152. 30 Bibbey v. Metropolitan Life Ins. Co., 3 Dist. 234. A commission to take testimony was refused when the distance by wagon road was only thirty-six miles, though over forty by railroad. Gordon v. Todd, 16 W. N. C. 35- 31 Turner v. Laubagh, 6 Kulp 368. 32 Keller v. Labaugh, i Dist. 544. 748 Common Law Practice in Pennsylvania. ing an attempt to serve him with a subpcEna.^^ The act of 1895^* provides that they may he taken on a rule entered in the office of the prothonotary of the court of common pleas of the county where such cause or matter is pending in like manner as rules are now entered for the taking of testimony of witnesses residing within the commonwealth. And by the act of 191 1 ^° it is further provided that the court before which the case is pending "may, in the application of either party, provide for the taking in such state or foreign country of the testimony of such witness or wit- nesses, orally, before an examiner appointed by the court or be- fore any person authorized by the laws of such other state or for- eign country to administer oaths." In granting the application the court may impose terms relating to the payment of costs, counsel fees, travelling expenses, and prescribe the notice to be given and time within which the testimony shall be taken. The authority thus vested in the courts has been exercised f^ on some occasions, however, they have refused applications to take such testimony.^' 7. Notice to take.(b) Where the rules of court require notice to be given to the adverse party, notice to his attorney is not sufficient.'* However, in practice, "service of notice on the attorney is held insufficient, in the case of depositions, only where the attorney has objected at the time of service ; to be exempt from the trouble and respon- sibility of transmitting the notice to his client, is a personal priv- ilege, which, if he please, he may waive ; and he does tacitly waive it, by not objecting ; otherwise, the adverse party might be taken by surprise ; the silence of the attorney, therefore, is equivalent to an agreement, which will bind his client."'" When the rule is b 3 Vale 8845. 33 Williams v. Le Bar, 8 Lane. L. Rev. 182. 34 June 25, P. L. 279, 2 Purd. §59, p. 1505. See §69. 35 June 8, P. L. 709, Purd. Supp. §3, p. 263. 36 Haefner v. Southern Ins. Co., 20 Dist. 952; Carter v. Producers' Oil Co., 5 Dist. 640. 37 Commonwealth v. Miller, 5 Dist. 186; Carter v. Blair, 10 Dist. 749. See notes 27, 28, also §§24, 35. 38 Nash V. Gilkeson, 5 S. & R. 352; Gracy v. Bailee, 16 S. & R. 126; Cunningham v. Jordan, i Pa. 442 ; Fleming v. Beck, 48 Pa. 309. 39 Newlin v. Newlin, 8 S. & R. 41 ; Snyder v. Wilt, 15 Pa. 59. But see Cunningham v. Jordan, i Pa. 442. Of Proceedings from Issue to Trial. 749 entered before the return of the writ, notice should be given to the defendant.*" 8. Serkrice on attorney. It is no objection to the admissibility of a deposition, that no- tice of the taking of it was served on the attorney on the other side, it appearing that he acquiesced in it, and that the deposition had been admitted on a former trial of the same case, without ob- jection.*' Where the rule of court requires service of notice of a rule on the party, service on the attorney, it is true, has been held insufficient, though he do not expressly object to the service at the time ; and it was said, that the general rule to the contrary, stated in Newlin v. Newlin,*^ was so laid down for cases in which no such express rule of court intervenes.*^ But the sound rule seems to be that whether a notice to take depositions be rightly served upon the party or his attorney, depends upon the rule of the court in which the cause is depending, and that, in the absence of proof of any rule on the subject, it will be pre- sumed that the court below decided rightly in respect to it ;** and the inclination now is, to return to the old rule, that the objection to the service by the attorney must be immediate and unequivocal. g. What is a sufficient service of notice. Service of notice on the special bail of the defendant is not good, although he attends and cross-examines the witness, if another person has usually acted as agent, in the absence of the defendant.*® So, service on the plaintiff's wife, though a party to 40 Gilpin V. Semple, i Dall. 251. In the district or circuit court of the United States, the act of congress (Rev. Stat. §863, i U. S. Comp. p. 661) provides for the taking of the depositions de bene esse of witnesses re- siding more than one hundred miles from the place of trial, on reasonable notice to the party, or his attorney, or, if this be impracticable, on such substituted notice, as any judge authorized to hold courts in such dis- trict shall deem reasonable, and direct. The testimony is to be reduced to writing by the magistrate, or by the witness in his presente. Ibid. §864. And the deposition must be retained by the magistrate, until he delivers it into the court with his own hands ; or, he may, with a certifi- cate of his reasons for taking it, seal up and direct the deposition to the proper court, by whom alone it is allowed to be opened. Ibid. §865. 41 Snyder v. Wilt, 15 Pa. 59. 42 8 S. & R. 41- 43 Cunningham v. Jordan, i Pa. 443. 44 Ives v. Niles, 5 W. 323 ; Helfrich v. Stem, 17 Pa. 144- 46 Weaver v. Cochran, 3 Yeates 168. 750 Common Law Practice in Pennsylvania. the process, the husband being out of the state, is not good, if she have not acted in the business;*' so, service on the defendant's daughter, more than ten days before the appointed time, v^fas held insufficient, both parties living near each other, in the same town, and the defendant being absent at the time of service ;^^ but a service, by leaving notice at the dwelling house of the party, with his son, is sufficient.** Where the defendant is merely a stakeholder, and the suit is instituted by agreement, to try the right of the plaintiff, or a third person, to money in the defend- ant's hands, notice of taking a deposition on behalf of the plain- tiff should be given to such third person ; a notice to the defend- ant is not sufficient.^" But notice to an agent has always been considered good ; and where a suit has been marked to the use of another, notice to the plaintiff on the record, of the time and place of taking a deposition, is sufficient, where he has always appeared in the suit, either as party or agent.^^ A notice, not signed by any one, though regularly served, is insufficient.'^ The name of the officer before whom the deposi- tion will be taken, should regularly appear in the notice, to enable the party to send cross-interrogatories to him, in writing; but where a rule of court empowered depositions to be taken, as of course, providing that either party might send written interroga- tories to the commissioner, and notice was given that depositions would be taken before A., at, &c., or some other person competent to administer an oath, and the depositions were taken before B., a person so qualified, at the time and place appointed, which was the office of A., it was held, that the depositions were regular.^' It is unusual, and productive of uncertainty, to assign two days for the attendance of the opposite party, though they be consecu- tive; it is better to give notice of the time of commencement, leaving the other side to take notice of the adjournments." Such notice is irregular where there is but a single witness to be ex- 47 Bauman v. Zinn, 3 Yeates 157. 48 Lemon v. Bishop, i P. & W. 485. 49 Campbell v. Shrum, 3 W. 60. 50 Nicholson v. Eichelberger, 6 S. & R. 546. 51 Richter v. Selin, 6 S. & R. 425. 52 McDonald v. Adams, 8 W. & S. 371. 53 Alexander v. Alexander, s Pa. 277. 54 If the opposite party do not appear at the time appointed, the deposition must then be taken ex parte; he is not bound to take notice of an adjournment. Hamilton v. Menor, 2 S. & R. 72- Of Proceedings from Issue to Trial. 751 aminedj^^ it may, however, be good where there are many wit- nesses, and it indicates that the business is to be commenced on a day certain, and continued throughout a given period.'^ Where the sheriff returns that he served the notice on the opposite party, by leaving a copy with his wife, it will be presumed that the serv- ice was at his dwelling house.^^ 10. Defective notice. Waiver. A deposition taken without notice to the opposite party, is inadmissible, though a person said to have an interest in the land, attended and cross-examined the witness.^* A misdirection of the notice to the plaintiff instead of the defendant, though a clerical error, is calculated to mislead, and therefore vitiates the notice."' But a party who has requested the justice, in case of his absence, to propound certain questions to the witness, will not be permitted to allege want of notice ;^° so, the filing of cross- interrogatories is a waiver."^ Where the rule of court does not require the names of the witnesses to be inserted in the notice, depositions taken without it will be received f^ but where a rule of court requires that a copy of the rule shall be prefixed to the notice, an omission to comply with it will be ground for rejecting the deposition.*^ 11. Certainty of time and place. A notice of the taking of depositions of witnesses, under a rule of court should contain convenient certainty ** as to the time and place of taking them ; and, therefore, a notice that they would be taken "at the house of Thomas Fannegan, in Bedford county, on the 20th of February," is not sufficiently certain.*" Where the 55 Carmalt v. Post, 8 W. 406. 56 Phillipi V. Bowen, 2 Pa. 20. 57 Snyder v. Wilt, 15 Pa. 65. 58 Vincent v. Huff, 4 S. & R. 298. A defect in the notice is cured by the attendance of the opposite party. Selin v, Snyder, 7 S. & R. 172; Porter v. Johnson, 2 Yeates 92; McCormick v. Irwin, 35 Pa. ill. 59 Adams v. Easton, 6 W. 463. 60 Barnet v. School Directors, 6 W. & S. 46. 61 Insurance Co. v. Francia, 9 Pa. 395. 62 Cadbury v. Nolen, 5 Pa, 320. 63 Alexander v. Alexander, 5 Pa. 2TJ. Otherwise, it is not necessary. Goodwin v. White, i Bro. 273. 64 Gibson v. Gibson, 20 Pa. 9. 65 Sheeler v. Speer, 3 Binn. 130; s. p. Vickroy v. Shelley, 14 S. & R. Z72. 752 Common Law Practice in Pennsylvania. rule was for taking depositions on reasonable notice, a notice on the nth, for taking depositions at ten in the morning of the 13th, was held to be too short, in the country."^ As to the time requi- site in a notice in the country, there appears to be no fixed rule or uniform practice throughout the state regulating it; ten days' notice appears to be the usual time given, and therefore, it might be prudent, ex majore cautela, always to afford this time, if pos- sible; though a less time, as nine, and even six days' notice, where the parties lived near each other, has been held to be suf- ficient.'^ A deposition was taken under a rule of court, which provided that notice of taking depositions, without the county, should be sufficient, if it stated particularly the time and place of taking the same, and gave the name of the examining magistrate, or stated generally that the same would be taken by some compe- tent authority in and for the county in which such depositions were to be taken; the notice was that the deposition would be taken, at a certain time and place, before P. A. W., Esq., or some other competent authority; the caption stated that it was taken at the office of P. A. W., a justice of the peace, at the time specified, in obedience to the rule and notice annexed; and the certificate was, that the witness had been qualified and exam- ined before G. H. Starr, J. P. ; and it was held, that the official character of G. H. Starr sufficiently appeared, to admit the deposition to be read in evidence."* It seems to be, and certainly ought to be, a rule, that if the party notified has had reasonable time for preparation to attend at the taking of depositions, under a rule of court, they will be received in evidence at the trial. In case, then, a rule be entered in vacation for the taking of depositions, and the notice to the other party stipulate a time which he may think too short, or un- reasonable, he ought to apply, to the court, at the next term, to suppress them."' If objection to the execution of a commission be not made within the period allowed by a rule of the court, the objection, on the trial, is unavailing.'" Where the judge who 66 Hamilton v. McGuire, 2 S. & R. 478. 67 Carpenter v. Groff, 5 S. & R. 162. 68 Wright v. Waters, 32 Pa. 514. And see Sample v. Robb, 16 Pa. 305 ; Sweitzer v. Meese, 6 Binn. 500. The court below is, in general, the judge of the sufficiency of the notice. Voris v. Smith, 13 S. & R. 334. 69 Carpenter v. GrofI, 5 S. & R. 162. 70 Perkins v. Johnson, 19 Pa. 510. Off Proceedings from Issue to Trial. 753 tries the cause is satisfied that the party was not really deceived by the alleged defect in the notice, he should admit the deposi- tion/^ Where a notice to take depositions, in pursuance of a rule of court, specifies a particular place for the purpose, the depositions cannot be read in evidence, unless it appear, from the certificate of the justice, that they were taken at the place ap- pointed.'"' 12. Mode of taking, (c) "At common law a commission could not issue to take the testimony of witnesses de bene esse in any case. The practice of taking testimony out of court comes to us from the chancery courts, where, in administering justice, the rules of the common law were found to be deficient."" The taking of depositions before commissioners appointed by the court, pursuant to the acts of assembly,^* is now frequent in practice; and it is expedient, if the testimony be perplexed and voluminous, or belong to a cause of an important character. A deposition taken before one who is actually a justice, is good, though he be not so described on its face ;'° and a deposition taken before the prothonotary of an ad- joining county, under the common rule, is good, if the parties attended before him.'* But a rule to take depositions before any judge or justice, on two days' notice, does not authorize the taking of a deposition ex parte in another county.^' It is irreg- ular, to take a deposition at an adjourned meeting, in the ab- sence of the defendant, without notice to him.'* A deposition, taken ex parte, not at the time fixed in the notice, cannot be c 3 Vale 8847. 8856, 8878. 71 Gibson v. Gibson, 21 Pa. 11. 72 McCleary v. Sankey, 4 W. & S. 113. See Newlin v. Newlin, 8 S. & R. 41. 73 Brown, J., International Coal Mining Co. v. Penna. R. Co., 214 Pa. 469, 470. 74 See I Purd. 613. Depositions may also be taken before a United States commissioner. Acts March 29, i86o, P. L. 341, and May 24, igoi, P. L. 300. I Purd. §§9, 10, pp. 614, 615. 75 Berks County v. Ross, 3 Binn. 539; Dunlop v. Munroe, i Cr. C. C. 536. The letters J. P. are a sufficient designation of a justice's official character. Wright v. Waters, 32 Pa. 514. But the oflScial character of the officer must in some way appear. Waugh v. Shunk, 20 Pa. 130. 76 Phillipi V. Bowen, 2 Pa. 20. ^^ Reese v. Warren, l Bro. 255. 78 Hamilton v. Menor, 2 S. & R. 70. 48 754 Common Law Practice in Pennsyi,vania. read ;'' but where notice is given of the taking of a deposition, be- tween certain hours, the parties are not bound to wait until the expiration of the last named, for a cross-examination, so that reasonable time be given for that purpose.'* A copy of the rule need not be produced to the magistrate, unless he require it.'"^ 13. Supervision of the court. Though a rule for depositions is, of course, the supervision of the court is not withdrawn, and if the liberality of the court be abused and the rule be used for unlawful purposes, relief may be granted on application to the court.*^ But a rule of court which provides that a rule may "be entered by either party to take the deposition of witnesses without regard to the circumstances of their being aged, infirm or going witnesses, stipulating, however, eight days' notice to the adverse party," is contrary to law and void. And an order directing a witness to answer a question pro- pounded to him under such a rule is a final order, from which an appeal may be immediately taken.*' Depositions taken on a rule to show cause cannot be read where the proper notice under a rule of court has not been given for the taking of depositions to be used on the trial.'* Thus if two legatees have been respondents in a will contest and a rule for a commission to take depositions abroad is served on one of them only, and is fully executed and returned before the other has notice of the citation or has appeared, the deposition cannot be read to affect the right of the legatee who was not served,'^ but may be read as to the other.'* 14. Duties and authority of officer taking them. An alderman appointed under a rule to take depositions may imprison a witness who refuses to be sworn.'' And on the re- 79 Whitehill y. Lousey, 2 Yeates 109; Bachman's Case, 2 Binn. 72. 80 Bigony v. Stewart, 68 Pa. 318. And see Sweitzer v. Meese, 6 Binn. Soo. 81 Goodwin v. White, i Bro. 273. 82 International Coal Mining Co. v. Pennsylvania R. Co., 14 Dist. 469. 83 International Coal Mining Co. v. Pennsylvania R. Co., 214 Pa. 469, revg. 14 Dist. 469. A rule to take depositions entered under a rule of court which authorizes its entry as of course will not be set aside on motion. Economy B. & L. Association, 31 C. C. 205. 84 Travis v. Brown, 43 Pa. 9. 85 Hall's Estate, 10 North. 93. 86 Ibid. 87 Commonwealth v. Roberts, 2 Clark 340. See 3 Vale 8847. Of Proceedings from Issue to Trial. 755 fusal of a witness duly subpoenaed to appear before an examiner or notary public, an attachment will issue?'' Likewise the offi- cers of a corporation that sues a resident in another county may be attached for contempt for not obeying a subpoena to attend be- fore a commission to take deposition in such county;'* nor need such a subpoena be specially allowed by the court.*" But it has no power to compel the plaintiff to disclose his case in chief on a rule by the defendant on the plaintiff to show cause why his complete deposition should not be taken subject to the defendant's cross-examination. Whether the plaintiff will be present at the trial, or whether he will be a witness is entirely in his own control. The defendant may call him as his witness, or may call him for cross-examination.'^ In taking depositions an examiner should put down the an- swers noting the objections.*^ An order directing a witness to answer a question on the taking of depositions under an illegal rule of court is a final order, so far as the witness is concerned, and he may take an appeal therefrom.*^ Again, when depositions are taken ex parte without any ap- pearance by the opposing side, the notary's certificate must show that the witness was sworn before his examination.** A deposi- tion taken by a stenographer in shorthand, read by or to the wit- ness, and after assenting, must be signed by him. Unless these essentials are regarded the court will not receive the deposition.*' . 88 Bowen v. Thornton, 9 W. N. C. 575 ; Trimble v. Barnard, 15 W. N. C. 127. 89 Commonwealth Title Ins. & Trust Co. v. Slack, 18 C. C. 593. 90 Ibid. 91 Kichline v. Wolf, 20 Dist. 739. See §6g. 92 Beck V. Borough, 2 C. C. 511. 93 International Coal Mining Co. v. Pennsylvania R., 214 Pa. 469, revg. 14 Dist. 469. 94 Bowman v. Paulhamus, 20 C. C. 600. 95 Zehner v. Lehigh Coal & Nav. Co., 187 Pa. 487; Auman v. Cunfer, 31 C. C. 6; Llewellyn v. Llewellyn, 12 Luz. Rep. 331; Smith v. Northern Central Railway Co., 19 York 87 ; Smith v. Cokefair, i Leh. 147. Deposi- tions taken before a notary public in pursuance of rule and notice will be received in evidence though unaccompanied by the formal certificate if the caption shows they were taken by the person at the time and place named in the rule, provided each page is stamped with the seal and the testimony of each witness is followed by the certificate of oath or af- firmation and the signature and seal of the notary, and witnesses are cross-examined. Croxall's Estate, 7 York 35. With respect to the need of signing by the witness the court said in the Zehner case: "It ought 756 Common Law Practice in Pennsylvania. It has been held that if a deposition be taken in the presence of both parties in shorthand by a stenographer and transcribed by him after the departure of the witness, it is too late to raise the objection,** but this rule does not harmonize with that just stated and delivered by the higher court. They must also be accom- panied with the jurat of the official who took them, for its omis- sion is fatal.*' 15. Cross-examination. When a deposition of one of the plaintiffs is taken by the de- fendant, the other side must be afforded an opportunity to cross- examine or the deposition will be disregarded.®* And in an ac- tion for damages against a corporation for permitting transfers of its stock on a forged power of attorney, the plaintiff on tak- ing the deposition of an aged witness cannot by rule on the de- fendant require him to produce for the inspection of the witness the power of attorney in question.'* 16. How it should be written. A deposition ought to be reduced to writing from the mouth of the witness, in the presence of the justice or magistrate, and in general ought, though it need not in all cases, be drawn by him. In case of difference of opinion in taking down the words of the witness, the magistrate should decide. Depositions are sometimes drawn by the counsel of the party, by consent, or where both par- ties attend; but without such consent, a deposition in the hand- writing of the counsel is inadmissible in evidence.^"" In still later decisions, the court lay down the rule to be, that the whole deposition should be in the handwriting of the magistrate, unless by agreement on its face, it be otherwise provided."^ And it is to be obvious to any one that depositions taken by a stenographer in shorthand must be fully written out in longhand, read by or to the witness, assented to and signed by him." The contrary practice has however to some extent been followed. See Judge Stewart's opinion in Shenley Park Amusement Co. v. York Mfg. Co., 11 York 94. 96 Kellow v. Jory, i North. 341. 97 Zehner v. Lehigh Coal & Nav. Co., 187 Pa 487. 98 Gunnis v. Abbett, 17 W. N. C. 424. 99 Pennsylvania Co. v. Phila., Germantown & Norristown R. Co., 9 C. C. 517; Anderson v. Cummings, 12 Dist. 65. See Ladenburg v. Penn- sylvania R., 6 Dist. 453. 100 Summers v. McKim, 12 S. & R. 405; Carmalt v. Post, 8 W. 406; Grayson v. Bannon, 8 W. 524. A deposition may be so taken, by consent. Farmers & Mechanics' Bank v. Woods, 11 Pa. 99; Wertz v. May, 21 Pa. 274. loi Patterson v. Patterson, 2 P. & W. 200. Of Proceedings from Issue to Trial. 757 immaterial whether the counsel who pens the deposition was concerned in the conduct of the cause, or was merely employed to take the deposition, or specially authorized to write it ; the magis- trate cannot make him his clerk for that purpose, unless by the express consent or acquiescence of the other party.^"^ So, if it has been drawn by an agent, party, or relation of a party having or feeling an interest in the cause ; and the fact that such a depo- sition had been filed a number of years, and read on a former trial before arbitrators, and in court, without objection, does not alter the case.^"^ Though the justice may employ the witness to write down his own testimony, it must appear that he actually did so, his testimony being orally delivered in the justice's hearing and presence. A deposition previously written by the witness, the caption being prefixed to it by the justice, is inadmissible.^"* Depositions are not admissible, if it appear that the witness was not sworn until after his testimony had been reduced to writing; but the error is waived, by the opposite party's not objecting to it, before the justice or examiner.^"^ In divorce proceedings they must be subscribed by the witness.^"* 17. Interrogatories. Where a deposition is taken before a justice, on interrogatories, it is the duty of the justice to put the interrogatories severally to the witness, and obtain distinct answers to each ; and if the wit- ness refuse to answer, he must certify the matter at the foot of the deposition.^"' The parties or their counsel, when before the magistrate, may respectively examine and cross-examine the wit- ness, but the questions or interrogatories put to him need not be stated in the deposition.^"^ Exhibits spoken of by the deponent should be referred to in the body of the deposition, and either an- 102 Addleman v. Masterson, i P. & W. 454. 103 Swearingen v. Pendleton, 3 P. & W. 41; Grayson v. Bannon, 8 W. 524. 104 McEntire v. Henderson, i Pa. 402. 105 Armstrong v. Burrows, 6 W. 266. It is a fatal objection, that the witness was not sworn, until after deposition taken, when he refused to answer, on cross-examination. McDonald v. Adams, 7 W. & S. 371 ; Stonebreaker v. Short, 8 Pa. 155. 106 Biddle v. Biddle, 17 Dist. 748; Askew v. Askew, 17 Dist. 680. 107 Vincent v. Huff, 4 S. & R. 298. The deposition of a party may be taken, without filing interrogatories. Addicks v. Carrigan, i W. N. C. 358. 108 1 Dunl. Pr. SSJ. 758 Common Law Practice in Pennsylvania. nexed to it or so marked as to be identified.^"' But where such exhibits have been annexed to a previous deposition, and are properly referred to in the subsequent one, and marked by the justice, the identification may be by parol testimony; and this need not be that of the justice himself.^^" The court, on a pre- liminary rule taken, will strike off depositions, in which there are material interlineations, not noted in the jurat ;^^^ an evasure or interlineation, however, which is shown to have existed at the time the commission was returned and opened by the pro- thonotary, will be presumed to have been made with the knowl- edge and consent of the witness, at the time his testimony was taken.^^^ And the decision of the court below that an interlinea- tion or erasure in a deposition was made with the consent of the witness, is the determination of a fact, which will not be re- viewed on an appeal, unless the paper book show that clear and undoubted evidence, tending to repel the presumption, was laid before the court. ^^' i8. How and to what witness may testify. It is no objection to the admissibility of a deposition, that the witness testifies to its containing the substance of a memorandum, then before him, made to aid his recollection, but which mem- orandum does not accompany the deposition ; nor will an admis- sion by the witness, that he had made a previous deposition in the case, from a memorandum in the handwriting of one of the parties to the suit, but which was a copy of one of his own, and 109 Petriken v. Collier, 7 W. & S. 392; Daily v. Green, is Pa 1^7 Bell, J. ^ . 3 . -/, no Dailey v. Green, 15 Pa. 118. 111 Williams V. Pool, Dist. Court, Phila. 23 Sept. 1848. Exceptions to deposition. Per curiam. There appear to be alterations of which no note or memorandum was made by the alderman, as having been made at the time; they are, also, in very material parts of the testimony. We do not say that, upon parol evidence of the magistrate, at the trial, that these alterations were made at the time, and that the deposition was duly taken at the hour named in the notice (in regard to which, also, there is an erasure), the deposition would be inadmissible. But the plaintiff has put these exceptions down for argument, and, unexplained, they are certain- ly fatal. 112 Wallace v. McElevy, 2 Grant 44- A deposition is not to be ex- cluded, on account of erasures and interlineations, unless there be some ground to suspect that it has been tampered with. Johnston v. Beckham 3 Grant 267. ' 113 Ibid. Of Proceedings from Issue to Trial. 759 the substance of which is contained in the deposition in question, invalidate the latter."* The contents of a former deposition may, with the consent of the parties, be read to a witness, for the pur- pose of refreshing his memory. But the answers to questions put on the taking of a second deposition, must be taken according to the present recollection of the witness; and, therefore, if a wit- ness do not recollect all the matters contained in a former depo- sition, and such former deposition be, nevertheless, copied into the second deposition, the latter will not be evidence.^^° A lead- ing interrogatory (that is, one expressed in such manner as to indicate to the witness the answer which it is wished he should make),^^" must be objected to at the time it is put to the witness. If no exception be then taken, the answer of the witness to the leading interrogatory cannot be suppressed on that ground, when his deposition is read on the trial. "^ A deposition taken for the purpose of proving the execution of a paper, is not admissible, unless the paper be described with such precision as to identify it with ease and certainty. Thus, where a deposition, taken for the purpose of proving the execu- tion of a due bill, stated, "that the due bill, dated 28 December, 1839, signed P. M. & Co., is in the handwriting of M.," it was held, that the deposition did not describe the due bill with suffi- cient certainty, and, therefore, could not be read in evidence.^^^ Where testimony is taken on depositions, as to the genuineness of an instrument, the original must be exhibited to the witness.^^* The court, as a general rule, will not compel a party to produce books and papers before a magistrate, taking depositions under a pending rule;^^° though, where a nominal plaintiff offers himself to testify, he will be compelled to produce his papers.^^^ 114 These points were decided in the case of Craig v. Sibbett, 15 Pa, 241 ; but the facts on which the decision was based, not appearing in the report, they were taken from the paper book. 115 Bovard v. Wallace, 4 S. & R. 500. 116 Selin V. Snyder, 7 S. & R. 166. And see Wogan v. Small, 11 S. & R. 143- 117 Sheeler v. Speer, 3 Binn. 130; s. p. Snyder v. Snyder, 6 Binn. 483; Strickler v. Todd, 10 S. & R. 63. 118 Petriken v. Collier, 7 W. & S. 392. And see Christie v. Woods, 2 Yeates 213. 119 Weidner v. Conner, 9 Pa. 78. 120 Thomas v. Smith, Dist. Court, Phila., 27 Oct., 1849. 121 Borton v. Streeper, 2 Miles 41. 760 Common Law Practice in Pennsylvania. ig. Return of deposition and mode of preparing it. On taking the deposition of a witness, residing more than forty miles distant, or of a going witness, preliminary proof of the witness's disability should be inserted in the deposition it- self.^^^ The certificate of a justice, that the witness was duly qualified and examined, at the time and place stated in the cap- tion, that being in the ordinary form, shows sufficiently that the witness was sworn before he was examined.^^^ It is not neces- sary, in depositions before a justice, that there should be a cer- tificate at the end of each deposition, that the witness was sworn, and had subscribed it ; the general caption and certificate are suf- ficient.^^* Deficiencies in matters of form may be corrected by amendment and, on exception, the depositions should be recom- mitted to the commissioner for amendment.^^' Where a witness has been examined on interrogatories, they must be attached to the return, so that the court may see whether the answers are pertinent.^^* When the examination is concluded, the witness signs the deposition, and the judge or magistrate adds his jurat, and delivers the deposition to the party at whose instance it was taken, by whom it must be filed; as will presently be seen, an omission in this respect is attended with great risk. Although an alderman or commissioner, before whom depositions are taken, under rule of court, may commit a witness who refuses to testi- fy .127 ygj. jijg proper course is for the alderman to report the question to the court for its action.^^* 20. Filing of deposition. When a deposition has been taken, it ought to be filed in the 122 Poole V. Williams, Dist. Court, Phila., Dec, 1848. MS. 123 Sample v. Robb, 16 Pa. 305. 124 Morss V. Palmer, 15 Pa. 51. 125 W. F. Main Co. v. Dreifus, 15 Dist. 620. 126 Weidner v. Conner, 9 Pa. 78. 127 Act 26 February, 1831, P. L. 92, 2 Purd. §2, p. 1488. 128 Pfiel V. Elmes, Dist. Court, Phila. 24 Mar., 1848. Motion for attach- ment against Charles E. Elmes. Per curiam. In cases in which the witness should be compelled to appear and to testify, it is the province of the alderman or commissioner to issue an attachment or commit the wit- ness. Where this is refused by him, the party laying the proper ground by affidavit, may obtain, by special motion, a subpoena, directed to the wit- ness, to appear and testify at the bar of the court, upon which an attach- ment may issue, or the witness be committed, according as the circum- stances require. So that the motion in this case should have been for a subpoena, and not for an attachment. Of Proceedings from Issue to Triae. 761 prothonotary's office ; it is not the property of the party on whose behalf it was taken, nor has he any right to withhold it.^^' The depositions belong to neither party, but are for the use of both, and should be delivered to the prothonotary, with all convenient speed, as soon as they are taken. ^^" In many of the judicial dis- tricts this is provided for by rule of court; and if this rule be not complied with, the deposition cannot be read in evidence.^'^ This practice was enforced, in Philadelphia, under our rule of court, which appears to contemplate the filing of depositions ;^^- and the court, on application of the opposite party, may order the filing of depositions, on payment of the costs of taking them.^'* If a deposition, though filed under a rule of court, be subsequently taken out of the office, and retained for several years, the court should not permit it to be read."* Where notice of the filing is required by the rule, a deposition cannot be read, if no such notice be given ;^^^ otherwise, if the objections would not have availed, had exceptions been taken within the time pre- scribed.^^* 21. Court may make rules about filing, (d) Courts have power to make rules respecting the filing of depo- sitions which cannot be reversed for enforcing them.^^' And when they have been used in argument before the court they be- come part of the case and must be filed.^^* And when regularly taken and filed by order of the court they become proper evi- dence for either party.^^' When the entire deposition is offered though only a portion is read, the whole becomes part of the rec- d 3 Vale 8847. 129 Gordon v. Little, 8 S. & R. 549. 130 Nussear v. Arnold, 13 S. & R. 327. 131 Rambler v. Tyron, 9 S. & R. 94. 132 Wilson V. Leech, 3 Clark 519. See rule 15, §9. 133 Martin v. Dearie, 9 Phila. 186; Vanarsdalen v. Dickerson, 2 W. N. C. III. An order for the payment of the costs, is a matter of dis- cretion. Johnston v. Pennsylvania R. Co., 5 W. N. C. 360. Where a rule of court requires a deposition to be filed, the court will compel a produc- tion of it. Bennett v. Williams, 57 Pa. 404. 134 Ross V. Barker, 5 W. 391. 13s Ewing V. Alcorn, 40 Pa. 492. For Phila. rule see §38. 136 Hagey v. Detweiler, 35 Pa. 409. 137 Shoemaker v. Stiles, 102 Pa. 549. 138 Rogers v. Gilmore, 13 W. N. C. 193. 139 Lowry's Estate, 6 Super. Ct. 143. 762 Common Law Practice in Pennsylvania. ord.^*" But the depositions are not part of the record on a writ of error for discharging a rule to strike off a judgment and to set aside a fieri facias.^*^ Again, after a case has proceeded to final judgment it is too late to file depositions taken while it was in progress.^*^ Furthermore, if not filed by the party in whose behalf they were taken, the court will on application direct them to be filed.^*^ Depositions also read in support of a motion for a new trial must be filed and then they become the property of the court.^** But if they are not filed within the time specified by rule of court they can neither be read in evidence nor allowed in the taxation of costs.^*° Such a ruling does not apply when the failure to return them within twenty days after they were taken as required by the rule of court was caused by a mistake of the commissioner.'** Lastly, when a cause is continued because a de- position was not filed pursuant to the rule of court, a subsequent filing a reasonable time before trial will entitle it to be read.'*' 22. When deposition may be read.(e) A deposition not taken or filed according to the rules establish- ed by the court, is not evidence;"^ and, therefore, if taken ex parte, it is incumbent on the party who offers it in evidence, to show that it was taken according to notice.'*" A deposition, though taken by consent, is open to all legal exceptions, unless the contrary be expressly stipulated ;''" a cross-examination does not preclude the taking of any legal exceptions to the compe- e 3 Vale 8856, 8878. 140 Knauer v. McKoon, 19 Super. Ct. S39. But see Pepper's Estate, 3 Dist. 17s, in which it is held that depositions even when filed in the of- fice of the court forms no part of the record. 141 Massey v. Clarke, 3 Penny. 401. 142 Building Association v. Goldbeck, 12 W. N. C. 533. 143 Lour V. Vandermark, 4 Kulp 425. 144 O'Conner v. Weeks, lo W. N. C. 372. 14s Ulrich V. Getz, 2 Lane. L. Rev. 137. Where depositions were found on file but it could not be ascertained how or when they got there and notice of their receipt was not given by the prothonotary, they could not be admitted in evidence. Ulrick v. Getz, 11 Lane. L- Rev. 142. 146 Smith V. Cokefair, 8 C. C. 45. 147 Ankrim v. Sturges, 9 Pa. 275. 148 Rambler v. Tryon, 7 S. & R. 90. 149 Selin V. Snyder, 7 S. & R. 172. A deposition which has been twict read on former trials, without objection, cannot be rejected, for want of proof of notice. Hill v. Myers, 43 Pa. 170. 150 Burke v. Young, 2 S. & R. 383. Of Proceedings from Issue to Trial. 763 tency of the witness ;"^ but it is no ground for excluding a depo- sition that the witness refused, on cross-examination, to answer an irrelevant question."^ After an amendment in the names of the parties, a deposition previously taken cannot be read.^°' That a deposition is not entitled, will not vitiate it if annexed to a cer- tified copy of the rule under which it was taken ;^^* nor is the ob- jection valid, that the deposition is not in the handwriting of the magistrate, unless it appears to have been written by the party, his agent or attorney ;^^° and the witness will be presumed to have been sworn, before being examined, in the absence of evidence to the contrary.^'^ Formerly a rule of court provided that notwithstanding a rule had been obtained for taking depositions of witnesses, to be read in evidence on the trial of the cause, in case of their death, ab- sence from the state, or other inability to attend, yet, in case the witness were resident within the state, and within forty miles of the place of trial, such deposition should not be read in evidence, unless the party offering it satisfied the court that a subpoena had actually been taken out (except the witness was out of the state), and that the witness had been duly subpoenaed, or could not be found, after reasonable pains taken for that purpose.^'' Under this rule the mere service of a subpoena on a witness who re- sided within forty miles of the place of trial, was not sufficient to admit his deposition ; the party must bring him in by attachment, if he can.^°^ But a deposition is admissible on oral testimony of a non-physician that the witness is aged and infirm and not able to be present.^'" Also where a witness, in his deposition, states that he is a resident of another state, it is not necessary to show an attempt to serve him with a subpoena."" So, if the witness reside more than forty miles from the place of trial, his deposi- 151 Mifflin V. Bingham, i Dall. 272. 152 Crossgrove v. Himmelrich, 54 Pa. 203. 153 Horback v. Knox, 6 Pa. 377. 154 Vincent v. Huflf, 8 S. & R, 381. 155 Crossgrove v. Himmelrich, 54 Pa. 203; Piper v. White, 56 Pa. 90. 156 Sample v. Robb, 16 Pa. 305. 157 Rule IS, §1. And see MifBin v. Bingham, i Dall. 273; Wallace v Mease, 4 Yeates 520; Parker v. Farr, i Bro. 252. 158 Whitesell v. Crane, 8 W. & S. 369 ; Parker v. Farr, i Bro. 252. 159 Buch V. Young, 23 Lane. L. Rev. 354. 160 Waters v. Wing, 59 Pa. 211; Scott v. Province, i Pitts. 189, Rankin v. Cooper, 2 Bro. 13. 764 Common Law Practice in Pennsylvania. tion may be read, without showing a subpcena.^'^ Where a wit- ness has no home or family, a deposition taken out of the juris- diction, at a place where he was at work, may be read.^*" And where a witness remained within the jurisdiction until seven days before the trial, and then went beyond the jurisdiction without the knowledge of the party, his deposition was admitted.^*' It is not necessary to take out a subpoena for a witness who is physically unable to attend, in order to admit his deposition;^** thus the deposition of a woman in an advanced stage of preg- nancy may be read, it being shown to be improper for her to at- tend in person.^^° Whether the witness be able to attend in per- son or not, is a matter for the court below ;"° no general rule can be laid down upon the subject ; it must, in some measure, de- pend upon the sound discretion of the court, and the circum- stances of each particular case; subject, however, to review in case of abuse of the discretion.^'' The deposition of a witness who has lost his memory from old age, may be read;^°* and where the deposition of a party has been taken, under the act of 1869, it may be read in evidence after his decease, and the sub- stitution of his executors.^"* But the deposition of a dying man is inadmissible, if his condition precluded the possibility of cross- examination.^'" The defendant cannot read a deposition taken by the plaintiff if the witness has been subpoenaed by neither party, and there be no proof of his inability to attend i"^ and the rule is the same as to the deposition of a party ;"^ the party seek- ing to use such deposition must show that he has used due dili- gence to procure the personal attendance of the witness.^'^ So, a deposition taken by consent, whilst a cause is depending be- 161 Pennock v. Freeman, i W. 401 ; Fuller v. Guernsey, 24 P. L. J. 200. 162 Gould V. Crawford, 2 Pa. 89. 163 Hamilton v. McGuire, 2 S. & R. 478. 164 Covanhoven v. Hart, 21 Pa. 495. 165 Beitler v. Study, 10 Pa. 418. 166 Vincent v. Huff, 8 S. & R. 381. 167 Parks V. Dunkle, 3 W. & S. 291 ; Dennison v. Fairchild, 7 W. 309, O'Conner v. Layton, 2 Am. L. Reg. 121. 168 Emig V. Diehl, 76 Pa. 359. 169 Evans v. Reed, 78 Pa. 415; Speyerer v. Bennett, 79 Pa. 445. 170 Pringle v. Pringle, 59 Pa. 281. 171 Gordon v. Little, 8 S. & R. 533. 172 Brice v. Shultz, 6 Phila. 264. 173 Gordon v. Little, 8 S. & R. 533 ; Stiles v. Bradford, i R. 394. Of Proceedings from Issue to Trial. 765 fore arbitrators, from whose award an appeal has been taken, cannot be read on the trial of the appeal, unless the witness be dead, or not within the jurisdiction."* A deposition is but secondary evidence, and admissible on proof of its having been taken under a competent authority, on due notice, and in a proper manner ; and, also, on proof that the contingency for which it was intended to provide, has actually happened ; and if it be admitted without this, it is error. There- fore, where a deposition was admitted on the ground of inability to attend, and the proof was that the witness had broken her leg eight years before, and had again been hurt, the preceding au- tumn, but was a stout, active woman of her age, and had come a few days before, to within ten miles of the courthouse; that she was not able to walk to court, nor would it have been prudent to bring her to court on a wet day, such as that on which the cause was tried, unless in a covered carriage, in which she might have been safely brought; it was held, that the deposition ought to have been rejected.^'^ In cases of secondary evidence (such as a deposition is, as we have just seen), the question whether a sufficient introductory ground was laid, has always been the sub- ject of a writ of error. In Sanderson v. Lamberton,^'" the su- preme court reversed the judgment, because the court below had rejected evidence of an obligor's handwriting, although evidence had been given that the subscribing witness was out of the juris- diction ; and that, after diligent inquiry, no person could be found to prove his signature. So, a question of what was reasonable notice, where no particular time was specified in the rule, was en- tertained in Hamilton v. McGuire ;^^^ and the same principle was involved in Sweitzer v. Meese,^'* and also in Carpenter v. Grofif,^'* where the decision of the court below was reversed. There is an endless list of other cases where a court of error will inquire into the sufficiency of introductory evidence; as, for in- stance, of the existence, loss of, and search for, deeds or other writings; of the notice to produce them; of evidence of interest, 174 Forney v. Hallagher, ii S. & R. 203. And see Parker v. Fan. I Bro. 252. 175 Pipher v. Lodge, 16 S. & R. 214. 176 6 Binn. 129. 177 2 S. & R. 478. 178 6 Binn. 500. 179 s S. & R. 162. 766 Common Law Practice in Pennsylvania. or an objection to a witness; or evidence of the execution of deeds or writings, offered in evidence collaterally."" 23. Reading of portions by respective parties. When one party takes the deposition of a witness, and reads so much of it as supports his case, and stops, the other party may, generally speaking, read the rest of the deposition, which is in his favor ;^*^ but where one party reads only part of a depo- sition without objection, the other will not be permitted, in his turn, to read the omitted parts, for the sole purpose of contra- dicting them by other evidence."^ A party objecting to a deposi- tion should state the ground of his objection; so that, if it be but to a part, his opponent may withdraw the exceptionable matter, or that the court may overrule it; therefore, where objection is made to a deposition in toto, or there is a refusal to specify the particular exceptions to it, it will not be error to read it, if any part of it be legal evidence, though other parts of it may be inad- missible. This rule, however, may have exceptions ;'*^ thus, it is said, that the matter excepted to may be so very palpable, so directly opposed to every principle of justice, as to strike every man on the slightest investigation.^'* It is not a ground of ob- jection to a deposition, that it purported to contradict a witness, whose deposition had been previously taken on the other side, but who was not examined on the trial, and that the first wit- ness had not been interrogated as to the matter testified to in the second deposition.^*^ A copy of a deposition, no account being given of the loss of the original, nothing proved but that due search had been made for it, the introductory evidence particular- ise Pipher v. Lodge, 16 S. & R. 214. 181 Breyfogle v. Beckley, 16 S. & R. 264. And see Southwark Ins. Co. V. Knight, 6 Wh. 327. A party may read part of a deposition taken by his adversary, leaving to the latter the right to read the residue, if it be legal evidence for him. Calhoun v. Hays, 8 W. & S. 127. When deposi- tions taken on behalf of the plaintiff are offered at the trial, not by him, but by the defendant, the latter adopts the witness as his own, and can- not complain of the court's action in sustaining objections to questions asked the witness on cross-interrogatories propounded by the defendant himself. People's Nat. Bank of Pensacola v. Hazard, 231 Pa. 552. See Fisher v. Hart, 149 Pa. 232. 182 Logan v. McGinnis, 12 Pa. 27. 183 Anderson v. Neff, 11 S. & R. 208-9. 184 Ibid. 185 McKelvy v. De Wolfe, 20 Pa. 375. Oif Proceedings prom Issue to Triaiv. 767 ly defective in not showing that the paper was truly copied from the original, and the usual ground not laid to make way for the original itself, had it been produced, cannot be admitted in evi- dence.^'" 24. Objections to reading. Objection should be made to irrelevant and incomplete portions of the deposition specifically, and not to the whole deposition;^*'' an objection, therefore, to an entire deposition will not be sus- tained if some of the testimony is relevant.^*' Again, an objec- tion is waived by failure to file exceptions thereto.^'" If the de- fendant is dead at the time of the trial, the plaintiff's deposition, taken in the defendant's lifetime, is only admissible for the plain- tiff as a whole.^"" And when parts of a deposition are read by the plaintiff, the defendant may use the rest, if relevant, as cross- examination.^'^ Although the deposition of a non-resident party to be read in his own behalf may be taken as a rule under the act of 1887,^'^ the application, as we have seen, is not granted as of course if the adverse party objects.^'^ If, therefore, the deposition is taken it cannot be read in evidence when the adverse party has given notice that he desires the presence of such party at the trial that he may be cross-examined in the presence of the jury.^^* But when depositions are taken in a distant city and witnesses are permitted to refresh their memory from books in the custody of the United States court, and the adverse party does not avail himself of the opportunity to be present and cross-examine the 186 Pipher v. Lodge, i6 S. & R. 214. 187 Chase's Estate, 5 Lack. Jur. 65 ; Hatnaker v. Whitecar, i Walk. 120. 188 Wojciechowski v. Johnhowski, 16 Super. Ct. 444; Henry v. Com- monwealth, 107 Pa. 361 ; Martin v. Kline, 157 Pa. 473. Nor will the su- preme court reverse for an error in the admission of a deposition which, when read, was not prejudicial to the objecting party. Depew v. Depew, 4 At. 728. 189 Shannon v. Castner, 21 Super. Ct. 294; Fry v. Coleman, i Grant 445. 190 Thomas v. Miller, 151 Pa. 482. 191 Goodman v. Merchants' Despatch Transfer Co., 3 Super. Ct. 282. 192 May 23, §9, P. L. 158, 2 Purd. §39, p. 1500. 193 Gray v. Braden, 13 Dist. 481. 194 Ibid. 768 Common Law Practice in Pennsylvania. witness from the books, he cannot complain of the non-produc- tion of the books at the trial."^ 25. Reading of depositions in a former suit. It is enacted by the act of 1814,^'® that any deposition, which, by the rules of law, may be read in evidence, on the trial of the cause in which it is taken, may be admitted in evidence in any subsequent cause, wherein the same matter shall be in dispute between the same parties or persons, their heirs, executors, ad- ministrators or assigns. Under this act, a deposition taken in a former cause between the same parties, is evidence, where the witness resides beyond the jurisdiction,^*' though the former ac- tion terminated in a non-suit.^** But the admission of the deposi- tion of an aged and infirm witness, which was read on a former trial, though residing in the county, is subject to the lawful dis- cretion of the trial judge.^'* Where two actions, one brought by A. and B., and the other by A. alone, against the same defend- ant, are tried together, by consent, a deposition taken in the lat- ter case, proving a promise to pay both accounts, is evidence. ^'"' But the plaintiff cannot, by joining in one ejectment two defend- ants, holding by separate titles, give in evidence depositions taken in a former suit, to which but one of the defendants was a party ; especially if the land in controversy be not the same;^"^ and a deposition taken in a suit between A. and B., is not evidence in another action between them, with notice to C. as terre-tenant, in which it is sought to charge the land of C.^"^ A deposition taken in a former ejectment between the same parties, but in which the plaintiff claimed under a different title, is not admissible ;-''^ but a deposition taken in a former ejectment may be read in evidence in another ejectment for the same land, between the same parties in interest, though the parties to the record be not the same.^"* If one count of the declaration in a second action betwen the parties be 19s Southern B. & L. Association v. Pennsylvania Fire Ins. Co., 23 Super. Ct. 88. 196 Act 28 March, 1814, 6 Sm. L. 208, 2 Purd. §57, p. 1504. See §27. 197 Carpenter v. Groff, 5 S. & R. 162 ; Hobart v. McCoy, 3 Pa. 419. 198 Wertz V. May, 21 Pa. 274. 199 Thornton v. Britton, 144 Pa. 126. 200 Smith V. Lane, 12 S. & R. 80. 201 Walker v. Walker, 16 S. & R. 379. 202 Good V. Good, 7 W. 195. 203 Cluggage V. Duncan, i S. & R. no. 204 Cooper V. Smith, 8 W. 536. Op Proceedings prom Issue to Trial. 769 identical with a count in the former suit, a deposition taken in such former action may be read in support of it,^'"' and a deposition taken by law may be read in a suit in equity, where the parties and the issues involved are the same.^"* Depositions taken on a rule to show cause why a judgment should not be opened, after the death of the witnesses, may be read on the trial of an issue to determine the validity of the judgment ;^"^ so, also, although the witness be alive, and within the state, if not within forty miles of the place of trial.^"* 26. Lost deposition. The contents of a lost deposition cannot be proved by parol. °°° And a deposition is not competent to prove the contents of an- other paper which was not proved to have been lost.^^" An agreement of counsel concerning facts to take the place of depo- sitions does not become a part of the record, although filed, and will not be considered on appeal. ^^^ Nor are the notes of testi- mony taken before an auditor admissible as depositions without further proof of their correctness. ^^^ Nor are the official sten- ographer's notes of testimony of a witness taken at a former trial of the same issue a deposition.-^^ 27. Deposition in equity suit is admissible in suit at law. A deposition in a suit in equity is admissible in a suit at law between the same parties for the same subject matter.^^* The deposition of an interested witness taken in one proceeding when both the parties thereto are alive, is admissible, after the death of one of them in another suit touching the same subject matter be- tween the survivor and the representatives of the deceased 205 Kohler v. Henry, 4 Pliila. 61. 206 Fulton V. Sellers, 4 Brewst. 42; Eckman v. Eckman, 68 Pa. 460. 207 Haupt V. Henninger, 37 Pa. 138. When a judgment was trans- ferred to another county by mistake and a rule to oppn was made abso- lute, a deposition taken on such rule was admissible on a rule to open in the first county after the death of the witness. Winton v. Finch, 5 Kulp 137- 208 Riegel v. Wilson, 60 Pa. 388. 209 McCally v. Franklin, 2 Yeates 340. 210 McKee v. Reiff, 4 Yeates 340. 211 NicoU V. McCaffrey, i Super. Ct. 187. 212 Matthewson v. Wilson, 7 W. N. C. 29. 213 Smith V. Hine, 179 Pa. 203. 214 Fulton V. Sellers, 4 Brewst. 42; Eckman Estate, 12 Dist. 415, 3 Vale 8856-8867. See §25. 49 770 Common Law Practice in Pennsylvania. party.^^" Where the deposition of a party to a judgment was taken on a petition to open it after notice to the opposite party, it is admissible in evidence on the trial of an issue ordered to try the validity of the judgment.^^® And it may be thus admitted although the party has since died and the other party cannot now testify to matters occurring in the lifetime of the witness whose deposition is oflfered.^^' Again, a deposition may be read in an- other suit between the same parties in regard to the same sub- ject matter when the witness has lost his memory from sickness or old age.^^^ On the trial of an issue devisavit vel non in the common pleas the deposition of an infirm witness taken in the orphans' court on the application for the issue, was admitted in evidence. ^^° If an action is brought by a husband and wife for personal injuries to her and a similar action is brought by him for injuries to himself and he dies before the trial, his deposition read in the trial cannot be read in the other.^^" And if by agreement depositions are admitted in an action and the plaintiff is non-suit- ed, the depositions cannot be read in a second suit without an- other agreement.^^^ II. Commissions for the Examination of Witnesses. When the necessary witnesses in a cause reside altogether abroad, whether in another state, or in a foreign country, it is necessary to obtain a commission from the court (called a dedi- mus potestatem), directed to certain persons, appointed and ap- proved by the parties, to examine such witnesses on interroga- tories.^^^ Under the Philadelphia practice a rule for such com- 21 s Galbraith v. Zimmerman, loo Pa. 376. 216 Steele v. Nichols, 3 Dist. 517. 217 Ibid. 218 Rothrock v. Gallagher, 91 Pa. 108. 219 Commonwealth Title & Ins. Co. v. Gray, 150 Pa. 255. 220 Fearn v. West Jersey Ferry Co., 143 Pa. 122. 221 Acme Mfg. Co. v. Reed, 197 Pa. 359. 222 Commissions may issue out of justices' courts, by virtue of the act 30 March, 1829, 10 Sm. L. 312, 2 Purd. §57, p. 1504. In Buck v. Strong, 6 Dist. 116, 117, Judge Arnold said: "In order to take the testi- mony of witnesses in any of the United States, the usual course is to issue a commission, Bible House v. Gay, 15 W. N. C. 271, but if it is returned insufSciently executed for want of power in the commissioner to compel the witnesses to attend and answer, the court will allow letters rogatory to be issued. Wilkinson v. Starr, 16 W. N. C. 35. The act of Feb. 26, 1831, P. L. 92, 2 Purd. §2, p. 1488, authorizes the persons named in any Oi Proceedings from Issue to Trial. 771 mission is of course, and may be entered by either party in the prothonotary's office, but must be accompanied by interrogato- ries, filed with the rule; and written notice thereof, and of the names of the commissioners, must be served on the adverse party, at least fifteen days before the commission issues, in order that he may file cross-interrogatories, or nominate commissioners on his part.^^^* This may be done by an order to the prothonotary, entitled in the cause, in the following form : "Enter rule in the above case, on behalf of the plaintiff (or defendant), for a com- mission to Liverpool, in the Kingdom of Great Britain, on fifteen days' notice." This must be signed by the party's attorney, di- rected to the prothonotary, and accompanied by interrogatories, at the foot of which should be written: — "Commissioner on be- half of the plaintiff (or defendant), A. B., Esq., of Liverpool."^"'' The respective parties have a right to propose supplemental di- rect or cross-interrogatories, where new or further subjects of in- quiry arise out of the preceding interrogatories of the other party. The interrogatories, together with the cross-interroga- tories, if any, are then annexed to the commission; which is a writ sued out by the party who has entered the rule, and to whom it belongs to transmit it to the commissioners, and to do whatever else is requisite to obtain a speedy and regular examination, and return of the commission.^^^'' If the opposite party name a com- missioner on his part, he must be careful to give the address of the latter clearly and minutely.^^^* If the opposite party do not file cross-interrogatories, or name a commissioner on his part, the commission may issue ex parte. ^^^® commission or rule taken in any court of this commonwealth to issue subpoenas to witnesses under a penalty not exceeding $100, and to issue process of attachment against defaulting witnesses who refuse to attend or testify. But the powers conferred by the act are of doubtful pro- priety and are not invoked, the better practice being to follow the act of March 2g, i860, P. L,- 341, 2 Purd. §11, p. 1490, which invests commission- ers appointed by any court of the United States with the authority vested in commissioners appointed under the laws of Pa. Robb's Petition, 11 C. C. 298, 443. 222a Rule No. 114. 222b The party entering the rule may name two or more commis- sioners; and the commission may be joint or several. Tussey v. Behmer, 9 Lane. 45. 222c I Dunl. Pr. 547. 222d Pigott v. HoUoway, i Binn. 436. 222e Prevail v. Bache, 5 Cr. C. C. 463. If cross-interrogatories be 772 Common Law Practice in Pennsylvania. rule for a commission. A. ] V. > Common Pleas, No. , Term, 191 2. No. B. J And now (date), the enters a rule for a commission to be issued to , Esq., of the city of , State of , to take the testimony of witnesses on the annexed interrogatories to be read in evidence on behalf of the on the trial of the above entitled case. INTERROGATORIES. To be exhibited to and answered by witnesses to be produced, sworn, or affirmed, and examined on the part of the , by the above named commissioner. First interrogatory. What is your full name, age, residence, and occupation? It is necessary to add the following as a final interrogatory: Do you know or can you set forth any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause ? If yea, set forth the same fully and at large in your answer. Number each interrogatory consecutively, and do not crowd too many questions or those upon different points into one inter- rogatory. Indorse the paper as follows : A. >| V. Y Common Pleas, No. , Term, 191 2. No. B. J Interrogatories sur commission to be issued on the part of the to Sir: Enter rule for commission on behalf of , to the city of , State of , on fifteen days' notice to the or his attorney. The names as commissioner on his be- half , Esq., No. , Street, Attorney for (Date.) To Prothonotary C. P. Of Proceedings from Issue to Trial. 773 SERVICE OF rules. Serve a copy of the rule and interrogatories upon the adverse party or his attorney. Indorse upon the copy the following : To , Esq., Attorney for Dear Sir: Please notice rule this day entered for a com- mission on behalf of , to the city of , State of , on fifteen days' notice to the or his attorney. Very respectfully yours, Attorney for (Date.) 29. When it will be issued. A commission will not be awarded until commissioners are named."^^' And a commission to take testimony may be issued in the alternative to two different persons. '-^^ A court will not, prior to trial, pass on the validity of a commission which was is- sued prior to the filing of a plea.'--'' Nor will a court order a witness to examine his books in order to refresh his memory for the purpose of testifying before a commission.-^^ The party who issues a commission must pay all the expense in the first instance though his opponent file cross-interrogations and name a commis- sioner; otherwise when depositions are to be taken in behalf of both parties.^^* The party entering the rule may name two or more commissioners, and the commission may be joint or sev- eral. ^^^ In a divorce a rule for a commission may be entered at any time before making up the master's report.-^" When there are different dates on the commission and the docket entry of its issue, the prothonotary may testify at the trial that the docket entry is correct.^^' Lastly, a deposition taken under a commis- filed, before the commission actually issues, they must be annexed, though not within the time prescribed by rule of court. Case v. Cushman, i Pa. 241. For forms of commission, directions and cross-interrogatories see end of this chapter. 222f Nanstophorst v. Maryland, 2 Dall. 401. 222g Bacheller v. Altick, 14 Lane. L. Rev. 267. 222h Vesturme v. Way, 15 W. N. C. 224. 223 Ladenburg v. Pennsylvania R. Co., 6 Dist. 453. 224 Kinsman v. Tucker, 2 Miles 426. 225 Tussey v. Behmer, 9 Lane. L. Bar 45. 226 Gilbert v. Gilbert, 18 W. N. C. 535- 227 Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73. 774 Common Law Practice in Pennsylvania. sion will be suppressed unless the final general interrogation is in the form prescribed by the equity rules. ''^^ 30. Names of witnesses and interrogatories. It is not a matter of course to compel the party entering a rule for a commission to name the witnesses to be examined; but it depends on the discretion of the court, to be exercised under the circumstances of the case.^^' But such order will be made in a proper case; as, where the cause has been twice on the trial list, and the defendant has declined to give the names of the witnesses proposed to be examined, on demand; and such order will be enforced, by enlarging the time for filing cross-interrogatories, until fifteen days after the names be furnished.^^" The court will not allow an original paper to be attached to a commission, for the inspection of the witnesses — such as a promissory note upon which the suit is brought.^'^ When any of the interrogatories ap- pear irrelevant, the opposite party is at liberty to move the court to strike them off, before the commission issues ; except, however, in a clear case, the court will not thus exclude evidence on any contingent issue ;^'^ but the court may strike out cross-interroga- tories, if clearly irrelevant and impertinent.^^^ The proper course is to propound objections to the interrogatories or cross-inter- 228 Smith V. Cokefair, i C. C. 48. 229 Heaton v. Findlay, 12 Pa. 310; Parker v. Nixon, Bald. 291. 230 Leggett V. Austin, i Clark 310. 231 Kohn V. Teller, 2 W. N. C. 487; Butler v. Lee, 32 Barb. 75. In one case, a circuit court of the United States permitted original printed exhibits to be annexed to a commission, on filing photographic fac similes thereof, under the direction of the clerk. Daly v. Magwire, 6 Bl. C. C. 137- 232 Pingree v. Griffin, Dist. Court, Phila., 27 May, 1848. Why the interrogatories filed should not be stricken off. Per curiam. Where the pleas are so general as non assumpsit and payment, it is impossible to say beforehand, what may or may not be relevant to the question to be finally determined. The matter which, at this stage, may seem to us the most re- mote, may turn out, in reality, to lie at the very heart of the controversy. Every party takes his depositions under a commission, under the penalty of bearing not only his own costs, but those of his adversary, if the evi- dence should turn out to be impertinent. We must, however, wait to see the result before we can determine that. Rule dismissed, and rule for the commission extended fifteen days from this date. 233 Moelling v. Navigation Co., 4 W. N. C. 72. An interrogatory can- not b^ excepted to, because the answer will not make out a case, Mont- gomery's Estate, 3 Brewst. 306. Of Proceedings from Issue to Triai<. 775 rogatories, before the commission issues ;^^* these should be re- ferred to a master for settlement, subject to review by the court; and if there be any doubt of their relevancy, the court will reserve its decision, until the return of the commission.^'^ After the plaintiff has executed a commission, he may have a rule for a new commission, to examine the same witnesses on other matters ;^^° or he may take the deposition of the same witness, within the county.^^' But a party who has neglected to file cross-interroga- tories cannot take a new commission, and under the pretext of a cross-examination, put leading questions to the witness.'''^ 31. When commission is a stay of proceedings. A commission regularly issued, is a stay of all proceedings, so that the plaintiff cannot proceed to trial, or the defendant move for judgment as in case of non-suit, until the court, on application, vacate the rule,^^^ though, if the party who sues out a commission do not use due diligence to get it returned in proper time the court will permit the trial to proceed, notwithstanding the com- mission.^*" What shall be a reasonable time for the execution and return of a commission depends upon the circumstances of the case, such as the remoteness or proximity of the place where the commissioners and witnesses reside, the frequency and facil- ity of intercourse, &c. The period of eight months from the time of obtaining the rule seems to be sufficient for the return of a commission to be executed in Great Britain, or other maritime country in Europe ; and it has been held that three months was a sufficient time for executing and returning a London commis- sion.2" 32. Notice, (g) A commission to examine witnesses in another state, is gov- g 3 Vale 8869. 234 The objections should be taken by exception, not by rule. Mc- Curdy v. Connecticut General Life Insurance Co., S W. N. C. 211. 23s Cocker v. Franklin Hemp and Bagging Co., i Story 169. See Macdonald v. Garrison, 2 Hilt. 510; Blais^ell v. Raymond, 9 Abb. Pr. 178 n. 236 Hook V. Hackney, 16 S. & R. 385. 237 Hoffman v. Kissinger, i W. & S. 277. 238 McKinney v. Dows, 3 W. 250. 239 Brain v. Rodelicks, i Caines 73. 240 Cooper V. Mitchell, i Phila. 73. 241 Coles V. Thompson, i Caines 517; Pell v. Bunker, 2 Caines 46. 776 Common Law Practich; in Pennsylvania. erned by the rules of chancery, which require written notice of the order, and of the names of the commissioners, to be served on the adverse party, at least fifteen days before the commission issues ; there must be such reasonable designation of them as will inform the party where they may be found."*^ Unless such no- tice be given, the depositions taken under the commission cannot be read.^*' Where an executor dies, notice of the execution of a commission cannot be served upon his executor; an administra- tion de bonis non must be raised.^** An objection that the com- mission issued on a shorter notice than required by rule of court, is waived, by filing cross-interrogatories.^*® The commissioner may take proof of the due service of notice upon the commis- sioner named by the other party, of the time and place of execu- ting the commission; and in such case, notice to the party him- self need not be shown.^*" If the commission issue ex parte, no- tice of the time and place of executing it need not be given.^*' A notice of the taking of depositions on a day certain, to be ad- journed from day to day, until completed, is valid, and deposi- tions taken under it, at an adjourned day, may be read.^** A bona fide substantial compliance with the rule concerning no- tice is sufficient; the omission of the commissioner's Christian name will not vitiate a deposition with no other defect.^** The commissioners may take proof of the due service of notice on the commissioner named by the other party of the time and place of executing the commission.^®^ In such case notice to the party himself need not be shown.^®^ The law with respect to the time of notice must be duly regarded, therefore a deposition taken 242 Patterson v. Greenland, 37 Pa. 510. 243 Coxe V. Ewing, 4 Yeates 429; Van Amringe v. Ellmaker, 4 Pa. 281. 244 Montgomery's Estate, 3 Brewst. 306. 24s American Insurance Co. v. Francia, 9 Pa. 390. 246 Tussey V. Behmer, 9 Lane. Bar 45. 247 Prevail v. Bache, 5 Cr. C. C. 463. 248 Knode v. Williamson, 17 Wall. 586. See Buddicum v. Kirk, 3 Cr. 293- 249 Kellum V. Smith, 39 Pa. 241. Depositions taken by agreement of counsel without leave of court cannot be recognized as properly before the court, as they are taken in disregard of its practice. McManemin's Estate, II Dist. 338. 251 Tussey v. Behmer, 9 Lane. Bar 45. 252 Ibid. Of Proceedings from Issue to Trial. T/^ under a commission without fifteen days' notice of the time and place as required by a rule of court, will be suppressed.^^^ And when a commission is issued under a special rule to take the tes- timony of a witness on four days' notice, to be used before a referee, it is not within his discretion to refuse to admit the tes- timony on the ground that the issuing of the commission on four days' notice was contrary to the rules of the supreme court and of the common pleas.^°* And if there be no certificate by the ex- aminer of notice in a divorce case the court may refer the report back to the examiner. ^°^ 33. Execution of commission, (h) Commissions for the examination of witnesses now run jointly and severally ; notice is given to all the commissioners, and if any neglect or refuse to attend, or cannot be found, the others are at liberty to proceed without him;^°" but the commission cannot be executed by one of the commissioners and a third person. ^^^ Where a commission is directed to several commissioners, resid- ing in different counties, one of them may take depositions in a county named, though not that of his residence.^'* A commis- sion issued to George Dunlair is not well executed by George Dunbar ;^^® where, however, a commission is returned by a per- son of the same name with the commissioner to whom it was di- rected, there is a presumption of identity.^'" If the law of the foreign country prohibit the execution of the commission, by un- official persons, the depositions may be taken before a judge of the country, in their presence.^"^ The testimony must be taken in the absence of the attorneys for the respective parties; if one of them were present, though taking no part in the examination, h 3 Vale 8870. 253 Beatty v. Lehigh Valley R. Co., i North. 308. 254 Vansant v. Fishel, i York loi. 255 Newhart v. Newhart, 8 Kulp 288. 256 Berghaus v. Alter, 9 W. 386; Pennock v. Freeman, i W. 401. See Louden v. Blythe, 16 Pa. 532. 257 Kingsbury v. Kimball, 32 Pa. 518. And see Banert v. Day, 3 W. C. C. 243; Willings v. Consequa, Pet. C. C. 302. 258 Nussear v. Arnold, 13 S. & R. 323. 259 Breyfogle v. Beckley, 16 S. & R. 264. 260 Wallace v. McElevy, 2 Grant 44. See Newton v. Porter, 69 N. Y. 133- 261 Winthrop v. Union Insurance Co., 2 W. C. C. 7. 778 Common Law Practice in Pennsyi^vania. it vitiates the execution.^"^ The commission confers power to ad- minister an oath to the witnesses ;''°' but it is not necessary the witnesses should be sworn by the commissioners ; if the oath were administered by a justice, it will be presumed to have been done in their presence,^"* and if the caption state that the witness was duly sworn, it is not vitiated by a statement in the certificate, that he was first duly sworn "to testify the truth."^*° 34. Authority of commissioner. Depositions taken under a commission need not show the com- missioner's authority f^'^ for the commission itself is sufficient for the purpose.^*' Nor need the fact appear on the face of the return that the commissioner was sworn.^'* A commission to take testimony issued by another state is sufficiently authenticated if it bears what purports to be the seal of a court of such state.-^® Such a commissioner is an officer of the appointing court and has the power to fix his compensation.''^'' On the issuing of a com- mission to take testimony each party may name a commissioner, the names of the witnesses intended to be examined need not be set forth, but the court may require this information for a prop- er reason. The relevancy and propriety of the testimony and the interrogatories can always be determined on the return of the commission.'"^ Under the act of Feb. 27, 1798,^'^ a commis- sion cannot issue a subpoena duces tecum without application to the court and notice to the opposite party.^^* Depositions may be taken in shorthand and typewritten.^'* A commission directed to two cannot be executed by one with- 262 HoUister v. HoUister, 6 Ea. 449; Cunningham v. Otis, i Gall. 166. Otherwise, if the depositions be taken on letters rogatory, in the usual course of procedure in the foreign tribunal. Kuehling v. Leberman, 9 Phila. 160. And see Loewenstein v. Biernbaum, 6 W. N. C. 452. 263 Frank v. Colhoun, 59 Pa. 381. 264 Vaughan v. Blanchard, 2 Dall. 192; Lincoln v. Battele, 6 Wend. 475- 26s Clarke v. Benford, 22 Pa. 353. See Keene v. Meade, 3 Pet. i. 266 Smith V. Cokefair, 8 C. C. 45. 267 Ibid. 268 Tussey V. Behmer, 9 Lane. Bar 45. 269 Mencke v. Strause, 17 Phila. 104. 270 Peters v. Rand, 108 Pa. 255. 271 Lowry's Estate, 4 Dist. 691. 272 2 Purd. §1, p. 1487. 273 Trimble, Sides & Co. v. MulhoUen, 8 Dist. 441. 274 Satterlee v. Aultman & T. M. Co., 9 Dist. 73. Of Proceedings from Issue to Trial. 779 out notice to the commissioner of the other party."® And if a commission is executed by a person whose name is written slight- ly different from the name to whom the commission was issued but there is no evidence that they are different persons, and es- pecially if no exception is made to the commission on that ground within the time allowed by the rule of the court, the objection is without merit."« EXCEPTIONS TO THE FORM (OR EXECUTION) OF A COMMISSION. A. B. ^ V. > Common Pleas, No. , Term, 1912. No. CD. J Specification of exceptions on the part of the plaintiff (or defendant) to the form (or execution) of the commission in the above case. 1. Because the witness was not sworn. 2. Because the witness did not sign his deposition. 3. Because the deposition of the witness was not reduced to writing by the commissioner in the presence of the witness. 4. Because the witness refused to answer the second cross- interrogatory. 5. Because the witness has not fully answered the seventh cross-interrogatory. Any other specifications will be according to the facts. E. F., Attorney for (Date.) 35. Compulsion of attendance of witness. It has been held that our courts have authority to compel, by attachment a witness to appear before a commissioner appointed by a court in another state to take his testimony.^^^ The con- trary view, however, is more generally maintained,^'* and espe- cially if the witness is requested to produce the private books of 27s Hoofnagle v. Bering, I Yeates 302. 276 Vansant v. Fishel, i York loi. 2^7 Robb's Petition, i Dist. 640; Bliss v. Milholland, 10 Dist. 201. 278 Kotz V. Ellenberger, 9 C. C. 340. See opinion of Judge Wiltbank reviewing the cases. Simpler's Petition, 10 Dist. 141. 780 Common Law Practice in Pennsylvania. account of a national bank of which he is merely clerk for the scrutiny of a stranger between whom and the bank there is no relation.^^" The court will not order a witness to examine his books in order to refresh his memory for the purpose of testi- fying before a commissioner. A court will not permit a party to resort to this mode of proceeding for the purpose of fishing up a defense or making an attack on the other party.^*° Exceptions to the execution of the commission will not be sustained for an immaterial though formal error.^*^ Thus the validity of the ex- ecution of the commission is not affected by the fact that the com- missioner signs throughout as notary public except on the seal of the envelope in which he returns his testimony."^ Nor will a commission be returned to the commissioner for correcting a mere oversight in failing to certify that the witnesses were exam- ined separately when it appears that they were thus examined.^*^ Deficiencies in the form of depositions can be corrected by amendment and on exceptions they should be recommitted to the commissioner for amendment.^^* "Testimony of witnesses," says Judge Arnold,-''^ "who do not reside within the state may be taken by a commission to any of the United States or foreign parts, in which case the examination is conducted by a commissioner or commissioners on written in- terrogatories and cross-interrogatories.^'^ Neither the parties nor their counsel have a right to be present at the execution of the commission,^'' for the reason that the witnesses might be prompt- ed or examined on interrogatories or cross-interrogatories which have not been filed, although the parties may, by agreement, be present and put additional interrogatories or cross-interrogato- ries. The commissioner acts under the authority of the court and has power to administer an oath to the witness."^'* 279 Ibid. 280 Raub V. Van Horn, 133 Pa. 573; Pennsylvania Co. v. Phila. & Nor- ristown Co., 20 Phila. 332; Landenbiirg v. Pennsylvania R. Co., 6 Dist. 453- 281 Neill's Estate, 6 W. N. C. 256. 282 Delaware & Hudson Canal Co. v. Webster, 18 W. N. C. 339. 283 Arnold v. Lightner, i Dist. 791. 284 W. F. Main Co. v. Dreifus, 15 Dist. 620. 28s Buck v. Strong, 6 Dist. 116, 117. 286 Phila. rule 51. 287 HoUister v. Hollister, 6 Pa. 449; Patterson v. Greenland, 37 Pa. 510; Harper v. Young, 17 Phila. 109. 288 Frank v. Calhoun, 59 Pa. 381. Of Proceedings from Issue to Triai.. 781 It is no ground of objection that at the execution of a commission both parties appear with counsel,^'^ and the presence of the opposite party's counsel does not vitiate the pro- ceeding.^'" But an opposing party will not be allowed to call witnesses in his behalf before the commissioner named by the other side by agreement.^'^ 36. How they should answer. It is not necessary that the interrogatories should be incorporated in the deposition, if severally answered ;-°^ it is enough that they be substantially answered, in the course of the deposition;^'' but each interrogatory must be separately answered, at least, in sub- stance ;-'* interrogatories, however, directed to be put to the wit- nesses of one party need not be put to those of the other ;^'^ and it is sufficient that the witness refer to his answer to a former interrogatory as containing all his knowledge on the subject.^'" It is a fatal objection to the execution of a commission, that the last general interrogatory is not answered ;^'"^ but the court may return the commission for that purpose.^'* A paper intended to be given in evidence must be proved before the commissioners, on oath;-" to enable the witness to testify to its genuineness, the original must be exhibited to him,'"" and it must be described in the body of the deposition, and either annexed, or so marked as to be identified;'"^ but if so marked, it may be identified by 289 McCullough's Estate, 5 C. C. 87. 290 Leowenstein v. Biernbaum, 6 W. N. C. 452. 291 McCullough's Estate, 5 C. C. 87. The action of the court on ex- ceptions to the answers attached to a commission does not affect the rights of the parties except as to matters relating to the mere execution of the commission. Colwell's Estate, 43 L. I. 99. 292 Clarke v. Benford, 22 Pa. 3S3. 293 Louden v, Blythe, 16 Pa. 532; Nelson v. United States, Pet. C. C. 235- 294 Ketland v. Bissett, i W. C. C. 144; Withers v. Gillespy, 7 S. & R. 10. 29s Pigott V. Holloway, i Binn. 436. 296 Tussey V. Behmer, 9 Lane. Bar 45. 297 Richardson v. Golden, 3 W. C. C. 109; Dodge v. Israel, 4 W. N. C. 323; Kimball v| Davis, 25 Wend. 259. 298 Hinkley v. Insurance Co., 4 Pa. 470. 299 Jones V. Ross, 2 Dall. 143. 300 Weidner v. Conner, 9 Pa. 78. 301 Petriken v. Collier, 7 W. & S. 393; Susquehanna & Wyoming Val- ley Railroad Co. v. Quick, 61 Pa. 328. 782 Common Law Practice in Pennsylvania. parol."'^ The depositions need not be in the handwriting of the commissioners;^"' they may employ a clerk for that purpose;'"* but the jurat must be signed by the commissioners with their names of office."'^ It is usual to accompany a commission with minute instructions to the commissioners, both as to the manner in which they are to proceed to take the examination of the wit- nesses, and as to the cautions to be observed in returning the com- mission, after the depositions have been taken ; commissioners can seldom commit an error, if they read their authority with care, which it is their duty strictly to pursue, and recollect that, though nominated by a party, they are not his agents, but are appointed by the court.'"^ A bona fide substantial compliance with the rules of court, is not to be defeated by a mere technicality.'"' It is sufficient that the witness refer to an answer to a former interrogatory as containing his entire knowledge on the subject.'"' When a commission in a divorce proceeding issues to another state the interrogatories should be framed by the party entering the rule and not by the master.'"^ The cross-interrogatories should be confined strictly to the matter of cross-examination, and may be propounded immediately after the witness has an- swered the direct interrogatories.'^" Objections to the interro- gatories filed upon a commission should be made and disposed of before the commission goes out, but the defendant may object to the relevancy of the testimony when it is returned and offered in evidence.'^^ And an interrogatory should be so framed as to give the defendant as well as the plaintiff the benefit of the question.'^^ When they are so numerous that it would be diffi- cult to frame cross-interrogatories the court will grant leave to the opposite party to attend the execution of the commission and 302 Dailey v. Green, 15 Pa. 118. See Brumshill v. James, 11 N. Y. 294. 303 Moulson V. Hargrave, i S. & R. 201. 304 Keene v. Meade, i Pet. i ; s. c. 3 Cr. C. C. 51. 30s Root V. Stiles, 3 Caines 128. 306 For letter of instructions see Dunl. Forms 245. 307 Sweitzer v. Meese, 6 Binn. 502; Wright v. Waters, 32 Pa. 5x4; Kellum V. Smith, 39 Pa. 241. 308 Tussey V. Behmer, 9 Lane. Bar 45. 309 Gilbert v. Gilbert, 18 W. N. C. 347. 310 Bell V. Bell, 9 W. N. C. 509. Contra, — Zane v. Zane, i W. N. C. 123. 311 Bacheller v. Altic^c, 14 Lane. L- Rev. 267. 312 Ibid. Of Proceedings From Issue to Trial. 783 cross-examine orally.'^^ And when both parties join in a com- mission, the commissioners on both sides attend, and the plaintiff is present at the taking of the depositions, he cannot object that the witnesses have not answered all the interrogatories.^^* An exception cannot be made to an interrogatory because the answer will not make out a case.^^' Nor is an interrogatory which begins "state whether or not" leading.'^^ Formerly the practice had been to confine the examination of witnesses before commissioners appointed by outside courts to the written interrogatories accompanying the commission. This was based on the firm ground that "since our courts can have no knowledge of the issues other than as written in the interrogato- ries, they ought not to compel a citizen of this state to submit him- self to an oral examination over which they can have no direct control or supervision."'^' By the act of 1911,'^* however, the oral testimony of a witness may be taken before such examiner. 37. How errors of commissioner may be treated. The question whether the commissioner acted as a mere agent of the plaintiff is a preliminary one for the trial court. '^° A de- position may be read though it has been sent back to the commis- sioner to add an inadvertent omission.'^" Nor will a deposition taken under a commission be excluded merely because the in- dorsement thereon was not under seal and because the commis- sioner signed as a notary public.'^^ And when objections to a deposition taken on a commission are made first on the trial in disregard of a rule requiring such objections to be taken by ex- ception within a specified time, it is not error to admit it although the form of the final interrogatory is not in compliance with the Equity Rules.3" 313 Parsons v. Middleton, g Dist. 53. 314 Stewart v. Ross, 2 Dall. 157. 315 Montgomery's Estate, 3 Brewst. 306. 316 Ibid. 317 Moschzisker, J., Neilson's Appeal, 230 Pa. 540, 542; Miller v. Dowdle, I Yeates 404. 318 Purd. Supp. §4, p. 264. See §6. 319 Shaak v. Shaak, 31 L. I. 356- 320 Jenkins v. Anderson, 8 Sadler 363. 321 Rhees v. Fairchild, 160 Pa. 555. 322 Equity rules 55, 57; Davis Shoe Co. v. Kittaning Ins. Co., 138 Pa. 73- 784 Common Law Practice in Pennsylvania. 38. Return of commission, (i) There must be a strict compliance with the rules of court in respect to the return of a commission ; but if inadvertently omit- ted, it will be returned to the commissioners for re-execution;'^' a proper return is indispensable to the reading of the deposi- tion.'^* The union of the commissioners in sealing the return, and in indorsing the seals on the envelope, tends to prevent mis- take, accident or fraud.'^^ That the return, however, was di- rected to the plaintiff's attorney, and the deposition was submit- ted to and examined by the defendant's attorney before filing, though irregular, is not ground for excluding the deposition.'-* It is the duty of the party to file the return, where both parties have joined in the execution f" but that the return is not marked "filed," is no objection to the deposition, if filed in fact.'^' 39. Court rule. "On the return of any commission or letters rogatory, it shall be opened by the prothonotary or his deputy, who shall mark upon the envelope and upon the commission or letters, his name and the date of the opening and filing, and shall give notice to the parties, who may, within ten days after service of such notice file exceptions to the form or execution thereof, to the manner of swearing the witnesses, or to the acts or omissions of the commissioners, officers, or any other person in or about the execution thereof. No exceptions to the admissibility of the evidence so returned and filed, not included in such exceptions, shall be taken on the trial of the case, except upon the ground that the evidence is irrelevant to the issue: provided, however, that the answers or depositions of a witness residing within the state shall not be read, unless the party offering them shall sat- isfy the court that the witness could not be obtained for trial."'^° "When exceptions are filed, the adverse party, within ten days after their filing and before the trial of the case, may order them upon the current motion list and the decision of the court there- i 3 Vale 8870. 323 Wain V. Freedland, 2 Miles 161 ; Smith v. Cokefair, 8 C. C. 45. 324 Scott V. Horn, 9 Pa. 407. 32s Wain V. Freedland, 2 Miles 161. See Kingston v. Lesley, 10 S. & R. 383- 326 Clarke v. Benford, 22 Pa. 353. 327 New York State Bank v. Western Bank, 2 Miles 16. 328 Summers v. Wallace, 9 W. 161. 329 Phila. rule No. 116. Of Proceedings from Issue to Trial. 785 on shall not be reconsidered at the trial ; but exceptions to their admission or rejection will be granted at the trial, if re- quested."=2»» A mere formal objection must be made within the time, and in the mode, prescribed by the rule of court f^" but if an exception be filed within the time prescribed, an objection for irregularity may be made on the trial.''^ III. Of Letters Rogatory. 40. When they may be issued.(j) By the statute of 1833''^ our courts have power to compel the attendance of witnesses for examination on letters rogatory. Nevertheless, as Judge White ^^^ has remarked, "they existed be- • fore any statute on the subject. They arose from the principle of comity between friendly nations or independent states. As one nation could not compel the attendance of witnesses from another nation, justice would often fail unless there could be some mode of getting their testimony. This was accomplished by a letter from the court in which the suit was pending, to a court in the other nation, asking for assistance in obtaining the testimony of witnesses residing within its jurisdiction, and a promise to do the like favor if that court should need the testi- mony of witnesses within its jurisdiction." Since the creation of commissions for obtaining such testimony, the need of resorting to the older method rarely exists. Indeed, "letters rogatory are only necessary where the state will not permit a commission to be executed."^^* Letters rogatory from foreign courts, however, will be enforced in Pennsylvania in civil cases by our own meth- ods of procedure and the usual processes, not by those of the country from which the letters issue.'^® Consequently it will not j 3 Vale 8879- 329a Phila. rule No. 117. By an order of the orphans' court a com- missioner was sent abroad to take testimony as to who were decedent's next of kin. The testimony taken was confined to the relatives of de- cedent's father. Neither party could rightfully object to the court's order requiring the commissioner to go broad again and complete the testimony. Flanagan's Estate, 207 Pa. 490. 330 Syphers v. Meighen, 22 Pa. 125. 331 Cunningham v. Jordan, i Pa. 442. 332 April 8, §18, P. L. 308, 2 Purd. §6, p. 1489. 333 Robb's Petition, I Dist. 367, 368. 334 Ibid. 368. 335 Opinion of attorney general, 2 Dist. 624. SO 786 Common Law Psacticb in Pennsylvania. receive such letters to enforce testimony for use in a criminal case in a foreign court.^** 41. Act of 1833. Legality of letters. Such an application was made by an Ohio court in 1897 to a court in Pittsburgh.^'' The statute of 1833 was invoked to com- pel their execution by the court to which application was made. This act did not in truth confer jurisdiction, it merely prescribed the manner of executing the letters after they were received.'^' Every presumption favors the legality and regularity of such a request, made by a foreign court, but is not conclusive. "It is not enough to call papers 'letters rogatory,' " said Judge Slagle,'^' "they must be such in fact. If the objection is they do not con- form to the general law which governs all courts, that may be de- termined by the court to which they are addressed. If the ob- jection is that they are not in accordance with the laws or prac- tice of the state from which they come, they must be determined by the courts of that state.'"" 42. Practice. "The proper practice in objecting to the action of the court re- ceiving the letters is to file formal objections. Our statute does not authorize the examination of witnesses viva voce ; the exam- ination is limited to the interrogatories filed in the foreign court and annexed to the letters rogatory." Consequently an applica- tion for such an examination of the witnesses as counsel should "seem fit" ought to be refused. "No rule of comity," said Judge Slagle, "requires us to subject any citizen of this state to the possibility of an improper exercise of such an irresponsible power. Nor do we think that any court should issue its process and preside at its execution with the power to enforce and none to restrain, even if it had the right to do so. It may be said that it was not intended to have such an effect."'*^ form op letters rogatory.'*'' United States, ) > w District oe Pennsylvania, j The President of the United States, to any judge or tribunal, having jurisdiction of civil causes at Havana, greeting: 336 Ibid. 337 Doubt V. Pittsburg & Lake Erie R. Co., 6 Dist. 238. 338 Ibid; Robb's Petition, i Dist. 367. 339 Ibid; Mackenzie's Case, i Clark 356. 340 Ibid. 341 Ibid. 342 See p. 840 for form of cross-interrogatories. 342a This form was used in Nelson v. United States. 1 Pet. C. C. 236. Of Proceedings from Issue to Triai,. 787 Whereas a certain suit is pending before us in which John D. Nelson, Henry Abbott, and Joseph E. Tatem are the claim- ants of the schooner "Perseverance" and cargo, and the United States of America are the defendants; and it has been suggested to us that there are witnesses residing within your jurisdiction without whose testimony justice cannot completely be done be- tween the said parties. We therefore request you that, in furtherance of justice you will, by the proper and usual process of your court, cause such witness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to appear before you, or some competent person by you for that purpose to be ap- pointed and authorized, at a precise time and place by you to be fixed, and there to answer on their oaths and affirmations to the several interrogatories hereunto annexed; and that you will cause their depositions to be committed to writing and re- turned to us under cover, duly closed and sealed up, together with these presents. And we shall be ready and willing to do the same for you in a similar case when required, witness, etc. 43. Effect of compromise on depositions taken pending litigation. When depositions were taken under letters rogatory pending litigation over a will, but were not filed in court, remaining in the custody of counsel for the proponent, and subsequently a compromise was effected which put an end to the controversy, the status of the depositions was held to be a part of the com- promise agreement, and that the court would not order them to be filed.'" V. Nonsuit for not Proceeding to Trial. 44. Distinction between non pros and non-suit A non pros is clearly distinguished from a judgment of non- suit. This involves the non-appearance on call of the plaintiff, or such defect in his law or evidence as renders further procedure impossible or impolitic; non pros is a judgment by default for laches.*** A non-suit, therefore, entered instead of a non-pros for want of a declaration will be stricken off.'*^ 343 Pepper's Estate, 3 Dist. 175. 344 Walton V. Lefeverer, 17 Lane. L. Rev. 203; Derrickson v. Colonial Trust Co., 17 Dist. 80, 82. 345 McElroy v. Reading, 7 Phila. 433. 788 Common Law Practice in Pennsyi Common Pleas, Term, 1912. No. 100. CD. 1 City and County of , ss.: , being duly sworn according to law, doth depose and say that , the plaintiff in the above case, has in his possession books and documents which contain evidence perti- nent to the issue in said case, viz. : 1. Original entry cash book, without titles, kept by or for the as treasurer of said plaintiff, from to 2. Journal A, kept as aforesaid. 3. Journal B, kept as aforesaid. 4. All check and bank books of the said , as treasurer of the plaintiff, individually or otherwise with the Bank, Bank, and the Bank, all of the city of Easton. 5. All warrants paid by said , as treasurer aforesaid, during the period above mentioned. 6. All cash orders of , another officer of the plaintiff, during the period above mentioned. And the deponent applies for a rule upon the plaintiff to produce said books and papers on the trial of the above case, according to the Act of Assembly in such case made and pro- vided. Sworn to and subscribed before me, "^ the day of , 1912. W (Signature.) ORDER OF COURT. And now (date), on motion of , pro , rule granted on to show cause why he should not produce at the trial of the within mentioned case (the books, etc., desired) in the possession of the said Rule returnable . Proceedings to stay. (Initials of Judge.) 729 Robins v. Hansell, i W. N. C. 314. 730 Strawn v. Park, I Phila. 104. See Withers v. GiUespy, 7 S. & R. II. Of Proceedings from Issue to Trial. 837 88. Proceedings at trial. If the rule be made absolute, it is incumbent on the party, if he fail to produce, to satisfy the court, that the books are truly beyond his control -p^ the order is conclusive only as to the per- tinency of the document; the defendant may show his inability to produce."^ But the judge, at nisi prius cannot inquire whether the documents are pertinent to the case, or would be evidence, if produced;'^'' when produced, however, the question of rele- vancy is opened."* When the case is called for trial, the de- fendant's agent is competent to excuse the non-production;"' the loss of the paper may be proved by witnesses ; it is not abso- lutely necessary that the party should be examined ;"" but an ex parte, affidavit that the books have been accidentally destroyed by fire, is not sufficient; the opposite party is entitled to a cross- examination.^^' A nonsuit will not be granted, if the non-pro- duction be satisfactorily explained; nor where the plaintiff is entitled to recover upon other counts of his declaration;'^^ so, he may answer a rule to produce his books, by swearing that he has none.'^* In case of non-production, a notice of motion for 731 Coleman v. Spencer, i Phila. 271. 732 Gilpin V. Howell, S Pa. 42. 733 Tuttle V. Mechanic's and Tradesman's Loan Co., 6 Wh. 216. 734 George v. George, Dist. Court, Phila. Rule to produce papers. Per curiam. The answer admits the possession of the paper asked to be produced, but denies the materiality or relevancy of it to the issue. Ac- cording to Tuttle V. Mechanic's and Tradesman's Loan Co., 6 Whart. 216, the rule is conclusive upon the judge, on the trial, on the question of pertinency; but that "whether, on being produced, it would be competent evidence, is another question, which cannot arise, when the party with- holds the evidence at the trial, and refuses to produce it under the rule." It is plain, then, that on the trial, the materiality or relevancy of the papers, as well as its proof, if the custody from which it comes is not enough to prove it, must be decided, because these are all involved in the question of its competence. What is decided, then, by the rule or order, is, that the paper ought to be produced or its absence accounted for, and this decision cannot be reviewed on the trial, by arguments addressed to the pertinency of the paper, without the production of it, though these arguments, urged against its competence, may exclude it from the jury. Rule absolute. 735 Silliman v. MoUoy, 4 Phila. 44. 736 Gilpin v. Howell, 5 Pa. 42. 737 McNair v. Wilkins, 3 Wh. 554. 738 Foster v. Sandeman, S Phila. 133. 739 Cottrell V. Warren, 18 Pa. 487. But, it would seem, this ought to have been done, in answer to the rule. 838 Common Law Practice in Pennsylvania. judgment is not requisite;^*" proceedings under this act are so much in the discretion of the court, that it will require a strong case to induce the supreme court to reverse the judgment.''*^ In replevin, on a distress for rent, where the lease is in the hands of the plaintiff, it will be ordered to be produced and placed in the hands of a proper person, and default thereof, the defendant will be entitled to judgment in his favor, for the rent dueJ*^ Books, when produced in obedience to an order, are in the custody of the court.'*^ 89. Order for inspection. In general, a party will be allowed the inspection of a docu- ment wherever he has a common interest in it, without regard to the right of custody, and at a convenient period before the trial. Thus, in an action to recover certain money alleged to have been received by the defendant to the use of the plaintiff, being the proceeds of sale in a foreign port, of the goods on board of a certain vessel, part of which goods were owned by the plaintiff, and part by the defendant, the court made an order that the plaintiff permit the defendant, on reasonable notice, to inspect a certain paper, being the account-sales of the goods on board the vessel, which had been obtained by the plaintiff from a third person; and to have a copy of it made at his (the defendant's) charge, by a person designated by the plaintiff.''** And in an action for personal injuries, the court may make an order for a medical examination of the person of the plaintiff, for the pur- pose of ascertaining the character and extent of his injuries.''*^ It has been held that papers material to the trial of the posses- sor, and which he must produce at the trial, cannot be demanded in advance of trial by the other party.'*^ This rule however does not prevent the court from ordering their production when pertinent to a question it must decide.'^'"^ Moreover when there is 740 Wills V. Kane, 2 Grant 47. 741 Cowles V. Cowles, 2 P. & W. 139. 742 Hurd V. Ryan, Dist. Court, Allegheny. 743 Beals V. See, 10 Pa. 58. 744 Arrott V. Pratt, 2 Wh. 566; Raub v. Van Horn, 133 Pa. 573. 745 Schroeder v. Railroad Co., 47 Iowa 375; Pioso v. Equitable Life Assurance Society, 12 Dist. 51 ; Pennsylvania Co. v. Phila. & Norristown R. Co., 20 Pa. 332; Simmons v. Hoffman, 6 Dist. 218. 746 Rice V. West, 7 Dist. 764. 747 Hildreth v. Davis, 6 Kulp 286. Oe Proceedings from Issue to Trial. 839 an issue either direct or collateral on the forgery of a paper their production in advance of the trial may be compelled/** FORMS OF ANSWER. The following forms of answer may be made to the rule : FORM OF ANSWER. A. B. ^ V. > Common Pleas, , Term, 19 . CD. J To the Honorable the Judges of the Court of Common Pleas of the County of Northampton. In answer to the rule granted upon the plaintiff in the above case to show cause why certain books and papers should not be produced at the trial of the case, the said plaintiff answers and says: He has in his possession the following books and papers men- tioned in the said rule : Journal A. Journal B. Bank book of Bank, beginning Check book Bank, to Check book Bank, to Check book Bank, to Check book Bank, to Check book Bank, Original entry cash books (called by the plaintiff journals) kept by , as treasurer, from to All warrants paid by , as treasurer, from to All orders of during said period. The other books and papers called for in said rule are not now, and never have been, in the possession of plaintiff, and he cannot produce the same. County of Northampton, ss. , being duly sworn, says that the facts set forth in the foregoing answer are true. Sworn to and subscribed before me," this day of , A. D. 1912. Notary Public. 748 Dock V. Dock, 180 Pa. 14- (Signature.) 840 Common Law Practice in Pennsylvania. If the party wish to deny the pertinency of the books called for, he should add to his answer the following : And the denies that the said books or any of them mentioned in the affidavit of the , upon which this rule was granted, are pertinent to the issue in this case. If he wish to deny the possession of the documents he should aver : The avers that the said papers are not now, nor any of them, nor were they or any of them at the time said rule was taken, or at any other time, in his possession, power, or in any way under his control. FORM OF cross-interrogatories TO LETTERS ROGATORY. A. B. ^ V. > Court of Common Pleas, Term, 1912. No. CD. J The , by (name) his attorney, reserving all legal ex- ceptions to the interrogatories-in-chief, files the following cross- interrogatories to be propounded to witnesses sworn or affirmed, and examined under the commission to be issued in the above case: First cross-interrogatory. What is your age, occupation and residence? and state also how long you have been engaged in your present occupation, and how long you have resided at your present residence. Second cross-interrogatory. Do you know the to this suit? If so, state how you became acquainted with him. Third cross-interrogatory. Are you in any and what manner connected with any of the parties to this suit by consanguinity or affinity? Are you now, or have you ever been, engaged with any of them in any business, speculation, or adventure? Are you on terms of intimacy with any of them? Are you now, or have you ever been, or do you expect to be, and if so, how long, and at what salary or upon what terms, in the employ of the party by whom you have been called as a witness in this suit, or of any other person who has an interest in the event of the suit? Fourth cross-interrogatory. Have you now, or have you ever had, or have any of your family or connections, any interest, direct or indirect, near or remote, great or small, in the matters inquired of in the interrogatories-in-chief, or in any question involved in this cause, or in any similar question which may Of Proceedings erom Issue to Tkjai,. 841 now be pending or may hereafter arise in any other suit or proceeding commenced or to be commenced? Will you, or any of your relatives, be in any manner affected by any decision which may be made in this cause. Please state the particulars. Fifth cross-interrogatory. At whose request did you present yourself to be examined under this commission? Were you or were you not subpoenaed to attend before the commissioner? How did the person requesting your attendance know that you had any knowledge on the subject? What conversation oc- curred between the said person and yourself at the time of your being requested to attend, or at any other time? Have you held any, and what, conversation with any other persons, and whom, in regard to your testimony in this cause? Have you been pre- viously examined under oath or otherwise, and if so, when, where, and by whom, on the subjects inquired of in the inter- rogatories-in-chief ? Have you received any letters or communi- cations of any kind from the party by whom you have been called as a witness, or from any person on his behalf, respecting the matters in controversy in this suit? If aye, annex the same to your answers. Sixth cross-interrogatory. Have any and what arrangements, promise, or agreement been made by anyone with you, or, so far as your knowledge extends, with any other witness in the cause in regard to his or your compensation as a witness or for any service rendered or to be rendered in the cause by you or by such other witness? Have you contributed anything toward the expenses of carrying on the suit, and are you to receive any remuneration or return in case of success? 'State fully and mi- nutely all your knowledge and information in relation thereto. Seventh cross-interrogatory. If in any of your answers you profess to give or refer to any declaration or conversation of any of the, parties, state particularly when and where it took place and who were present, and where the person or persons so present are now to be found or were to be found at your last knowledge of any of them. Eighth cross-interrogatory. In every instance in which you state a fact, mention from whom you derived your information or heard what you state, at what time or times, and whether it has been since the institution of this suit ; give all the sources and particulars of your knowledge, and state also whether you have any written memoranda of the circumstances, persons, places, or 842 Common Law Practice in Pennsyi^vania. dates to which you refer in your answer; and if so, annex the said memoranda to your deposition. Ninth cross-interrogator. If in your answers to any of the interrogatories you annex or refer to any paper, letter, or docu- ment, state particularly from whom, when, where, and by what authority you became possessed of the same. Tenth cross-interrogatory. If after reading or hearing read to you the cross-interrogatories which follow the present cross- interrogatory, you know or can recollect any other matter or thing which is or may be material or of advantage to the party filing the cross-interrogatories, and which is not responsive to the fore- going or to the succeeding cross-interrogatories, please state the said matter or things as fully and minutely as if specially inter- rogated thereto. The subsequent cross-interrogatories should be prepared in the light of the interrogatories. They should be minute and clear. The names as commissioner on his behalf , Esq., No. Street, Attorney for (Date.) RBPUSAI. TO FILE CROSS-INTERROGATORIES. The adverse party may not wish to file cross-interrogatories, but may desire to name a commissioner. In such case he files the following paper: A. ^ V. > Common Pleas, No. , Term, 1912. No. ^- J . The declines to file cross-interrogatories, and names as his commissioner , Esq., No. Street, Attorney for (Date.) To Prothonotary Common Pleas. FORM OF COMMISSION TO TAKE DEPOSITIONS. The Commonwealth of Pennsylvania, City of , ss., to (names and addresses of commissioners), greeting: Having confidence in your prudence and fidelity, we have ap- pointed you, and by these presents do give unto you full power and authority, in pursuance of an order made in our Court of Common Pleas, No. , of the county of , in a cer- tain cause therein pending, between , plaintiff, and Of Proceedings from Issue to Trial. 843 defendant, of Term, 19 , No. , to call before you at a certain day and place, by you for that purpose to be ap- pointed, all persons who may be named to you by the as witnesses in the said cause; and then and there to examine each of the said witnesses upon their respective oaths or sol- emn affirmations touching the premises, and reduce their testi- mony to writing. And when you shall have so done you are to send the same before the judges of our said court at , together with the interrogatories and this writ, under your hands and seals, or the hands and seals of such of you as may act hereunder. In testimony whereof, we have caused the seal of our said court to be hereunto affixed. Witness the Honorable , president judge of our said court, at , the day of , in the year of our Lord one thousand nine hundred and Prothonotary of the said court. DIRECTIONS TO COMMISSIONERS. A. >| V. > Common Pleas, No. , Term, 191 2. No. B. J 1912. , Esq. , Esq. Gentlemen : Enclosed please find a commission issued by the Court of Common Pleas, No. , of County, giving you authority to examine witnesses in the above case upon the in- terrogatories and cross interrogatories annexed to the commis- sion, and for your guidance we respectfully request that you pursue the following directions : Both commissioners should act together in fixing a certain time and place for the examination of the witness, who should be notified to attend where the examination is to be held. The commissioners should first administer to the witness the proper oath or affirmation. The interrogatories and cross-in- terrogatories should then be put to the witness and his answers to each written out carefully and fully. See that the witness answers fully each question. Head the deposition as follows: 844 Common Law Practice in Pennsylvania. "Depositions of a witness produced, sworn, and examined on the day of , 1912, at the office of , Street, in the City of , County, State of , under and by virtue of the annexed commission, issued out of the Court of Common Pleas, No. , of County, and under the seal of said court, directed for the examination of a certain witness (or witnesses), on behalf of , in a certain cause depending in said court, wherein is plaintiff and is. defendant, of term, 1912, No. ." State oe ss County oe , , being duly sworn and examined on the part of the , doth depose and say: I. In answer to the first interrogatory, the witness saith: Write down the full answer of the witness, and so proceed until full answers to all questions have been obtained. When the interrogatories have been answered, begin with the cross interrogatories as follows : In answer to the first cross-interrogatory, the witness saith : And proceed as in the case of the interrogatories. The wit- ness and both commissioners should subscribe their names at the foot of each page of the deposition. After the examination has has been concluded fasten the deposition to the commission. If any exhibit be identified by a witness, it should be noted on it: "This is the letter (or as case may be) identified by wit- ness G. H., in answer to interrogatory." The witness and commissioners should sign this mem., and the paper should be attached. Write upon the back of the commission : "The execution of this appears in a certain schedule hereunto annexed." Both commissioners should attach their names and seals to this. Enclose all in an envelope and seal the latter with wax. Write your names across the envelope by the seal, and address it to , Esq., Prothonotary of the Court of Common Pleas of County, Pennsylvania. The commission should be mailed by one of you. The one so mailing should deposit it in the postoffice at , or else- where, as both commissioners may agree, having first indorsed upon it, "I deposited this in the postoffice at , this day of , 1912." Of Proceedings from Issue to Trial. 845 (Fill up blanks and sign your name.) No person should be present at the examination except the witness, the commissioners, and the officer (if any) who swears the witness. No interrogatory or cross-interrogatory must be put in ad- dition to those contained in the commission. Very respectfully yours, Attorney for Plaintiff. Attorney for Defendant. FORM OF EXCEPTIONS TO INTERROGATORIES. A. B. "I V. Y C. p. No. . Term, 1912. No. C. D. J Plaintiff's exceptions to defendant's interrogatories sur de- fendant's rule for commission to (place). First. Because the second interrogatory is leading and in- quires of matters of hearsay testimony, and of matters relating to the character and business of L. Z. not in issue in this case. Second. Because the eighth interrogatory is leading and in- quires of irrelevant matters. (And so with all interrogatories objected to.) E. F., pro Plff. (Date.) CHAPTER XXIII. Trial and its Incidents. I. Of THE Trial List. 1. What causes are to be placed. 2. What causes have priority. 3. Continuance. 4. Absence or engagement of counsel. 5. Absence of witnesses. 6. Affidavit for continuance. 7. Absence of party. 8. Other grounds. 9. Costs. 10. Review of refusal to con- tinue. II. Of Pleas Puis Darrein Con- tinuance. 11. When to be pleaded. 13. In abatement. 13. In bar of action. 14. Form of plea. 15. Effect of plea. III. Of Empannelling the Jury. 16. Drawing the jury. 17. Jury wheel. 18. Challenges. 19. Distinction in kinds of chal- lenges. 20. Challenges for cause. 21. How long the right to chal- lenge continues. 22. Reservation of the right to challenge. 23. Challenge to the polls. 24. Challenge to the favor. 25. Questions that may be asked. 26. Who' iare disqualified. 27. Court's decision is not re- viewable. 28. Waiver of challenge. 29. Swearing the jury. 30. Separation of their names from other jurors. 31. Talesmen. IV. Of Proceedings Before the Jury. 32. Opening of the case. 33. Examination of witnesses. 34. And in his own behalf. 35. Leading question. 36. When excused from testify- ing. 37. Cross examination. 38. Rebuttal testimony. 39. Re-examination of witness. 40. Striking out evidence. 41. Order of testimony. 42. Withdrawing a juror. 43. Summing up by counsel. 44. Charging the jury. 45. Points. 46. Province of the court. V. Bills of Exceptions and Fil- ing Opinions. 47. Nature of bill of exceptions. 48. Statutory requirement of 1911. 49. Exception to judgment non obstante veredicto. so. Exception to entry of com- pulsory nonsuit, etc. 51. How bill is obtained if judge dies or resigns. 52. Settling the bill. 53. Form of the bill. 54. Effect of the bill. 55. Exceptions to charge of the court. 56. Assignments of error. 57. When a bill is bad for un- certainty. 58. Filing opinions. 59. When opinion must be filed. VI. Demurrers to Evidence and Points Reserved. 60. Demurrer to evidence. 846 TRiAt AND ITS Incidents. 847 61. What is admitted. 62. Joinder in demurrer. 63. Points reserved. 64. Time for moving for a new trial. 65. Exception may be to mode of reservation. 66. Time for granting a new trial. 67. Judgment non obstante vere- dicto. 68. Reservation should be re- corded at the time. 69 Act of 1911 concerning res- ervations. 70. Construction of act. VII. Nonsuit and Verdict. 71. Making up verdict. 72. What papers may be given to jury. 73. Calculations and statements. 74. Voluntary nonsuit. 75. Distinction between judg- ment of nonsuit and non pros. 76. Compulsory nonsuit. yT- When nonsuit may be or- dered. 78. Act of 1769. 79. What motion for nonsuit im- plies. 80. Nonsuit after verdict. 81. Effect of nonsuit. 82. When nonsuit may be taken off. 83. Appeals. 84. Opening of judgment. 85. Verdict. 86. Proper mode of rendering it. 87. May be reconsidered. 88. Cannot be received during adjournment. 89. Nature of verdict, go. Must be certain. 91. Verdict when there are sev- eral counts. 92. Verdict may be for specified sum for defendant. 93. Special verdict. 94. Conditional verdict. 95. Damages. 96. On several counts. 97. Double and treble damages. 98. Supreme court may correct an excessive verdict. I. Of the Trial List. I. What causes are to be placed. The cause being at issue, and all the preliminary steps being finished, it is placed upon the trial list by written order of either party or his counsel, entered on the trial order book, in accord- ance with court rule.^ Hence a case will be stricken from the trial list which was put at issue after an order required by court rule was entered on the trial list order book but before the clerk made up the special trial list for publication." Having been placed on the list, it is then to be tried in order in which it stands thereon, unless it loses its place by being stricken off. 1 Phila. rule No. 118. 2 Brown v. Timmins, 11 Dist. 181. The rule provided that "no course shall be placed on the trial list until after issue joined, nor without the written order of one of the parties or his counsel." The rule has since been amended by omitting the last clause. For other case see 9 Vale 26636, 26640. 848 Common Law Practicb in Pennsylvania. By the Philadelphia rule a case entered on a general trial list look shall be striken therefrom by agreement of the parties; if a verdict, judgment or non-suit has been entered; if it has been reached for trial and so marked ; if it has been continued by agreement ; otherwise it retains its place on the list.* Other rules provide for the postponement of cases in consequence of the clash of professional engagements.^ If a cause has been settled by consent of the parties and is thus marked on the record, the court cannot at the instance of the plaintiff disregard that settlement and oblige the defendant to proceed to trial." And if he nevertheless takes part therein, though protesting, and adduces evidence on his own behalf, he is not estopped on error from setting up the irregularity of the proceeding.' 2. What causes have priority. Some causes have priority of trial. Thus by the act of 1877, suits for wages are entitled to a priority on the trial list, pro- vided the plaintiff have filed a statement that his claim is for manual labor only.* So, also, causes in which the commonwealth is directly interested, are entitled to a preference of trial over other actions;^ and this on the ground that the commonwealth is entitled to preaudience in her own courts; and it is to be presumed that the prerogative of the commonwealth would pre- vail over the preference given to suits for wages by the statute. But a preference must be asked in favor of the commonwealth, on the first day of the term, or it is waived;^" and it must be asked for by the attorney general, on behalf of the common- wealth.^^ And when the defendant is brought in on an alias, the declaration may be filed in the original suit, thus giving the case priority on the trial list.^^* ,1 Phila. rule No. 120. 5 See §4 of this chapter. 6 Sherwood v. Lemons, g8 Pa. 453. 7 Ibid. 8 Act 22 March, 1877, P. L. 13, 4 Purd. §3, p. 503S. In Philadelphia such suits shall be placed at the head of the appropriate general trial list upon the filing of a praecipe therefor. Rule No. 121. 9 Respublica v. Cobbet, 3 Yates 93, Clyde Coal Co. v. Pittsburg & Lake Erie R. Co., 13 Dist. 415. 10 Commonwealth v. Pascalis, i Binn. 37. li TurnbuU v. Commonwealth, i Binn. 45. iia Rahter v. Insurance Co., i W. N, C. 288. Triai, and its Incidents. 849 II. Of Continuing or Leaving Open a Case on the List. 3. Continuance, (a) The rules for bringing on causes must be influenced by a legal discretion, applicable to the peculiar circumstances of every case ;^^ by exercising which, care will be taken by the courts that injustice is not done, either by precipitate trials or wanton de- lays." Our courts, sitting to do substantial justice, are fully disposed to bring on causes as early as it may be done ; yet, this must necessarily be, in those cases where the parties are pre- pared, or have been guilty of manifest negligence. Some of the principal grounds for continuance, however, have been made the subject of rules of court, and will be presently considered." The consent and approval of the court is always necessary to continue a case.^" But, if the parties consent to a continuance, the court must grant it if the rules of court thus provide.^^ A continuance should not be asked nor the affidavit in support of it be made only by those who will be affected by the judgment on the final disposition of the case.^' Under a court rule which provides that after placing a cause on the trial list it shall not be continued more than once by consent of counsel or parties, the court must grant at least one continuance if both parties con- sent.^* It is no ground for a continuance that a case has been called and left open, on the contrary it may be called at any time.^' An ex parte affidavit is ground for a continuance, though a former rule for a stay of proceedings has been discharged.^" a I Vale 1112; 2 Vale 3713. 12 Cecil V. Lebenstone, 2 Dall. 96. 13 Symes v. Irvine, 2 Dall. 384. 14 See §§4-8. The appellate court rarely intereferes with the execution of rules concerning continuances. Burns v. Pennsylvania R. Co., 222 Pa. 406. 15 Ziegler v. Ziegler, 10 Montg. 45. 16 Schrimpton v. Bertolet, 155 Pa. 638. 17 Jackson v. Keely, i Dall. 135 Dig. 3713- 18 Schrimpton v. Bertolet, 155 Pa. 638, revg. 10 Lane. L. Rev. 139. While a continuance, or a refusal to continue, the trial of a cause in the common pleas is not regarded as reviewable by the appellate court, a refusal to continue which subjects parties to a trial without witnesses, and is in violation of a written rule of the court may be reviewed. I bid. 19 McDufify V. McGettigen, i Phila. 69. 20 Manufacturing Co. v. Cheyney, 7 Leg. & Ins. Rep. 125. 54 850 Common L,aw Practice in Pennsylvania. The granting or refusal of a continuance after amendment by a party during the trial is a matter of discretion and cannot be reviewed.^"* Likewise the allowance of a continuance in an ac- tion of joint negligence, which has been so amended as to charge separate negligence, is so manifestly proper as to become the rule.^"'' If there is a conflict of evidence over the day on which a trial was continued, the docket entries made by the clerk must prevail.^°'= And if there has been an improper presentation of a case to the jury, the remedy is an immediate motion for its con- tinuance.^"'*. Very often a case is continued by agreement of the counsel, and the rules of court perhaps in all the counties contain a rule concerning such agreements. If, relying thereon a defendant and his witnesses do not attend the trial of the case, the court will grant a new trial if the plaintiff proceeds to trial and obtains a verdict.^"^ Likewise an offer to prove an understanding between the petitioner's counsel in a bankruptcy case and a trial judge that a hearing of a petition for the benefit of the insolvent laws should be postponed for a week was properly rejected on the ground that it contradicted the record.^"* If the hearing in the incorporation of a borough cannot be had at the term for which the notice was given, it must appear from the record that the proceedings were actually continued.^"*^ And if such a petition is filed at a stated session, is before the court on exceptions at the next session, is called up for argument at the next session, and a decree is entered at the next session, the proceedings are regular, and the action of the court is equivalent to a continu- ance.^°h The agreements of counsel with reference to other matters be- sides continuances may be considered in this connection. At an early day it Was held that the court would not notice any agree- 20a Farmer's Ins. Co. v. Simmons, 30 Pa. 299; Walthouse v. Spangler, 31 Pa. 523. See §10. 20b Sturzebecker v. Inland Traction Co., 211 Pa. 156. 20c Ryan v. Ryan, 14 Dist. 434. 20d Moll V. Zimmerman, i Wood, 501; See Myers v. Devens, 2 Kulp 312; Sweeney v. Railroad Co., 2 Kulp 390; Reese v. Payne, 2 Kulp 361. See §42. 20c Myers v. Filley, 18 Montg. 67. 20b Greenwalt v. Krauss, 148 Pa. 517. 20g Windsor Borough, 18 York 137. 2oh I^eetsdale Borough, 25 Super. Ct. 623. Triai, and its Incidents. 851 ment between counsel unless reduced to writing.^"' The rule however does not have any application to an agreement made in open court or before a master during the trial of a case.'"''' But an agreement to try a case on a particular plea,^'"' or not to put a case on the trial list without the consent of both parties is bind- ing,^°i and the court will also give effect to an agreement of at- torneys to amend.^^ And an agreement concerning the points to be tried on an appeal from an award, is binding.^^ An attorney may agree that a judgment of non pros., entered in a suit for want of a statement, shall be stricken off.^^ And though an at- torney cannot ordinarily bind his client by a promise or acknowl- edgement to take a case out of the statute of limitations, he may do so if his client has agreed to be bound by what he should say.^* 4. Absence or engagement of counsel, (b) A case in the common pleas will be continued when the coun- sel for the defendant has a case in the supreme court for argu- ment on the same day and refuses to relieve him.^^ Again, when a case is regularly on the trial list and the rules of the court have been regarded, the plaintiff is within his rights in demanding trial notwithstanding the absence of the defendant and the defend- ant's counsel, and the court is right in proceeding. Nor need the court in its charge refer to the defendant's absence, but this may be done as an explanation for the satisfaction of the jury.^" "No case when reached on the trial Hst will be passed be- cause of a pending engagement of the attorneys in any other than the supreme court, the superior court or a state or federal court sitting in this county. If passed for such reason it shall have preference over the other cases on the list when such pending or facts which it is believed the witness will prove ; the grounds of belief that he will do so; the efforts made to procure his at- b 2 Vale 3715. 2oi See Chap. 6, §35. 20j Black V. Black, 206 Pa. 116. 20k Fursht V. Overdeer, 3 Wv and S. 4/0. 20I Hunsecker v. Williston, i Mona. 585. 21 Johnson v. Chaffant, l Binn. 7s. 22 Continental Ins. Co. v. Delpeuch, 82 Pa. 225. 23 Reinoldt v. Albert!, i Binn. 469. 24 Pequamick Co. v. Brady, i Phila. 220. 25 Peterson v. Atlantic City R. Co., 177 Pa. 335. 26 Meckes v. Pocano Mt. Water Supply Co., 203 Pa. 13. 8S2 Common Law Practice in Pennsylvania. engagement has terminated. When two or more attorneys are of record upon the same side, the case will not be passed on ac- count of sickness, absence or engagement of one of them. If by reason of such pending engagement the adverse party loses an opportunity for trial, he shall have the right to insist upon trial when the case next appears upon the list, if he has given ten days' notice of his intention to do so."^' 5. Absence of witnesses, (c) The granting or refusing of a continuance on the ground of absence of a material witness is within the discretion of the court.^* And when a continuance is based on the ground of the illness of a material witness, counsel must state what is to be proved by the witness, so that if the other side admits the facts to be proved, the case may go to trial.^' Nor can a party obtain a continuance by subpoenaing a judge as a witness who declares that he knows nothing of the case.*" FORM OE application. John Smith "] Court of Common Pleas of vs. > County. Richard Jones J No , Term, 1912. , ss.: Richard Jones, defendant in the above-stated cause, being duly sworn, deposes and says that Peter Stokes is a material witness for the defendant in said case, as he is advised and verily believes, without whose testimony he cannot safely proceed to trial ; that he has made every effort to find said witness and have her subpoenaed, but without effect, and that he expects to be able to procure her attendance at the next term, etc. (Here set forth the facts to which the witness is expected to testify.) 6. Affidavit for continuance.(d) Where application is made for the continuance of a cause on the trial list because of the absence of a witness, ground must be laid, by affidavit of the party, or his agent, setting forth the fact c 2 Vale 3714. d 2 Vale 3721. 27 Phila. rules Nos. 131-152. 28 Rowland v. Philadelphia, 202 Pa. 50; Gillman v. Media & Chester Electric R. Co., 224 Pa. 267. 29 Heise v. Pennsylvania R., 11 I,anc. L,. Rev. 31; Gillman v. Media & Chester Electric R. Co., 224 Pa. 267. 30 Herbner v. Wynn, i C. C. 538. Trial and its Incidents. 853 tendance, specifying the same minutely and particularly ; and the grounds for believing that a continuance will enable the party to procure the testimony; which affidavit must be filed of record.'^ Due diligence only need be shown to procure the attendance of the absent witness.^' It is no objecti9n to a continuance, on the ground of the absence of a material witness, that other witnesses in at- tendance can, it is supposed, testify to the same facts;'* but a cause will not be continued on account of the non-attendance of a witness whose deposition has been taken, and can be read;'" nor of one whose deposition might have been taken ;" nor on account of the sickness of a material witness, whose deposition can be tak- en, for which an opportunity is afforded f nor on the ground of the absence of a witness, unquestionably incompetent.'* 7. Absence of party.(e) The absence of a party is not ground for a continuance, unless his presence be shown to be essential." In order to a continu- ance, the same steps must be taken to procure the attendance of a party, as in case of any other witness.*^ It is no ground for a continuance, that one of the parties has been impanelled as a grand juror, in another court;*' but a cause will be continued where the defendant is absent in the plaintiff's service;** or, where he is necessarily absent, attending to his duties as a mem- ber of congress.*" 8. Other grounds.(f) An outstanding commission is ground for a continuance; but e 2 Vale 3714. f 2 Vale 3718-3724. 31 Phila. rule No. lag. 33 Pennington v. Scott, 2 Dall. 94. 34 Comly V. I,loyd, i Bro. 375. 35 Bond V. Hunter, I Yeates 284; Goodwin v. White, i Bro. 272. 36 Davidson v: Brown, 4 Binn. 243; Clark v. Cochran, i Miles 282. 37 Smith v. Cunningham, 9 Phila. 96. 38 Corkrey v. Beidman, 2 Phila. 236. 41 Cowperthwaite v. Miller, 2 Phila. 219. And see Jones v. Little, 2 Dall 182. 42 Brice v. Schultz, 6 Phila. 264. 43 Goodwin v. White, i Bro. 272. 44 Respublica v. Matlack, 2 Dall. 108. 45 Short Mountain Coal Co, v. Boqs, I Pears. 44. 854 Common Law PiSacticb in Pennsylvania. no unnecessary delay must be suffered to intervene, either in taking out or executing it;*' and in such case, the materiality of the evidence must be shown by affidavit.*^ A continuance will be granted, where the execution of a commission has been prevent- ed by the act or omission of the opposite party, though there were laches in taking it out.** So, a cause will be continued, where the plaintiff has not answered a bill of discovery filed against him by the defendant.*' An amendment at the time of trial, is ground for a continuance, if the opposite party be thereby surprised; and of this the court must judge ;°'' so, if issue be joined, when the cause is called for trial, the defendant is en- titled to a continuance, if surprised ;^^ but the plaintiff, by an amendment of the declaration, cannot prejudice the defendant's right to a trial f^ the defendant, however, is entitled to a contin- uance, if the plaintiff file a new count, to which no plea has been entered.^^ A party will not be forced to trial when he has not prepared, expecting a compromise, from the declarations of his adversary f^ nor is a defendant bound to prepare for trial, pend- ing a motion to quash his appeal from an award.''^ It is no ground for a continuance, that the trial of another case, depend- ing on the same facts and principles, has been published.'" The death of the defendant is ground for a continuance ; his executors cannot appear gratuitously, and ask for a nonsuit.'^ After the trial list is printed the parties cannot continue a case 46 Cooper V. Mitchell, i Phila. 73. And see Marsh v. Hulbert, 4 Mc- Lean 364; Bennett v. Wilson, i Cr. C. C. 446. 47 Morgan v. Voss, i Cr. C. C. 134. 48 United States v. Duane, Wall. C. C. 5. 49 Hurst V. Hurst, 3 Dall. 512. 50 Folker v. Satterlee, 2 R. 213; Tassey v. Church, 4 W. & S. 141, 143; Farmers' & Mech. Ins. Co. v. Simmons, 30 Pa. 299, 30?; Walthour v. Spangler, 31 Pa. 523; Roebling's Sons Co. v. American Construction Co., 231 Pa. 260. 51 Rankin v. Cooper, i Bro. 2S3. See Vols. HI. and IV., Chaps, on Parties and Amendments. 52 Respublica v. Coates, I Yeates 3s. Nor can the defendant, by filing a special plea, to which the plaintiff demurs. McMurdy v. Connec- ticut General Life Insurance Co., s W. N. C. 384. 53 Le Roy v. Delaware Insurance Co., 2 W. C. C. 223. 54 Comogg V. Abraham, i Yeates 18. 55 Keller v. Cunningham, 6 Pa. 376. 56 Hurst V. Wickerly, i W. C. C. 286. 57 Hagarty v. Thompson, i W. N. C. 576. Triai, and its Incidents. 855 without the consent of the court; and if the plaintiff is absent when his cause is called for trial, his action will be treated as an election not to proceed, which is equivalent to suffering a non- suit.°* Whether the substitution of legal parties to a suit on trial with* out change in the form of action is sufficient ground for a con- tinuance rests in the sound discretion of the court.°^ And if the defendant file a special plea on the trial, to which the plaintiff puts in a demurrer, the latter is entitled to proceed to a trial of the issues of fact.*" Again, a continuance will be refused for a slight change in the pleadings, for instance a change of the date of the accident alleged in the statement.®^ Nor is the withdrawal of part of a claim such an amendment as will justify a continu- ance on the ground of surprise.®^ But the hearing on an adjudi- cation of an account may be continued because of surprise;'' likewise a cause if the plaintiff amend his bill of particulars on the trial f* or if a party be surprised by an unexpected construc- tion of a rule of court ;°^ or if a joint tort is charged and the plaintiff amends his statement to conform with the proof.** The admission of incompetent evidence and its subsequent withdrawal before agreement is no ground for a continuance or reversal of the judgment;*^ while the remedy for an improper presentation of a case to the jury by counsel is by an immediate motion for a continuance.** A continuance, therefore, will be granted when on the trial of an appeal from arbitrators counsel say to the jury that at the trial before them an award was made in favor of his client.*' If, however, the opposing counsel elect 58 Ziegler v. Ziegler, lo Montg. 45. 59 McDermott v. Dearnley, l Montg. 69. 60 McMurdy v. Conn. Gen. Life Ins. Co., 5 W. N. C. 384. 61 Conrad v. Pennsylvania R., 31 C. C. 71. 62 Lingenfelter v. Williams, 9 Ct. 653. 63 Becker's Estate, 3 Dist. 513. 64 Atwater v. Hager, 10 W. N. C. 189. 6s Sheldon v. Bohner, 4 C. C. 16. 66 Rowland v. Philadelphia, 202 Pa. 50; Minnich v. Lancaster & Lititz R. Co., 203 Pa. 632. See Higby v. Pennsylvania R., 209 Pa. 452; Booth V. Dorsey, 202 Pa. 381. 67 Rathgebe v. Pennsylvania R., 179 Pa. 31. 68 Moll V. Zimmerman, i Wood. 501. See Myers v. Devers, 2 Kulp 312 ; Sweeney v. Lehigh Valley R. Co., 2 Kulp 391 ; Reese v. Payne, 2 Kulp 361. 69 Jones v. Cleveland, 8 Kulp 461. 856 Common Law Practice in Pennsyi County. Richard Jones. J No. , Term, 19 . Now, to wit, day of , A. D. 1912, next after , in this same term, until which the plea aforesaid was last continued, come as well the said plain- tiflf as the said defendant, by their respective attorneys aforesaid ; and the said defendant saith that the said plaintiff ought not further to maintain his aforesaid action thereof against him ; be- cause, he saith that after the last continuance of this cause, that is to say after , next after , in term, from which day this cause was last continued, and before this day, to wit : on (here state the matter, payment, release, or what- ever has intervened as substantial matter of defense.) And this he is ready to verify. Wherefore he prays judgment if the said plaintiff ought further to maintain his aforesaid action thereof against him, etc. Peter Force, Attorney for Defendant. County, ss.: Richard Jones, above named defendant, being sworn, says that the foregoing plea is true in substance and matter of fact. Richard Jones. Sworn to, etc. 15. Effect of plea. At common law, the effect of the plea was to admit the original merits to be with the plaintiff, and rest the de- fense on something that had occurred, or some act that had been done by the defendant, since the last continuance of the cause.^^^ It was held, therefore, that it was a waiver of all other pleas; that if it were well pleaded, issue must be taken on it, or there would be a mistrial ; if bad, it must be demurred to, or, if out of time, must be set aside on motion ; if put in issue, it would form the only subject of injuiry before the jury; and judgment on it, whether the plea were of matter in abatement or in bar, if against the defendant, would be peremptory, as well on de- murrer as on trial, because, after a bar pleaded, he has answered III Wilson V. Hamilton, 4 S. & R. 239. Trial and its Incidents, 86i in chief, and therefore, cannot have judgment to answer over.^'* Since the act of 1806, however, it is doubtful if the stringency of the common law as to this plea is now applicable in any particu- lar in Pennsylvania, and the more recent opinion has been, that it is a plea in addition, not in substitution, for the others, and therefore, not a waiver of any matter previously set up as a de- fense.^^* III. Of Empanelling a Jury. 16. Drawing the jury.(i) On the return of the venire, the prothonotary is required to cause the names of the jurors empanelled and summoned to be written separately, on distinct slips of paper, as nearly alike in size and appearance as may be; and, by direction and under the notice of the presiding judge, to roll or fold up the said slips separately, and as nearly in the same manner as may be, and put them in a box, to be provided by him for that purpose.^^"* And when any cause is ready for trial, some disinterested person shall, by direction of the court, in open court, draw from the said box, after having well mixed the papers deposited therein, twenty of the said papers, one after another; and if any of the jurors whose names are so drawn do not appear, or are chal- lenged and set aside, such person shall proceed to draw a further number of such papers, until twenty jurors shall appear. Their names shall be written on a panel by the prothonotary or clerk, from which the plaintiff shall strike one name and the defendant one, and so on alternately, until each party shall have exercised the four peremptory challenges allowed by law. The remaining twelve jurors, having been sworn or affirmed as the law directs, shall be the jury to try the cause.^^* If there be a struck jury, the clerk omits the names of the jurors stricken from the list, in calling over the panel. 17. Jury wheel. The law requires the sheriff to have the custody of the key of the jury wheel.^^^ His neglect to comply with this legal require- i 5 Vale 14593- 112 Ibid. Bauer v. Roth, 4 Rawle 92. 113 Johns V. Bolton, 12 Pa. 339. 115 Act 14 April, 1834, §139, P. L. 366, 2 Purd. §65, p. 2072. 116 Act 14 April, 1834, §140, P. t. 367, amended June 23, 1885, P. h- 138, 2 Purd. §66, p. 2072. 117 Kittaning Ins. Co. v. Adams, no Pa. 553. 862 Common Law Practice in Pennsylvania. ment, renders the array of jurors liable to be quashed ; or that it was sealed with the county seal instead of the respective seals of the sheriff and commissioners.^^* And if the sheriff and one of the jury commissioners seal the jury wheel so that it cannot be opened without breaking the seal, this is a sufficient compliance with the law.^^* But the array of jurors will not be quashed because the jury wheel, after having been properly filled, locked and sealed was kept by one of the commissioners, with the con- sent of the other, at his home.^^° But a sheriff who returns a jury furnishes good ground of challenge to the array if he is brother to one of the parties.^^^ And a motion to quash the array should be made as soon as the facts which warrant such action is known.^^^ The sheriff and commissioner have no right to exclude a juror whose name is drawn from the wheel.^^^ Nor is the sheriff dis- qualified from assisting in drawing a jury because he is a brother of one of the parties to the cause.^^* The jury commissioners and the judge in alternately selecting names from the whole qualified electors of the county may use lists made up by them- selves of persons whom they deem sober, intelligent and judi- cious, although the information on which their judgment is based is obtained from others.^^^ i8. Challenges.(j) At the time of calling the jury, either party may exercise the right of challenge. A challenge is either to the array or to the polls ; and the latter may be either peremptory or for cause. A challenge to the array is an exception to whole panel, and may be made on account of partiality or some default of the sheriff who arrayed the panel, and can, of course, only be for cause."" By a rule of court, such challenge to the array must be made on the ) 5 Vale 14607, 14632. 118 Anonymous, Lewis' Cr. I,. 519. 119 Act April ID, 1867, P. L. 62, 2 Purd. §12, p. 2064; Commonwealth V. Sloan, IS Dist. 965. 120 Klemmer v. Mount Penn Gravity R., 163 Pa. 521. 121 Munshower v. Patton, 10 S. & R. 334. 122 Ibid; Wallace v. Jameson, 17J Pa. 98. 123 Anonymous, i P. A. Bro. 121. 124 Munshower v. Patton, 10 S. & R. 334. 125 Klemmer v. Mount Penn Gravity R., 163 Pa. 521. 126 Bl. Com. 359. Co. Litt. 156 a. i Arch. Pr. 169. See Munshower y. Patton, xo S. & R. 334, Brown v. Commonwealth, 73 Pa. 321. Triai. and its Incidents. 863 first day of the trial period for which the jury is summoned.^" If the array be quashed, the court may, at the instance of either party, award a venire, returnable forthwith, for the trial of the cause ; which may be directed to the sheriff or coroner, or, if the case require it, to two elisors, requiring him or them to summon and return forthwith, twenty jurors, with a panel thereof annex- ed, from whom the jury is to be selected.'^* The court may di- rect a special venire to two elisors, whenever, in their opinion, the nature of the case requires it.^^* To enable a party to exer- cise his peremptory challenges intelligently, "it has always been customary," says Justice Paxson, "to allow a party to examine a juror on his voir dire as to any matter which may affect his mind or show bias or prejudice.""" FORM oif chali Common Pleas, Term, 1912. No. . CD. J Motion of for judgment on the point (s) reserved. (Name of Attorney.) Attorney for (Date.) 505 Erie City Iron Works v. Barber, 106 Pa. 125. 506 Hosier v. Hursh, 151 Pa. 415, Dig. 14477. "Where a verdict is for the defendant, no question of law can be properly reserved, for no judg- ment can be entered in favor of the plaintiff non obstante veredicto, in case of a decision in his favor." Williams, J., State Bank v. McCoy, 69 Pa. 204, 210. 507 Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526. 508 Begmer v. Bonsall, 79 Pa. 298. 509 Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526. SIC Ibid. Koons Western Union Tel. Co., 102 Pa. 164; Central Bank of Pittsburg V. Earley, 113 Pa. 477; Moahan v. Butler, 112 Pa. 590. 910 Common Law Practice in PfiNNSYi! V. > Common Pleas, Term, 1912. No. . M. J And now (date), the defendant, by his attorney, E. F., moves 530 Currier v. Bigler, 149 Pa. 109. S3iFreiler v. Kear, 126 Pa. 470. See Walters v. American Bridge Co., 234 Pa. 7- 532 Hosier v. Hursh, 151 Pa. 415. 533 Eberts v. Thompson, 113 Pa. i; Conrad v. Commercial Mutual Ins. Co., 54 Pa. 373; Farmers' Bank v. Lefever, 74 Pa. 49; Inquirer Printing Co. v. Rice, 106 Pa. 623; Standard Wheel Co. v. Phoenix Ins. Co., 13 Dist. 77; Sulzner v. Cappeau-Lemley & Miller Co., 234 Pa. 162. 534 Keifer v. Eldred Township, 110 Pa. I. 535 Ibid. 536 Ibid. Triai. and its Incidents. , 913 the court for judgment in his favor upon the point reserved non obstante veredicto. 68. Reservation should be recorded at the time. The reservation of controlling legal questions should always be made matters of record and at the time. The point and the facts must be stated on the record in order to authorize the court to enter judgment non obstante veredicto.^^' The facts arising from the evidence can find their way on the record in three modes : by the finding of a jury which is a special verdict, by the agreement of the parties or case stated, and by the certificate of a court contained in a bill of exceptions. The last is the statutory mode for reserved points."'* An instruction therefore to the jury to find a verdict for the plaintiff subject to the opinion of the court on legal points reserved is an insufficient reserva- tion."'" "Whether under all the evidence the plaintiff is en- titled to recover," and somewhat similar formulas a good reser- vation is created has been the subject of much judicial contro- versy but in Fisher v. Scharadin'*" Justice Dean, speaking for the court, said that "notwithstanding the conflict in the cases here- tofore decided we decide that the question, whether there be any evidence which entitled the plaintiff to recover is a good reser- vation, without a statement upon the record of the facts on which the point is based. And if the evidence be submitted to the jury, and there be a verdict for the plaintiff, or if the court direct a verdict for plaintiff, the court can, on such reservation, enter judgment for defendant, non obstante veredicto.""*^ A written S36a Williams v. Crystal Lake Water Co., 191 Pa. 98. 537 Blake v. Metzgar, 150 Pa. 291; Heany v. Schwartz, 155 Pa. 154; Richboro Dairymen's Association v. Ryan, 16 W. N. C. 383; Elkins v. Susquehanna Mutual Fire Ins. Co., 3 Penny. 367. A question of lawwas re- served and noted by the judge on his notes, but not by the stenographer. The court below ordered it to be entered on record after a writ of error had been filed. Payne v. Ulmer, i Walk. 516. After a verdict separating compensatory and puniative damages, the court placed on the record a point previously reserved and entered judgment non obstante veredicto as to the puniative damages. Gedusky v. Rubinsky, 8 Dist. 10. 538 Pittsburg Central Bank v. Earley, 113 Pa. 477; Miller v. Hershey, 59 Pa. 64. 539 Moore v. Copley, 165 Pa. 294. 540 186 Pa. 565, 570. See Newhard v. Pennsylvania R. Co., 153 Pa. 417. 541 See Gedusky v. Rubinsky, 8 Dist. 10. A reservation of a ques- tion of law whether under the record and the evidence in the case there 58 914 ' Common Law Practice in Pbnnsyi.vania. instrument need not be set out at length where the question re- served involves only its construction and effect;'*^ but a deed "taken in conjunction with all the evidence" is a bad reservation ; the form should be "under the stipulated facts.""*' If the reserv- ed question is susceptible of clear and simple statement it is bet- ter to so state it and raise the issue of law directly ; a reservation therefore "whether there is any evidence to go to the jury en- titling plaintiff to recover" is not good in form."** Again, if after a proper reservation of a question of law on specific facts the judge submits other facts material to the same issue to the jury, he cannot enter a judgment on the reserved point non ob- stante veredicto."*" Likewise on the trial of an issue devisavit vel non, where the court submits the contradictory evidence of a fact to the jury which finds the fact, the court cannot on a point reserved, enter judgment non obstante veredicto, on the ground that the facts did not warrant the inference drawn from them by the jury."** In such a case judgment should be entered on the verdict, or the aggrieved party left to the remedy of a new trial."*^ Indeed, if a decision on a motion for judgment non obstante veredicto will work injustice, the court ought to convert it into a motion for a new trial and proceed to its decision."*^ And if there be any doubt about the facts in support of a point reserved, a new trial will be awarded,"*" even though no exceptions have been taken to the statement of the facts.""" is any evidence entitling the plaintiff to recover is in proper form. Rees V. Clark, 213 Pa. 617. Also the reservation of a question of law in the form, "whether there is any evidence entitling the plaintiff to recover" is in proper form. Rees v. Clark, 213 Pa. 617. Also the reservation of a question of law in the form, "whether there is any evidence in the case that will entitle the plainti£F to a verdict" is a good reservation if in effect it raises a question of law which determines the case. Bauschard Co. v. Fidelity & Casualty Co., 21 Super. Ct. 370. 542 Witman v. Smeltzer, 16 Super. Ct. 285. 543 Philadelphia v. Peters, 18 Super. Ct. 388. 544 Riggs V. Bair, 213 Pa. 402. 545 Keefer v. Township of Eldred, no Pa, i. 546 Butts v. Armor, 164 Pa. 73; North American Oil Co. v. Forsyth, 48 Pa. 201 ; Patton v. Pittshurg, Cleveland & St. Louis R., 96 Pa. 169. See Confer v. Pennsylvania R., 209, Pa. 425. 547 Ibid. 548 Gring v. Burkholder, 2 Wood. 82. 549 Central Building Association v. Witzell, 13 Phila. 54. 550 Santry v. Pennsylvania Schuylkill Valley R., 4 Montg. 144. Trial and its Incidents. 915 The facts contained in a reserved question may be found by the jury specially, or the parties may agree to them, or they may be stated by the trial judge. In the last case if either party be dis- satisfied he may object and except to such statement and thus preserve his right to have the correctness of the judge's finding of facts reviewed by an appellate court. But if no exception be taken to the judge's statement of facts the parties will be pre- sumed to have assented to them and are concluded by them.""^ And if the plaintiff's right to recover depends on the inferences to be drawn from facts, evidenced by parol testimony at the trial, the matter is for the jury and the court cannot direct a verdict for the plaintiff subject to points of law reserved.""^ Lastly, in passing on a reserved question the court should not go beyond the question of law involved and try the whole case over without the intervention of a jury.^"' 6g. Act of igii concerning reservations. In 1911"=* the legislature amended the law.''^'' Now, if on the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within the time prescribed for moving for a new trial, or within such further time as the court shall allow, move the court to have all the evidence taken on the trial duly certified and filed so as to become part of the record and for judgment in his favor on the whole record. °°°* It shall be the duty of the court, unless it shall be of opinion that the case should be retried to so certify the evi- dence and to enter such judgment as should have been entered on that evidence, granting also to the defeated party an exception to the action of the court. From this judgment either party may ap- peal to the supreme or superior court as in other cases, which shall review the action of the court below and enter such judg- ment, if any, as should have been entered by the court below on that evidence. 70. Construction of act. "This act," says Chief Justice Mitchell, referring to the act of 1905, "broadens the power of the judge in this respect, that 551 Supplee v. Hennan, 16 Super. Ct. 4s, revg. g Dist. 27. 552 Baltzell V. Cook, 19 Super. Ct. 490. 553 Whitman v. Smeltzer, 16 Super. Ct. 285. 554 April 20, P. L. 70, Purd. Supp. §1, p. 529. 555 May 3, 1905, P. L. 286, S Purd. §7, p. 5848. SSSa For construction of act, see Lipsky v. Stolzer, 236 Pa. 151. 9i6 Common Law Practice in Pennsyi^vania. whereas heretofore the verdict was required to be for the plain- tiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for a binding direction to the jury, and may be for either plaintiff or defendant. But, though thus enlarged so as to include both par- ties, the power of the judge is the same as it was before. He is to enter such judgment as should have been entered upon that evidence, or in other words treat the motion for judgment as if it was a motion for binding directions at the trial, and to enter judgment as if such direction had been given and a verdict ren- dered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If, upon such consideration, it shall appear that a binding direction for either would have been proper at the close of the trial, the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction, then there can be no judgment against the verdict now."'"* This act was not intended to disturb the distinction between the province of the court and that of the jury, and no judgment can be entered under it against the verdict except where binding di- rections would have been proper at the close of the trial."'^ Under this act where a point requesting binding instructions for the plaintiff is refused and a verdict is rendered for the defend- ant, the court may subsequently enter judgment for plaintiff non obstante veredicto if a binding direction in favor of the plaintiff would have been proper at the close of the trial."'* One of the purposes of this act was to give opportunity for more deliberate review and consideration of the facts and the law pertaining to 556 Dalmas v. Kemble, 215 Pa. 410, 412. See this case for a history of legislation on this subject. See also Duflfy v. York Haven Water & Power Co., 233 Pa. 107; Kobe! v. Mahoning & Shenango R. Co., 233 Pa. 450. 557 Shannon v. McHenry, 219 Pa. 267; Delmas v. Kimble, 2x5 Pa. 410; Bond V. Pennsylvania R., 218 Pa. 34; Hardoncourt v. North Penn Iron Co., 22s Pa. 379; Ackley v. Bradford Township, 32 Super Ct. 487, 490. 558 American Car & Foundry Co. v. Alexandria Water Co., 221 Pa 529; Girard Trust Co. v. Boyd, 19 Dist. 383. Triai, and its Incidents. 917 them than can be had on the trial.''=* The expression "binding instructions" may be applied to one or more branches of the issue or to the entire issue directing a verdict on which a final judg- ment can be entered concluding the parties in every matter com- posing the issue.'^^" And the authority to ask for such a judg- ment on the' whole record is conditioned on the presentation be- fore verdict of a point presenting binding instructions.^"^ An exception to the order of the court refusing judgment non obstante veredicto must be requested.^"^ and within a reasonable time.^*' A motion therefore five days after the verdict is too late.^*^ Likewise when the court enters judgment for the de- fendant non obstante veredicto, and twenty days thereafter the counsel for the plaintiff asks leave to file an additional exception containing new matter which is disallowed, without taking any exception to the order of disallowance, the appellate court has nothing on the record before it which calls for consideration of the new matter contained in the disallowed exception.'"^ There must be a question reserved or a motion on record,'"" but a motion for judgment under the act does not require any reser- vation of a question of law to support it.'"^ The motion ought to be set forth at length in the appellant's paper book, and the docket entries should show by what authority the court was asked to enter judgment.""* And in entering a judgment non-obstante veredicto the court must file an opinion showing the reasons for setting aside the verdict.'"" Judgment non obstante veredicto will be entered when a bind- ing instruction should have been given,''" but the question is one 559 Liquid Carbonic Co. v. Truby, 40 Super. Ct. 94, 99. 560 Casey v. Canning, 39 Super. Ct. 94, 99. 561 Haley v. American Ag. Chemical Co., 224 Pa. 316, 318, and 217 Pa. 354; Philadelphia v. Billyeu, 36 Super. Ct. 562. 562 Metzgar v. Metzgar, 3 Leh. Co. 33. 563 Ibid. McGinnis v. St. Paul Fire Ins. Co., 38 Super. Ct. 360; In- ternational Sav. & Trust Co. v. Printz, 37 Super. Ct. 134. 564 Metzgar v. Metzgar, 3 Leh. 331. 565 Lewis V. Pennsylvania R. Co., 220 Pa. 317; Keefer v. Pacific Mu- tual Life Ins. Co., 20 Pa. 448. 566 Merchants & Traders' Bank v. Gardner, 31 Super. Ct. 143, 146. 567 Murphy v. Greybill, 34 Super. Ct. 339. 568 Philadelphia v. Billyeu, 36 Super. Ct. 562, 565. 569 Hunt. V. Phila. & Reading R., 224 Pa. 604-606; Mayne v. Fidelity & Deposit Co., 198 Pa. 490; Wilde v. Trainor, S9 Pa. 439- 570 Keller v. Hoover Wagon Co., 22 York 131. 9i8 Common Law Practice in Pennsylvania. for the jury when the evidence is conflicting.^''^ Nor does the statute contemplate the entering of an interlocutory judgment non obstante veredicto in favor of the plaintiff in an action of tort, as the object of the act is to shorten litigation.*^'' Unless the amount of damages is admitted, or is so clearly ascertained that the court can give a binding instruction on the subject, the court is not in a position to enter a judgment contrary to a ver- dict in favor of the defendant.'^^ VII. Nonsuit and Verdict. 71. Making up verdict. After listening to the judge's charge, the jury may, if they think proper, withdraw from the bar, to deliberate on their ver- dict. Before retiring, they are placed in charge of an officer of the court, who is sworn "to keep them in some private and con- venient place, until they shall have agreed upon their verdict; and not to permit any person to speak to them, nor to speak to them himself, without leave of the court, except to ask if they have agreed upon their verdict." If the jury desire further in- structions they may come into court for that purpose; but such instruction must be given in the presence of the respective coun- sel for the parties.^'^* 72. What papers may be given to jury. ' The jury are allowed, by the practice of this state, to take out with them any written papers which have been given in evidence, though not under seal, except the depositions of witnesses ;^^* these have been withheld, because it would be unequal, that while the jury were not permitted to call the witnesses before them who had been examined in court, they should take with them the 571 Ibid. Keiser v. Eberly, 22 York 165, 166; Scarborough v. York Street R. Co., 22 York 145; McGibney v. Berks-Nassau Realty Co., 23 York 9 ; Ackley v. Bradford Township, 32 Super. Ct. 487. 572 Casey v. Canning, 39 Super. Ct. 94. 573 Ibid. 573a Sommer v. Huber, 183 Pa. 162. 574 Alexander v. Jameson, 5 Binn. 238; Hendel v. Berks & Dauphin Turnpike Road, 16 S. & R. 92; Seibert v. Price, S W. & S. 438 ; Riddlesburg Iron and Coal Co. v. Rogers, 65 Pa. 416; Udderzook v. Commonwealth, 76 Pa. 340; Carson v. Watson, 4 Phila. 88. The English practice of send- ing out only sealed papers, was never adopted in this state. Foy v. In- surance Co., 4 Luz. I,. R. 165. Triai, and its Incidents. 919 depositions of other witnesses not so examined-''^ Nor can they take notes of the testimony of witnesses to refresh their memories in consultation with their fellow jurors in the jury room.^'" Nor have they any right to take out a record containing depositions f" to this rule, however, there is one exception — the jury may take out a record of proceedings in bankruptcy, though it include the depositions relative to the bankruptcy, if they be immaterial to the controversy;^'^ and a paper may be detached from a deposi- tion, and handed to the jury.''* As a general rule, the sending out of papers with the jury, is a matter of sound discretion, not reviewable on error. 73. Calculations and statements. It is also the practice, to send out with the jury, calculations made by the parties, showing the items on which they rely, where calculation is requisite in making up the verdict ;'*'' but a state- ment of items, as to some of which there is no proof, cannot be handed to the jury f^^ it is error, to permit it to be done.^*^ In ac- tion on a mechanics' claim it is not error to permit the claim which contains a bill of particulars, to go out with the jury;'^' but they ought not to take out with them a withdrawn declaration, and bill of particulars under it.°^* It is the duty of counsel to examine such statements, and if there be anything wrong in any item or 575 Alexander v. Jameson, 5 Binn. 238. 576 Commonwealth v. Wilson, 19 Dist. 48. 577 Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173. 578 Shorao V. Zeigler, 10 Phila. 611. This case was affirmed by the supreme court; but the point was not there raised. 78 Pa. 357. 579 McKelvy v. DeWolfe, 20 Pa. 374. 579 Spence v. Spence, 4 W. 165; Hamilton v. Glenn, i Pa. 341; Little Schuylkill Navigation Co. v. Richards, 57 Pa. 142. And see O'Hara y. Richardson, 46 Pa. 385. 580 Commonwealth v. Lebo, 13 S. & R. 175; Frazier v. Funk, 15 S. & R. 26; Pittsburg v. Pittsburg R. Co., 234 Pa. 223; Ott v. Oyer, 106 Pa. 6; Person v. Lipps, 219 Pa. 99- A jury may reach a verdict by taking the amount fixed by each one and dividing the aggregate by twelve. Cleland v. Borough of Carlisle, 186 Pa. no. 581 Morrison v. Moreland, 15 S. & R. 61. 582 Musser V. Brabenstadt, 3 Leg. Gaz. 210. Otherwise, if there be any evidence tending to prove such items. Foy v. Insurance Co., 4 Luz. L. R. 165; Wilman v. Wagner, 4 Luz. L. R. 252. 583 Odd Fellows' Hall v. Masser, 24 Pa. 507. 584 Hall v. Rupley, 10 Pa. 231. 920 Common Law PKACTicn in Pennsyi,vania. number of items, to call the attention of the court to it, on the trial, and request them to be stricken out ; unless this be done, the supreme court will not reverse for error, on such ground."*" In an action for a tort, it is not illegal to hand to the jury an item- ized statement of the plaintifif's claim for damages; though the practice is not to be commended.'*^ 74. Voluntary nonsuit, (y) At common law, before the jury deliver their verdict, the plain- tiff is bound to appear in court, by himself or counsel, in order to answer the amercement, to which, by the old law, he was liable (in case he failed in his suit), as a punishment for his false claim. The amercement is disused, but the form still continues; and, if the plaintiff do not appear, no verdict can be given, but the plaintiff is said to be nonsuit — not to follow up his claim. Therefore, it is usual for a plaintiff, when he, or rather his counsel perceives that he has not given evidence sufficient to maintain the issue to be voluntarily nonsuited, or withdraw him- self ; whereupon, the crier is ordered to call the plaintiff ; and if neither he nor anybody for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant recovers his costs.^*' In this state, by act of 1814,"*^ it is declared that "whenever, on the trial of any cause, the jury shall be ready to give in their verdict, the plaintiff shall not be called, nor shall he then be permitted to suffer a nonsuit." At any previous stage of the trial, however, and at any time before the jury have sig- nified to the court their readiness to give their verdict,"*^ the plaintiff may suffer a nonsuit for defect of evidence. In our practice the plaintiff may suffer a nonsuit at any time during the trial, and just as the jury are about to deliver their verdict, al- though the defendant has pleaded a set-off, and given evidence of it."'" And the privilege was held rightly allowed, where the jury had repaired to the box, and when some of them had been y I Vale 11 13; 9 Vale 26682. 58s Kline v. Gundrum, 11 Pa. 253. 586 Rowand v. Clark, 34 L. I. 232. And see Ege v. Kille, 84 Pa. 333. 587 Franklin v. Mackey, 16 S. & R. 117. 588 Act 28 March, 1814, §2, 6 Sm. L. 208, 2 Purd. §S, p. 3320. 589 McLaughlin v. Bovard, 4 W. 308. The plaintiff may suffer a non- suit, at any time before the clerk has put to the jury the question, "have you agreed upon your verdict?" Kates v. Lewis, 2 Clark 53. 590 McCredy v. Fey, 7 Watts 496; Shannon v. Truefit, i W. N. C. 248. Trial and its Incidents. 921 called."" And, under the act of i836,=''2 the court may, after appeal from an award of arbitrators, allow the plaintiff to suifer a nonsuit, with like effect as if the cause had not been referred, if the special circumstances seem to require it; by which, it is said, great hardships have been experienced by both parties.^®^ Where the .defendant is substantially the actor (as, in an issue to determine the validity of a mechanic's claim), the plaintiff cannot suffer a nonsuit ;°^* but after judgment by default against one of several defendants, the plaintiff may suffer a nonsuit, on the trial of the issue joined by the others.^"^ By the act of 1903, however, the plaintiff shall not be permitted to suffer a voluntary nonsuit after the jury have agreed on their verdict, sealed it, and separated, unless it shall be specially allowed by the court for cause shown. °°° 75. Distinction between judgment of nonsuit and non pros. The distinction between judgments of nonsuit and of non pros may here be shown. The former is the nonappearance on call of the plaintiff, or such defect in his law and evidence that he cannot proceed with his suit, the latter is a judgment by de- fault for laches."^' When the plaintiff does not appear, either in person or by counsel, when he is called, the court may direct a nonsuit, but a jury should not be called and take a verdict."''^ A nonsuit will also be granted, as prescribed by rule of court, if the plaintiff fails to pay,""" or enter security for costs when re- quired f°° or to file a bill of particulars on demand f^ or to file a statement of his claim after a long period f^ or to prosecute an 591 Easton Bank v. Coryell, 9 W. & S. 153. See Lawrence v. Burns, 2 Bro. 60. 592 Act 16 June 1836, §25, P. t- T2\, i Purd. §29, p. 350. 593 McKennan v. Henderson, 5 W. & S. 371. 594 Walter v. Streeper, 2 Miles 348. 595 Miller v. Knauff, 2 Clark 11. 596 April 16, §1, P. L. 216, 3 Purd. §9, p. 3322. 597 Walton V. Lefever, 17 Lane. L. Rev. 203. See Chap. 21, §44. 598 Felts V. Del., Lack. & Western R., 170 Pa. 432; Crumley v. Lutz, 180 Pa. 476. 599 Roth V. Steffe, 9 Lane. Bar JT. 600 Fouse V. Carrick, 5 W. N. C. 168. 601 Linderman v. Land Co., 15 W. N. C. 192; Kitchen v. National Life Ins. Co., 15 W. N. C. 548. 602 Waring v. Pennsylvania R., 176 Pa. 172; Field v. Valley Mutual Fire Ins. Co., 15 Lane. L. Rev. in. 922 ' Common Law Practice in Pennsylvania. action of ejectment after a long period.""^ Again, in such an action by several plaintiffs, a nonsuit may be entered against one or more without defeating the right of the others to recover.'"* 76. Compulsory nonsuit.(z) At common law, the court could not compel a plaintiff who had given evidence, to submit to a nonsuit ; he had a right to insist on taking the verdict.'"'^ But the act of 1875 provides*"* "that when- ever the defendant, upon the trial of a cause, in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judg- ment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as, in law, is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit; and in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may re- move the record, by writ of error, into the supreme court, for re- vision and review, in like manner and with like effect as he might remove a judgment rendered against him upoiv a demurrer to evi- dence." 77. When nonsuit may be ordered. Under this statute, if, on the whole of the plaintiff's evidence, the jury would not be justified in finding a verdict against the defendant, it is the duty of the court to order a nonsuit;*"^ but, if there be any question of fact for the jury, it is error, to enter a compulsory nonsuit;®"^ as the prayer for a nonsuit is, in effect, z I Vale 1 1 13; 9 Vale 26685. 603 Hillside Coal & Iron Co. v. Pitt, 4 Lack. L,. W. 335; Hillsid^ Coal & Iron Co. v. Heermans, 191 Pa. 116; Philadelphia v. Cleary, 10 Dist. 7S2. 604 O'Keson v. Silverthorn, 7 W. & S. 246; Hinckle v. Rippert, 6 Pa. 196. 60s Girard v. Gettig, 2 Binn. 234; Widdifield v. Widdifield, 2 Binn. 245; Hayes v. Grier, 4 Binn. 84; Irving v. Taggart, i S. & R. 360; Lyon V. Daniels, 14 Pa. ig8. 606 Act II March, 187S, P. L. 6, Purd. 2054. This power had already been conferred by act 22 April, 1863, P. L. 354. 2 Purd. §7, p. 3320. 607 Pittsburgh and Steubenville Railroad Co. v. Gazzam, 32 Pa. 340; Howard Express Co. v. Wile, 64 Pa. 201; Schweitzer v. Williams, 43 Super. Ct. 202, 206. 608 Berg V. Abbott, 83 Pa. 177 ; Prutzman v. Gushong, 83 Pa. 526. Triai, and its Incidents. 923 a demurrer to evidence,*"* if there be any evidence, however slight, from which a jury might draw an inference favorable to the plaintiff, it must be submitted to them."^" Whether the judge can enter a compulsory nonsuit, on the trial, where the plaintifl has given evidence in support of the issue, but the declaration dis- closes no cause of action, has been made a question. °^^ A motion to take off such nonsuit must be made within four days ;°" for a writ of error does not lie to the compulsory nonsuit, but only to the refusal of the court in banc to take it off, on motion.®^^ A nonsuit for a variance between the allegata and probata will not be taken off ;*^* nor to enable the plaintiff to supply a defect in his testimony.*^^ A compulsory nonsuit, under the statute, is not conclusive of the rights of the parties; it is not a bar to an- other action for the same cause. °^° If there be no evidence sufficient to justify a verdict for the plaintiff a nonsuit should be granted, a mere scintilla of evidence is not sufficient to prevent that result.*^' On the other hand if there be any evidence, however slight, from which the jury might properly draw an inference favorable to the plaintiff the case should be left to them.*^* Lastly, a court has power to enter a compulsory nonsuit in a proper case when sitting without a jury under the act of 1874."" A compulsory nonsuit is proper when there is a variance be- tween the allegata and probata,"^" but is erroneous if granted on 609 Smyth V. Craig, 3 W. & S. i8; Fleming v. Insuance Co., Bright. 104. 610 Bevan v. Insurance Co., 9 W. & S. 187; Maynes v. Atwater, 6 W. N. C. 535- 611 Stanly v. Southwood, 4 Phila. 281, 305. 612 Rule 27, §1. 613 Haverly v. Mercur, 78 Pa. 257; Adams v. Adams, i W. N. C. 279; Short V. Willing, W. N. C. 460. 614 Jenneson v. Camden & Amboy Railroad Co., 5 Clark 409. 615 Walton V. Heald, i Phila. 132. 616 Bournonville v. Goodall, 10 Pa. 133; Fleming v. Insurance Co., Bright, 102. 617 Jones V. Scranton Coal Co., 211 Pa. 577. 618 Arnold v. Phila. & Reading R., 211 Pa. 227; Lerch v. Bard, 153 Pa. 573; Hill v. Nation. Trust Co., 108 Pa. i; Bastian v. Philadelphia, 180 Pa. 227. 619 April 22, P. L. 109, 3 Purd. §42, p. 3658; First Nat. Bank of Ban- gor V. American Bangor Slate Co., 16 Dist. 860. 620 Umbehocker v. Rassel, 2 Yeates 339; Cunningham v. Shaw, 7 Pa. 401 ; Leh V. Del.^ Lack. & Western R. Co., 30 Super. Ct. 396. 924 Common Law Practice in Pennsylvania. the strength of matter drawn from the plaintiff's witnesses by im- proper cross-examination;*^^ or if granted because the plaintiff's testimony is different from that which he gave on a former trial, as the duty of passing on its credibility is for the jury.'^" 78. Act of 1769. In 1767*^^ an act provided that if the plaintiff neglected in any action to bring the issue to trial a judge could on motion render judgment for the defendant, and in 1812 it was again enacted that when a cause at issue shall be regularly set down for trial by the plaintiff or defendant and the plaintiff is not ready for trial when the cause is called in its order, the court, on motion of the defendant, may order a nonsuit to be entered without previously granting a rule to try, or non pros unless the plaintiff shall adduce sufficient reasons for postponement.®^* Furthermore, this act is substantially a re-enactment of the Philadelphia act of 1836, which, in 1863 was extended through- out the state, under which a nonsuit is in effect a demurrer to evidence.*^^ And a refusal to take off a nonsuit is equivalent to a judgment for the defendant on demurrer to the plaintiff's evi- dence except that in case of reversal, instead of entering judg- ment for the plaintiff in the supreme court, the record must be remitted with a procedendo.®^" 79. What motion for nonsuit implies. A motion for a compulsory nonsuit, like a demurrer to evi- dence, necessarily implies an admission of every fact which might have been fairly found by the jury from the plaintiff's evidence ; and in testing the correctness of the refusal of the court to take off the nonsuit, the plaintiff is entitled to the benefit of every fact and inference of fact which might have been fairly found by the 621 Hopkinson v. Leeds, 78 Pa. 396; Hughes v. Westmoreland Coal Co., 104 Pa. 207; E. Bradford Clarke Co. v. Railroad Co., 27 Super. Ct. 251- 622 Creachen v. Bromley Brothers Carpet Co., 209 Pa. 6; Ely v. Pittsburg, C. C. & St. Louis R. Co., 158 Pa. 233; Strader v. Monroq County, 202 Pa. 626. 623 Feb. 21, Sm. 271, 3 Purd. §§1-3, p. 3319. 624 March 30, §1, 5, Sm. 361, 3 St. Purd. §4, p. 3319. 62s Lerch V. Bard, 153 Pa. 573. 626 Finch V. Conrade, 154 Pa. 328; Hartman v. Pittsburgh Incline Plane Co., iS9 Pa- 442. See Jacques v. Fourthman, 137 Pa. 428, 429. Tkiai, and its Incidents. 925 jury, or drawn by them from the evidence before them/^' in other words, "the motion for a compulsory nonsuit necessarily implies an admission of every fact which have been fairly found by the jury from the plaintiff's evidence. "°^^ After a motion for a nonsuit counsel may be permitted to recall a witness to testify to something that has been inadvertently overlooked or omitted, but not to start anew to make out the case in chief, though a large discretionary authority rests with the trial court.*^* 80. Nonsuit after verdict. Under the act of 1814'^" the plaintiff cannot suffer a nonsuit after the jury has sealed a verdict and separated,"" but with this exception the plaintiff may suffer a nonsuit before or at any stage of the trial.*'^ The act of 1903, however, provides that the plaintiff shall not be permitted to suffer a voluntary nonsuit after the jury have agreed upon their verdict, sealed the same and separated, unless it shall be specially allowed by the court for cause shown.''* 81. Effect of nonsuit. When a plaintiff suffers a voluntary nonsuit without qualifica- tion he is out of court and there is no way provided by law for his return except by bringing a new action.*'* But when his action is qualified with leave to move the court to take it off, the court has power to take off the nonsuit in its discretion."'^ A voluntary nonsuit, however, will not be taken off when the plain- tiff offer no competent evidence;*'" unless the omission to offer testimony was due to mistake or surprise,"'^ or he suffered a non- 627 Cohen v. Phila. & Reading R., 211 Pa. 227. 628 Finch V. Conrade, 154 Pa. 326, 328; Miller v. Dealer, 100 Pa. 583; Hill v. Nation. Trust Co., 108 Pa. i ; McGram v. Pittsburg & Lake Erie R. Co., Ill Pa. 171; Fisher v. Monongahela Conn. R. Co., 131 Pa. 292. 629 Buck V. McKeesport, 223 Pa. 211. 630 March 28, §2, 6 Sm. L. 208, 3 Purd. §5, p. 3320. 631 Newton v. Singlob, 5 C. C. 151. 632 Felts V. Del., Lack. & Western R., 170 Pa. 432. 633 April 16, §1, P. L. 216, 3 Purd. §9, p. 3322. 634 Garratt v. Garratt, 4 Yeates 244, 3 Purd. 3320; Chase v. Chase, 16 Dist. 448. 63s Ibid. 636 Riverside Glass Works v. Kittanning Ins. Co., 2^ P. L. J. 3S6; Slocum v. Hunsicker, 8 Montg. 78. 637 Koecker v. Koecker, 7 Phila. 371. 926 Common Law Practice in Pennsylvania. suit from inability to furnish proof which was not required.*'* Nor will the granting of a nonsuit bar another action for the same cause,*'* but the plaintiff must first pay the costs in the former action, and if he attempts to do otherwise the proceedings can be stayed.**" 82. When nonsuit may be taken off. The taking off of a non-suit under the statute of 1875,**^ rests in the sound discretion**^ of the court and will not be granted without a sufficient cause.*** It will take off a nonsuit when convinced that the case should have been given to the jury.*** The court, however, may take off a nonsuit entered for nonappearance in a proper case,**" for example, when a case is put on the trial list before the issue is formed,*** but it will not be taken off when the plaintiff is guilty of laches in making the application.**' And when a nonsuit is entered for failure to ap- pear on the call of a case for trial, payment of costs may be im- posed as a condition of taking it off.*** Moreover, if the plain- tiff obtains a verdict, he cannot recover these costs from the de- fendant.**" FORM OF MOTION TO TAKE OEF NONSUIT. A. B. ] CD. J Common Pleas, Term, 1912. No. And now (date), the plaintiff moves the court to take of the nonsuit in the above case, and in support of said motion files the following Reason. The learned judge erred in entering the said nonsuit. 638 Empire Mfg. Co. v. Hencli, 15 Dist. 659. 639 Fitzpatrick v. Riley, 163 Pa. 65. 640 Zimmerman v. Kuebler, 9 C. C. 128. 641 March 11, §1, P. L. 6, 3 Purd. §8, p. 3320. 642 A judgment of nonsuit will not be opened. Harvey v. Pollock, 148 Pa. S34. 643 Gottshall V. Emerick, 186 Pa. 418. 644 Dixon V, Snow Shoe Township Overseers, 2 Blair Co. 333. 64s Zebley v. Story, 8 W. N. C. 212, 3 Purd. 3319. 646 Taylor v. Pearl, 2 Miles 291; Klein v. McGeough, 10 W. N. C. 482. 647 Ribbert v. Jackson, i North. 108. 648 Ziegler v. Ziegler, 10 Montg. 45. 649 Hartley v. Lea, 6 W. N. C. 560. Trial and its Incidents. 927 83. Appeals. No appeal lies either to entry or refusal to enter a judgment of nonsuit, but only from a refusal to take off the- nonsuit."'"' "There is no provision for removal of the record into the supreme court for revision, except in cases where a nonsuit has been en- tered and the motion to set aside the judgment has been denied, and exception has been taken thereto. Such refusal to set aside a judgment of nonsuit is in the nature of a demurrer to evidence, and hence it is necessary to bring the testimony on the record by a bill of exception."®^^ The entry of a nonsuit therefore cannot be assigned for error, and an appeal taken without a motion to take off the nonsuit will be quashed.""^ Nor can the refusal to take off the nonsuit be re- viewed without an exception thereto, for without this the evi- dence is not on the record.*^' Says Chief Justice Paxson, in re- viewing one of the nonsuit cases in which there was no exception to the refusal to take the nonsuit off : "This may seem unimpor- tant, but in point of fact it is vital. The plain reason is that without such exception the evidence is not and cannot come be- fore us. Without the evidence it is impossible to say whether the nonsuit was properly entered."*"** The exception need not be taken at the time of the refusal and may be filed after the rec- ord is made up in the common pleas.*°° Indeed, the exception may be taken at any time before or even after an appeal.*"* An exception therefore will be allowed nearly six months after the 650 Scranton City v. Barnes, 147 Pa. 461 ; Borough of Easton v. Neff, 102 Pa. 474; Handley v. Del. Lack. & Western R. Co., 10 W. N. C. 8; Mill Creek Township v. Perry, 20 W. N. C. 359; Borough of Shenan- doah V. Erdman, 21 W. N. C. 553 ; Reed v. Fidelity & Casualty Co., 189 Pa. 596; Pierce v. Barney, 209 Pa. 182; Harvey v. Pollock, 148 Pa. 534. But if "no exception was taken in the court below to the refusal to take off the nonsuit, no appeal would lie." Ibid.; Bondz v. Pennsylvania R. Co., 138 Pa. 153; Anderson v. Oliver, 138 Pa. 157. 651 Scanlon v. Suter, 158 Pa. 275, 277. 652 Hallock V. Lefanon, 215 Pa. i; Borough of Easton v. Neff, 102 Pa. 474, citing many cases. 653 Bondz v. Pennsylvania Co. 138 Pa. 153; Miller v. Balfour, 138 Pa. 183; Finch V. Conrade, 154 Pa. 326; Scanlon v. Euler, 158 Pa. 275. 654 Bondz V. Pennsylvania Co., 138 Pa. 153. 655 Yerkes v. Richards, 153 Pa. 646. 656 Eisenberg v. Fraim, 15 Dist. 445. 928 Common Law Practice in Pennsylvania. refusal of the court to strike the nonsuit off.*"^ An appeal how- ever will be from the entry of a compulsory nonsuit for the in- sufficiency of an answer to a rule for a more specified statement, because such an entry is a definite decree.*^* "The plaintiff," says Justice Clark, "may bring another action, but he is undoubt- edly entitled to test the decree which drives him out of court and charges him with the payment of the costs."*"' Lastly there is a time limitation for taking an appeal from an order refusing to take off a nonsuit, and a delay after eight months have passed is too long.'"" "In reviewing judgments of nonsuit, the well-settled rule is that the plaintiff is entitled to every reasonable inference of fact that the jury might have drawn from the evidence. Every rele- vant fact which it tends to prove is to be considered as admitted by the defendant."'" 84. Opening of judgment. There is no authority for opening a judgment of nonsuit. The proper practice is to apply to the courts below to take off the nonsuit. If application is made within the proper time and a suf- ficient cause is shown, the court that ordered the nonsuit will take it off. Should it refuse, the party injured, provided he has ex- cepted to the refusal, is entitled to an appeal; otherwise no ap- peal will lie."^ 85. Verdict, (aa) When the jury have agreed they return to the bar, and, by their foreman, publicly give their verdict, which is recorded by the clerk in his minutes, who then reads the entry to the jury, in order that, if he has made a mistake in taking down the verdict, it may immediately be corrected. If he should omit to note on the aa I Vale 1151; 9 Vale 27867. 657 Ibid. 658 Murdock v. Martin, 132 Pa. 86. "This is not the case of a pe- remptory nonsuit, entered at the trial upon the insufficiency of the plain- tiff's proofs, under the act of March 11, 1875, P. L. 6, 2 Purd. §8, p. 3320, where a writ of error, by the express provision of that statute, lies only upon the refusal of the court to take the nonsuit off." Ibid. 659 Ibid. 96. 660 Farrell v. Scranton R. Co., 27 Super. Ct. 127. 661 Sterrett, J., Corbalis v. Newberry Township, 132 Pa. 9, 14 ; Maynes V. Atwater, 88 Pa. 496. 662 Harvey v. Pollock, 148 Pa. 534. Triai^ and its Incidents. 929 continuance docket that a jury was called and a verdict rendered, the omission may be supplied from the minutes of the trial judge and those kept by the prothonotary.*** There is no verdict of any force except a public verdict, given openly in court ;^®'' but the bodily presence of the twelve in open court when a sealed verdict is rendered is not in exceptional cases necessary. If therefore one of their number is so sick that the requiring of him to be present would be inhuman, a motion to amend the record by add- ing an explanation of his absence should be refused.''^* "With us a practice has obtained of permitting the jury to reduce their finding to writing, and, after sealing it up, to separate till the meeting of the court, when, the paper being handed to the judge, their verdict is received from the lips of the foreman, and record- ed in the usual way; but this difference is unimportant, for neither in the one case nor the other, is a privy verdict, thus deliv- ered, recorded. As the jury may depart from it, their finding in court is what decides the rights of the parties, and what is ad- mitted of record; the paper delivered to the judge, having per- formed its office, is never filed or preserved ; and even if it should be, it would form no part of the record."''^ After the verdict is received, the jury may be polled, that is, by each juror being sep- arately examined and interrogated as to his concurrence in the verdict delivered by the foreman, and then either of the jurors may disagree to the verdict.**^ The court may amend a verdict conforming it to the truth and the evident intention of the jury, and may do this after the jury has separated.^^^^ 664 Snowden v. Pequignot, 19 Dist. 468. See Vol. IV., Chapter on Amendments. 66s 3 Bl. Com. 377- 666 McDonald v. West Alexander Borough, 20 Dist. 109. See Com- monwealth V. Beard, 48 Super. Ct. 319. 667 Dornick v. Reichenback, 10 S. & R. 84; Rees v. Stille, 38 Pa. 138; Beecher v. Newcomer, 46 Super. Ct. 44, 54. 668 Hause v. Funston, i W. N. C. 73; Root v. Sherwood, 6 Johns. 68; Blackley v. Sheldon, 7 Johns. 32 ; Fink v. Hawks, 2 Wend. 649. The jury may be polled, at any time before the verdict is recorded. Fox v. Smith, 3 Cow. 23. In polling the jury, the only inquiry is — "Is this your verdict?" Labar v. Coplin, 4 N. Y. 547. 668a Cohn v. Scheuer, 115 Pa. 178; Carl v. Stine, 14 Dist. 533. 59 930 Common Law Practice in Pennsylvania. 86. Proper mode of rendering it. The only valid verdict is that which the jury announce orally in court and which alone is received and recorded as the jury's finding."*' When, therefore, a jury orally announce that they find a verdict in favor of the plaintiff for a stated sum and this is duly recorded, the action of the court in reassembling the jury for the purpose of having them make a written memorandum of their verdict which they had submitted conform to the oral ver- dict previously recorded, is unnecessary; "it did neither good nor harm."*^" Nor can a motion to poll a jury be made after the ver- dict has been openly announced to the court, affirmed by the jury collectively and recorded on the minutes. Furthermore, the reas- sembling of the jury by the court in order to make a written ver- dict conform to an oral verdict previously rendered and recorded, is not a proper time for a motion to poll the jury.°'^ 87. May be reconsidered. The court may, also, of its own accord, send the jury back to reconsider their verdict, if it appear to be a mistaken one, be- fore it is received and recorded.*'^ And where a jury, through mistake or perversity, brings in a verdict against the charge of 'the court, or not in due form, the court will send them out again to reconsider their verdict, notwithstanding they had separated and sent a sealed verdict into court.*'^ So, where, on the jury's being polled, some of them dissent from the verdict, or where they come into court and declare that they cannot agree, the judge may again send them out, to deliberate further.*'* A verdict may be received on Sunday.*'" But, after the jury have rendered 669 Kramer v. Kister, 187 Pa. 227; Rottmund v. Pennsylvania R. Co., 225 Pa. 410. "The writing prepared in the jury room and presented to the court forms no part of the record. The finding delivered by the jury in open court decides the issue, and what is recorded by the proper court is the only proper verdict." Commonwealth v. Houghton, 22 Super. Ct. 52; Luke's appeal, 20 Dist. 30. 670 Ibid; Commonwealth v. Breyessee, 160 Pa. 451. 671 Ibid; Commonwealth v. Schmous, 162 Pa. 326; Scott v. Scott, no Pa. 387. 672 Blackley v. Sheldon, 7 Johns. 32. 673 Wolf ran v. Eyster, 7 W. 38; Ramage v. Peterman, 25 Pa. 349; Reitenbaugh v. Ludwick, 31 Pa. 131. 674 Bunn v. Hoyt, 3 Johns. 255; Warner v. New York Central Rail- road Co., 52 N. Y. 437. 67s Huidekoper v. Cotton, 3 W. 56; Commonwealth v. Mara, 3 Brewst. 402; Commonwealth v. Earl, Lewis' Cr. L- 421. Trial, and its Incidents. 931 their verdict, which is received and recorded, and they are dis- missed, they cannot alter their verdict, on a certificate of mistake in making it;''« nor can the court do it, upon such certificate; should they do so, it would be the ground for a motion in arrest of judgment, or for an appeal to the appellate court.'^' But a recorded verdict may be amended by the court, so as to make it conform to that actually rendered by the jury.^^^ 88. Cannot be received during adjournment. When the court adjourns, no one is bound to appear until the time of meeting fixed by them; consequently, the judge cannot, without consent, receive and enter a verdict of a jury in the in- terval ; the losing party has a right to be there, and tender a bill of exceptions at the last moment, before verdict is taken, or to poll the jury, before it is recorded.®*" The court may, however, receive a verdict after the announcement of an adjournment, the judges being still on the bench, and the counsel present; the act of adjournment, in such case, is not complete, and may be re- called. °*^ So, though the court have ordered the jury to be dis- charged, in consequence of inability to agree, they may render a verdict, at any time before they have actually separated — ^the discharge not having been recorded;"*^ and where, after sealing their verdict, one of the jurors is taken sick, the court may ad- journ to his residence and take the verdict.'*' A sealed verdict, read openly by the prothonotary, assented to by the jury, and recorded by the clerk, is valid.*** 8g. Nature of verdict. A general verdict is a finding by the jury in the terms of the issue or issues referred to them; and it is either, wholly or in part, for the plaintiff or for the defendant. Where the general issue and several special pleas are pleaded, there ought to be a separate finding on each issue ;"*" jurors are sworn to try, not a 676 Walters v. Junkins, i6 S. & R. 414. 677 Ibid. 678 Friedly v. Scheetz, 9 S. & R. 156; Pedan v. Hopkins, 13 S. R. 45; Ivens' Appeal, 33 Pa. 237 ; Haycock v. Greup, 57 Pa. 438. 680 Shamokin Coal and Iron Co. v. Mitman, 3 Pa. 379; People v. Mayor's Court, i Wend. 36. 681 Person v. Neigh, 52 Pa. 199. 682 Koontz V. Hammond, 62 Pa. 177. 683 King v. Faber, 51 Pa. 387. 684 Willard v. Shaffer, 6 Phila. 520. 68s Tibbs v. Brown, 2 Grant 39. 932 Common Law Practice in Pennsylvania. particular issue, but all the issues, where there are more than one ; and, therefore, where some of them are to be found for the one party, and some for the other, they must be disposed of in de- tail ;^'° and, it seems, the counsel on each side have a right to in- quire, when a jury finds generally for the plaintiff or the defend- ant, which precise issue or issues they find in the affirmative or negative,"^' but a general finding of damages in favor of the plaintiff, is considered a negation of any special pleas upon the record.^** go. Must be certain. A verdict must be certain ;^^° though certainty to a common intent is sufficient,*®" it must conform to the issue joined between the parties,*®^ or, at least, must find the substance of it,®®^ and it must be such that the court can compel performance.^"* It must not contradict facts admitted by the parties on record ;®®* and it must determine all the matters put in issue by the pleadings ;°°^ but, if, in addition to their verdict, the jury find matter merely superfluous, such finding does not affect the verdict.**" A verdict may be amended by adding the interest on proper proof that the jury intended to do so, and as thus amended judgment may be rendered for the full amount."" And if the plaintiff should die after the verdict, judgment may be entered within two terms thereafter.""^ gi. Verdict when there are several counts. It is the practice of the English and American courts, where evidence has not been given on bad counts, to enter the verdict 686 Good V. Good, 9 W. 570. 687 Chit. Gen. Pr. 921. See United States v. Smith, 4 Otto 214. 688 Strohecker v. Drinkle, 16 S. & R. 38. And see Hawks v. Crofton, 2 Burr. 698; Thompson v. Button, 14 Johns. 84. . 689 Glass V. Blair, 4 Pa. 196; Schmertz v. Shreve, 62 Pa. 457. g Vale 27869. 690 Liter V. Green, 2 Wheat. 306; Downey v. Hicks, 14 How. 240. 691 Patterson v. United States, 2 Wheat. 221. 692 Duane v. Simmons, 4 Yeates 441. 693 Glass V. Blair, 4 Pa. 196. 694 McFerran v. Taylor, 3 Cr. 270. 695 Kerr v. Meredith, 4 Yeates 295 ; Fairfax v. Fairfax, 5 Cr. 19. 696 Cavene v. McMichael, 8 S. & R. 441 ; Fisher v. Kean, i W. 259 ; Bickham v. Smith, 62 Pa. 45. 697 Elliott V. Gilmore, 15 Dist. 514. 697a Wood v. Boyle, 177 Pa. 620. See Vol. II., Chap. 27, Part IX. Trial and its Incidents. 933 on those which are good, and supported by the proof ; it is a mat- ter of legal discretion, of which, where the whole evidence is not embodied in the bill of exceptions, a court of error cannot judge.*'* And even where the evidence was applicable to both the good and the bad courts, the court may enter the verdict and judgment on the good ones.*"* So, where the counts were incon- gruous f" and where all the counts are good, the verdict may be entered generally, though the evidence was not applicable to some of them.^"^ And where, in an action on the case, the gen- eral issue is pleaded, and afterwards other counts are filed, which are demurred to, and the case is tried, before a judgment on the demurrers, it will be considered that the verdict is render- ed on the first count only, though in fact given generally."^ 92. Verdict may be for specified sum for defendant. At common law a verdict cannot find a sum of money to be recovered by the defendant of the plaintiff; but, by the act of 1705,'"^ for defalcation, "if it appear to the jury that the plain- tiff is overpaid, they shall give their verdict for the defendant, and withal certify to the court how much they find the plain- tiff to be indebted or in arrear to the defendant, more than will answer the debt or sum demanded, and the sum so certified shall be recorded with the verdict, and deemed a debt of record."'"* This, however, supposes the defalcation to have been pleaded, or notice given of it, under the plea of payment. But the jury can- not, under any plea or notice, find a sum due from the plaintiff to the defendant, to be deducted from another debt, due from the defendant to the plaintiff.'"^ A verdict bears interest;'"* and it is a lien on real estate, from the time of its rendition, unless a new trial be granted, or the judgment arrested;'"' but no judg- 698 Haldeman v. Martin, lO Pa. 372. 699 Smith V. Latour, 18 Pa. 243. 700 Sergeant v. Ewing, 30 Pa. 75. 701 Staph. Plead. 112. A general verdict on several counts, some of which are not within the jurisdiction, is bad in toto. Kline v. Wood, 9 S. & R. 294. 702 IngersoU v. Blanchard, 2 Yeates 543. 703 I Sm. L. 49; I Purd. §1, p. 1204. 704 By the act 11 April, 1848, §12, the defendant may have judgment and execution, on such finding, without a scire facias. P. L. S37. i Purd. §3, p. 1208. 705 Anderson v. Long, 10 S. & R. SS- 706 Act of 6 April, 1859, P- L- 381, 2 Purd. §11, p. 1989. 707 Act 23 March, 1877, P. I,. 34. 2 Purd. §29, p. 2048. 934 Common Law Practice in Pennsylvania. ment can be entered thereon until payment of the sum of four dollars to the sheriff, for the use of the county, to be appropraited to the jury fund.'"' The payment of this sum may be enforced by rule upon the party J"® 93. Special verdict, (bb) The jury have no right to throw the decision of the facts, even as mixed with the law, on the court; therefore, a verdict for a party "subject to the opinion of the court," without any mention of facts; or where they find "subject to the opinion of the court on the facts proved," without stating those facts, is de- fective, and will be set aside.''^" Where, therefore, the jury are in doubt about the application of the law to the facts, the proper course is, to find a special verdict, which is grounded on the stat- ute West. II (13 Edw. I., c. 30, §2),'^^ and is a finding by the jury of all the facts of the case, as disclosed upon the evidence before them; and, after setting them forth, concludes, when formally drawn up, to the following effect: — "that they are ig- norant, in point of law, on which side they ought, upon these facts, to find the issue ; that if, upon the whole matter, the court shall be of opinion, that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and assess the damages at such a sum, &c. ; but if the court are of an opposite opinion, then vice versa."'^^ On a special verdict, the court are confined to the facts found therein, and will render judgment on it, if it be sub- stantially good, though inartificially worded;'^' but they can not supply the want of facts, by any argument or implication from what is expressly found; for whatever is not found, must be taken not to exist.'^* Therefore, undisputed as well as disputed facts, should be stated in the verdict.'^^ But where the verdict bb 9 Vale 27879. 708 Act 29 March, 1805, 4 Sm. L. 242, 4 Purd. §3, p. 5028. 709 Evans V. Reed, 22 Pitts. L. J. 79. 710 Roberts v. Hopkins, 11 S. & R. 202. 711 Rob. Dig. 326. 712 See Peterson v. United States, 3 W. C. C. 36. 713 IngersoU v. Blanchard, 2 Yeates 543; Kelchner v. Nanticoke Bor- ough, 209 Pa. 412; Standard Sewing Mach. Co. v. Royal Ins. Co., 201 Pa. 64s. 714 Crousillat v. Ball, 3 Yeates 375; Thayer v. Society of United Brethren, 20 Pa. 60; Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Evans, S3 Pa. 250; Loew v. Stocker, 61 Pa. 347; Tuigg v. Tracy, 104 Pa. 498; McCormick v. Royal Ins. Co., 163 Pa. 184. 715 Wallingford v. Dunlap, 14 Pa. 31; Spath v. Bryan, 18 Pitts. I,. Trial and its Incidents. 935 is defective, the court may, upon motion, and in order to sustain the merits, amend it ; and the practice is to move to amend from notes of counsel, or on affidavitJ^* If, however, it be so defective that the court cannot give judgment, they will grant a new trial, in order to have it restated.^^'' If the jury, in a special verdict, find the issue, all that they find afterwards is surplusage ; but if, meaning to find a special verdict, they introduce words which would amount to a general verdict, contrary to their intention, the court will grant a new trial."* However, as on a general verdict, the jury do not themselves actually frame the postea, so they have, for the most part, noth- ing to do with the formal preparation of the special verdict. When it is agreed that a verdict of that kind is to be given, the jury merely declare their opinion as to any fact remaining in doubt; and then the verdict is adjusted without their further in- terference. It is settled, under the correction of the judge, by the counsel on either side, according to the state of facts as found by the jury, with respect to all particulars on which they have delivered an opinion, and with respect to other particulars, ac- cording to the state of facts which, it is agreed, that they ought to find upon the evidence before them. The special verdict, when its form is thus settled, is, together with the whole proceedings on the trial, then entered on record ; and the question of law aris- ing on the facts found, is argued before the court in banc, and decided by that court as in case of demurrer. If the party be dissatisfied with their decision, he may afterwards resort to a court of error.'^® "It is the province of the jury to find the facts and return a verdict according to the facts so found, and when the jury makes a return in the nature of a special verdict containing contradic- tory findings it is not for the court to say that one part of the re- turn is correct and another part correct. It cannot be split up so J. 79; Craven v. Gearhart, i W. N. C. 257. If a special verdict find the evidence, not the iacts, a new trial must be ordered. Clark v. Halber- stadt, I Miles 26; Porter v. Coleman, i Pitts. 252; Prentice v. Zane, 8 How. 470; Suydan v. Williamson, 20 How. 427; United States v. Jacka- low, I Black 484 ; Fuller v. Van Geesen, 4 Hill 171 ; Hill v. Covell, i N. Y. 522; Vansyckel v. Stewart, ^^ Pa. 126. 716 Morse v. Chase, 4 W. 4S8; Wallingford v. Dunlap, 14 Pa. 31. 717 Whitesides v. Russell, 8 W. & S. 44; Loew v. Stocker, 61 Pa. 347. 718 United States v. Bright, Bright's Trial 199. 719 Steph. Plead. 112. 936 Common Law Practice in Pbnnsyuvania. that one part may stand and another part be ineffective." But a verdict finding an amount for the plaintiff, though not due until the happening of a specified event, is contradictory in terms and must be set aside. It cannot be sustained by striking out as sur- plusage the part relating to the time of payment.''^'' 94. Conditional verdict, (cc) A conditional verdict, as we have already shown,^^^ is some- times rendered to effect an equitable result, and is most frequent- ly employed in actions of ejectment. The question whether a verdict should have been conditional cannot be raised for the first time in the appellate court. ^^^ A verdict rendered in an action of assumpsit in favor of the plaintiff conditioned on his com- pleting his part of the contract cannot be sustained, for the court has no jurisdiction to determine the fact afterward whether the plaintiff has complied with the condition or, if he has not, to com- pel performance.''^^ 95. Damages.(dd) On a verdict for the plaintiff, or, in replevin, for the defend- ant, the jury should regularly assess the damages. This subject will be more particularly considered in another volume, under the heads of the several forms of action in which damages are sought; at present, attention is called to a few general observa- tions only. Damages are a pecuniary compensation for an injury, and may be recovered in all personal actions,'^* with the exception of actions upon statutes, by common informers, for penalties.'^" In most cases, damages are the sole object of the action; in some, however, they are merely nominal. In assumpsit, covenant, case, trover and trespass, damages are the sole object of the action. In debt, the damages are in general merely nominal, the recovery of cc 9 Vale 27885. dd 3 Vale 5869, 5916, 5920. 720 Elkin, J., Donaldson Iron Co. v. How-ley Construction Co., 226 Pa. 44S> 447- 721 Chap. 2, §12. 722 Bennett v. Hayden, 145 Pa. 586. 723 Bruck V. Mansbury, 102 Pa. 35. 724 For every breach of contract, the law implies damages, of the measure of which the jury are the judges, under the supervision of the court. Holler v. Wiener, 15 Pa. 242. So, any encroachment on the legal rights of another, entitles him to recover damages. Hutchinson v. Schim- melfeder, 4 Pa. 396. 72s Frederick v. I^ and the plaintiff must have declared on the statute.'*" Treble damages by statute will lie for cutting timber, but to recover them the pleader must declare on the act specially. A common law action of trespass will not suffice, nor will an amend- ment after verdict justify them."^ It is presumed that a verdict 754 Hughes v. Stevens, 36 Pa. 320. 755 Campbell v. Finney, 3 W. 84. 756 Campbell v. Finney, 3 W. 84. See Welsh v. Anthony, 16 Pa. 254; O'Reilly v. Shadle, 33 Pa. 489; Watson v. Rynd, 76 Pa. 59. 757 Welsh v. Anthony, 16 Pa. 254. 758 Dunbar Furnace Co. v. Fairchild, 121 Pa. 563; Royse v. May, 93 Pa. 454; Fretton v. Karcher, Tj Pa. 423; Hughes v. Stevens, 36 Pa. 320. 759 Campbell v. Finney, 3 W. 84. 760 Morrison v. Gross, i P. A. Bro. i. 761 Dunbar Furnace Co. v. Fairchild, 121 Pa. 563. Trial and its Incidents. 941 under the act was for treble damages, unless it shows on its face that it was for single damages only;^^^ but if the record shows that the jury gave single damages only the court may in a proper case double or treble them.'^^ The jury, however, cannot, in ad- dition to the double or treble damages, award interest.'" When a judgment has been entered on the verdict at the instance of the plaintiif the time for trebling the damages has passed. The judgment, therefore, may be set aside on application to permit the court to treble the damages, but while it remains in full force the damages are settled thereby. '^^ With respect to the proper measure of damages, the court must instruct the jury, particularly when it has been wrongly stated by counsel ;^°« and he should not leave the question to their uncon- trolled discretion, nor be inconsistent and misleading."* But it is not error for him to express an opinion that more than nominal damages should be given in case of a recovery.'^' There may, however, be harmless error in giving instructions for damages, whatever it may be, as when a jury finds there was no contract which formed the basis of the claim for damages.'^" This subject of damages will be considered further when treat- ing of the various common law actions and other legal proceed- ings in other parts of this work. The legislature has prescribed damages that may be recovered against municipalities, railroads and other corporations. The constitution has also provided that the general assembly shall not limit the amount that may be re- covered for injuries resulting in death or for injuries to persons or property, but in case of death it may prescribe for whose ben- efit actions shall be prosecuted."^ 762 Club V. Sargent, 112 Pa. 16; Kulp v. Bird, 8 At. 618. See Hughes V. Stevens, 36 Pa. 320. 763 Robbins v. Farwell, 193 Pa. 97; Welsh v. Anthony, 16 Pa. 254; O'Reilly v. Shadle, 33 Pa. 489; Watson v. Rynd, 76 Pa. 59. 764 McCloskey v. Powell, 138 Pa. 383; Dunbar Furnace Co. v. Fair- child, 121 Pa. 563. 76s Yocum V. Zahner, 162 Pa. 468. 766 Todd V. Second Ave. Traction Co., 192 Pa. 587; Gilmore v. Hunt, 66 Pa. 321. See Schofield v. Simpson, 21 P. L. J. 123. 767 Phila. & Reading R. v. Adams, 89 Pa. 31. 768 Elk Tanning Co. v. Bennan, 203 Pa. 232. 769 Oswald V. Kennedy, 48 Pa. 9. 770 Lantner v. Kann, 184 Pa. 334. 771 Const. Art. 3, §21. 942 Common Law Practice in Pennsylvania. The legislature has also prescribed how land may be taken for roads, streets, buildings and other purposes by township, coun- ties, boroughs and cities.''^'' 98. Supreme court may correct an excessive verdict. The supreme court may correct an excessive verdict by the act of 1891,'^^ and enter such judgment, order or decree as that tribunal may deem just. This authority to reverse on the ground of an excessive verdict has been exercised in only one casef'* it has declined to interfere on many occasions.'''^ On one of these Justice Mestrezat remarked that "it is the duty of the trial court to control the amount of the verdict. While it should not inter- fere with the functions of the jury and undertake to determine facts which is exclusively the province of the jury, yet when it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the court should set aside or reduce the verdict."''^ 772 See I Purd. §§520, 521. 773 May 20, §2, P. L. loi, 2 Purd. §15, p. i439- See Chap. 25, §23. 774 Smith V. Times Pub. Co., 178 Pa. 481. 775 Schenkel v. Pittsburg & Birmingham Traction Co., 194 Pa. 182; Begley v. Pennsylvania R., 201 Pa. 84; Srevenson v. Ebervale Coal Co., 201 Pa. 84; Stauiler v. Reading, 208 Pa. 436; Quigley v. Pennsylvania R., 210 Pa. 162; Reed v. Pittsburg Car. & Western R., 210 Pa. 211; Har- risburg, Carlisle & Chambersburg Turnpike Road Co. v. Cumberland Co., 22s Pa. 467; Wolf V. Phila. Traction Co., 181 Pa. 399; Murtland v. English, 214 Pa. 325; Neff v. Pennsylvania R. Co., 202 Pa. 371; Begley V. Pennsylvania R. Co., 201 Pa. 84. 776 Hollinger v. York R. Co., 225 Pa. 419, 426.