titled to recover because the action is based" and then recites the reason which sustains that view, he may be very sure that he is indulging in argument under the guise of pleading. Such pleading can not be permitted.

Defendant must answer specifically, in the manner provided by the Practice Act of 1915, the allegations of plaintiff's statement. If then, she wishes to raise the question as to whether the suit should have been instituted upon the judgment note or the primary obligation for which the judgment is collateral she may recite the facts concerning that contention. The case will then be at issue and at the trial, upon an offer of the testimony to sustain that contention, we shall be able to rule upon it. Any other course is altogether unnecessary and improper.

Now, September 17, 1923, the affidavit of defense is struck off.

UNIVERSAL ELEC. L. CO. v. PENN GAS & E. S. CO.

Practice, C. P.-Counter-claim-Reply-Rule for Judgment— Practice Act of 1915.

A counter-claim must be as specific as a statement of claim. Where the plaintiff has filed a reply to defendant's affidavit of defense and counter-claim, he may nevertheless move for judgment for want of a sufficint affidavit of defense.

Where defendant, in a counter-claim, alleges that, by agreement, he "returned" to plaintiff certain defective goods, but failed to allege that the goods so returned were goods sold by plaintiff to defendant, held that the defendant's pleading was not so clear as it should be, but leave granted to amend.

In the Court of Common Pleas of Lehigh County. No. 227 June Term, 1921. Universal Electric Lamp Co. v. Penn Gas and Electric Supply Co. Rule for Judgment for Want of a Sufficient Affidavit of Defense. Leave Granted to Amend.

Reno, J., September 17, 1923. The affidavit of defense admits all allegations of plaintiff's statement but avers a counter-claim against plaintiff for an amount greater than plaintiff's claim. To this counterclaim plaintiff has filed a reply and now demands judgment for

want of a sufficient affidavit of defense, contending that the averments of the counterclaim are not sufficient to sustain a recovery. A number of cases decided since the Practice Act of 1915 hold that judgment for want of a sufficient affidavit of defense may be sought even after a reply has been filed to a counterclaim therein alleged: Clymer Brick Co., v. Detweiler, 28 Dist. Rep. 532; Farmers' and Breeders' Mutual Reserve Fund v. Elliott, 26 Id., 436; Dixie Manufacturing Company v. Lebzelter, 28 Id., 723; Sandusky Cement Co. v. Shutz, 29 Id., 739.

Defendant's counterclaim is founded upon an alleged agreement whereby plaintiff was to replace defective goods purchased by defendant from plaintiff. The counterclaim alleges that defendant, in pursuance of the agreement, returned to plaintiff certain defective goods of the kind and in the quantity and of the value set forth in an itemized statement attached to the pleading. But he does not allege that the goods so returned were goods sold by plaintiff to defendant and this the plaintiff contends is a grave defect in the pleading entitling it to judgment. Without stopping to inquire whether there is not implied in the use of the word "return" the idea of a reshipment of that which had been previously delivered and, therefore, a transaction concerning goods sold by defendant to plaintiff, it is enough to say that in this respect defendant's pleading is not as clear as it should be. A counterclaim must be as specific as a statement of claim. It is subject to all the rules of pleading applicable to statements of claim. Naturally, it should definitely aver that the goods returned were the same goods which defendant had sold to plaintiff. However, before entering judgment against him we shall afford him an opportunity to amend.

Now, September 17, 1823, leave is granted defendant to present for allowance amendment or amendments to his affidavit of defense within fifteen days after service of this order upon him; in default whereof, the Prothonotary will, upon plaintiff's praecipe, enter judgment for plaintiff and against defendant for the amount of plaintiff's claims and interest for want of a sufficient affidavit of defense.

ADAMS v. BOWMAN.

Practice, C. P.-Judgment, n. o. v.- Conflict of TestimonyExceptiou to Charge-General Exception.

A motion for judgment, n. o. v., will be denied where the record discloses a decided conflict of testimony upon a number of material facts.

In absence of motion to reduce the charge of the court to writing and to have it placed upon the record, the charge is not before the court, on review, and assignments of error predicated upon the charge may not be considered by the court.

In the Court of Common Pleas of Lehigh County. No. 1 October Term, 1918. William F. Adams v. W. W. Bowman. Motions for Judgment, n. o. v. and for New Trial. Motions Overruled and Dismissed.

Butz & Rupp, for Plaintiff.

William H. Schneller, for Defendant.

Reno, J., September 17, 1923. This case was tried by our distinguished predecessor, Judge Milton C. Henninger, and we are reviewing the record upon motions for judgment n. o. v. and for new trial. Concerning the first of these it is a sufficient answer that the record discloses a decided conflict of the testimony upon a number of material facts and this factor carried the case to the jury and also requires us to deny the motion for judgment n. o. v.; Dalmas v. Kemble, 215 Pa. 410.

The argument for a new trial is based largely upon alleged errors contained in the charge of the trial judge. But we observe that, although a general exception was taken to the charge of the court, neither side moved that the charge be reduced to writing and placed upon the record. In the absence of such motion, the charge is not before us: (Sikorski v. P. & R. Ry. Co., 260 Pa. 243, 252; Sgier v. P. & R. Ry. Co., 260 Pa. 343, 348) and assignments of error predicated upon the charge may not be considered by us. Possibly, if we were reviewing a record of our own making we should consider the assignments of error notwithstanding this lack of formality but we do not feel at liberty to waive this requirement in respect to the record of our deceased predecessor.

Nevertheless, we have carefully read the record in the light of the argument but we can discover no reason for a new trial. The able counsel in the case enjoyed

full opportunity to present their respective contentions and the case was submitted to the jury in a charge which was, in our judgment, at once illuminating and adequate. There is nothing to suggest that a different result would follow a second trial.

Now, September 17, 1923, motions for judgment n. o. v. and new trial overruled and dismissed.

JENNINGS, KIZER, JENNINGS v. IRONWARP SILK MILLS.

Practice, C. P.-New Trial-Assigment of Error.

A motion for new trial will be overruled where no reasons therefor have been filed, the party having ample opportunity.

In the Court of Common Pleas of Lehigh County. No. 167 April Term, 1922. Jennings, Kizer, Jennings v. Ironwarp Silk Mills, Inc. Motion for New Trial. Motion Overruled.

Aubrey, Steckel & Senger, for Plaintiffs.

Fred G. W. Runk, for Defendant and Motion.

Reno, J., September 17, 1923. We are asked to dismiss the motion for new trial because reasons therefor have not been filed. Defendant has had ample opportunity to assign errors, if any there be, and accordingly.

Now, September 17, 1923, motion for new trial overruled and dismissed.

BOROUGH OF EMAUS v. SECURITY TRUST CO. Municipalities-Boroughs-Streets-Building Line-Equity.

Injunction-Act of April 3, 1851, P. L. 320.

A building line had been established by common consent of the property owners, before the incorporation of a borough, and thereafter the borough council by ordinance established the same building line, on and along which all buildings were erected.

Held, that the authorities were within their powers, under the Act of April 3, 1851, P. L. 320, authorizing them to lay out and ordain streets.

A preliminary injunction was continued against defendants attempting to build across said building line.

In the Court of Common Pleas of Lehigh County. No. 2 June Term, 1923. In Equity. The Borough of Emaus, Penna., and John K. Schmoyer, Burgess of said Borough, v. Security Trust Company of Emaus, Penna., and Arthur P. Hauser, Contractor. Bill in Equity for Injunction. Motion to Dissolve Preliminary Injunction. Motion Overruled.

Richard W. Iobst and Thomas F. Diefenderfer, for Plaintiffs.

Butz & Rupp, for Defendants.

Groman, P. J., July 13, 1923. The Borough of Emaus seeks to restrain the Security Trust Company of the same place from erecting a bank building extending over and beyond a building line along Main Street of said Borough, between First Street and the intersection of Main Street and Chestnut Street. It appears the above building line was established by common consent of the property owners before the Borough of Emaus was incorporated in 1859. All buildings, business and residential, erected before the Borough Council, in 1874, passed an ordinance establishing the same building line, were and have since been erected in accordance with the provisions of said ordinance. The Security Trust Company of Emaus is now about to erect a building over and beyond said building line, at the intersection of Main Street and Chestnut Street. We take it from the pleadings that this proceeding only affects that portion of the proposed building extending over and beyond the building line in question.

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Plaintiff contends that under the Act of April 3, 1851, P. L. 320, council was authorized to pass the ordinance of 1874. The act authorized the corporate authority to survey, lay out, enact, ordain such roads, streets, lanes as they may deem necessary, and further makes it unlawful for any owner or occupier of land to erect any buildings, or make any improvements within the lines of roads, streets, alleys and courts ordained, laid out, widened and straightened after due notice thereof.

The Borough ordinance of 1874, in effect, widened