Kelleher v. Wellejus. up. In such cases the fact that he might have objected at the outset will not avail him. A suitor must not only appear in a Court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand; otherwise the conscience of the chancellor will not be moved. If an injunction is prayed for where, upon a consideration of the whole case it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor." Mayer's Appeal, 73 Pa., 164.. P. R. R. vs. Glenwood, 184 Pa., 227. It is held in Liggett vs. Kaufman, 17 Sup. 631, on page 637, "Whilst the jurisdiction of a Court of Equity to issue a mandatory injunction is now unquestioned, yet it is a power to be exercised with caution. In the exercise of a sound discretion the Court will consider not only the plaintiff's legal right, but also the existence of a remedy at law and its adequacy; the plaintiff's delay in invoking the aid of equity until after the defendant in good faith has expended a considerable sum of money; the easy compensability of his injury in money; and the comparative convenience which the granting or withholding the injunction would cause the parties. This is the doctrine of many Penn'a. cases, some of which are collected Mackintyre vs. Jones, 9 Pa. Sup., 543." Mayer's Appeal, 73 Pa., 164. Orne vs. Fridenburg, 143 Pa., 487. It does not seem that the plaintiff has cause for complaint on account of the wall in question being in its present location, as it is there by the agreement with her mother, the former owner of the land, who acquiesced in its location and acted in affirmance of her agreement up to the time of her death. It appears after she completed the construction of the wall on or about Aug. 1, 1913, that she demanded of Northrup, at that time the owner of the premises, payment of one-half of the cost of the said construction, and that he refused to pay it. The plaintiff is now acting in disaffirmance of the agreement and demanding of the present owner that the wall be removed and that the possession of the land be surrendered to her. In our opinion, she, or the legal representatives of her mother, Mary Kelleher, have an adequate remedy in the collection of one-half of the cost of the wall, according to the terms of the agreement of Aug. 5, 1896. It is not necessary in the disposition of this case to decide whether or not the defendant or his land is liable for the payment of this amount, or whether the plaintiff is entitled to it, as we are not asked to do so in the bill; and it does not appear that any demand has been made upon the defendant for said payment. What we do decide is that the plaintiff is not en Kelleher v. Wellejus. titled to a decree compelling the defendant to take down and remove the four inch wall in question as prayed for in the bill. In our opinion, the demurrer must be sustained and the bill dismissed at the costs of the plaintiff. CONCLUSIONS OF LAW. The plaintiff is not entitled to the relief prayed for, and the demurrer to the plaintiff's bill must be sustained, and the bill dismissed at the costs of the plaintiff. ORDER. And now, Nov. 24, 1919, this case came on for hearing on demurrer of the defendant to the plaintiff's bill, and after arguments of counsel and upon due consideration thereof, it is ordered and decreed that the defendant's demurrer be sustained and the bill be dismissed at the costs of the plaintiff; and the Prothonotary is ordered to enter a decree nisi, same to become absolute unless exceptions are filed thereto Sec. Reg. RATHE, EXECUTOR, v. PORTER, ADMINISTRATOR. Practice Practice Act of 1915-Affidavit of Defense to be filed by Administrator. Prior to the Act of 1915, a plea was necessary to place a case at issue, but pleas are abolished by this act and the defenses are now to be made in an affidavit of defense which is neces sary to place a case at issue. Under the Practice Act of 1915, an Administrator or one acting in a representative capacity is required to file an affidavit of defense, although prior to the passage of this act an Executor or Administrator, being a defendant in a cause of action which ar ose in the life time of the decedent, could not be required to file an affida vit of defense. Rule for judgment for want of an affidavit of defense, No. 63, November Term, 1917, C. P. Erie County. Leslie A. Pease and Charles G. Brevillier for plaintiff. WHITTELSEY, J., December 3, 1919-This is a suit against Ralph W. Porter, administrator of the estate of James H. Porter, Rothe, Executor, v. Por ter, Administrator. deceased, on a cause of action which arose in the lifetime of the decedent, James H. Porter. The plaintiff claims in his statement for money belonging to him as executor of the will of Louis Rathe, deceased, received by the decedent, Porter, in his lifetime. The statement, with notice to the defendant to file an affidavit of defense has been duly served on the defendant according to the provisions of the Practice Act of 1915. The defendant has not filed an affidavit of defense, and contends that he is not required to do so, as he is acting in a representative capacity as administrator of the estate of the decedent, James H. Porter. It is no doubt true that prior to the Practice Act of 1915 that in an action against an executor or administrator on a cause of action which arose in the lifetime of the decedent, the defendant could not be required to file an affidavit of defense. It has been so decided in a number of cases. It was so decided in 1805 in Edwards vs. Ewing, executor of James Barr, 4 Yeates, 235; and the same principle was decided in 1813 in Insurance Co. vs. Hewes, executor, 5 Binn, 508, where it was held that an affidavit of defense was not required of the administrator on appeal from an award of arbitrators under the Act of March, 1810; and by the Act of March 28, 1835 (P. L. 88), to establish the District Court of the City and County of Philadelphia, it is provided for entering judgment by default for want of an affidavit of defense, and no provision is made therein for exempting an executor or administrator from filing an affidavit of defense. It was held in Leibert vs. Hocker, 1st. Miles, 263, that an affidavit of defense was not required from the executor. Wright vs. Cheney, Adm., 10 Phila., 469. Seymour vs. Hubert, 83 Pa., 346. The procedure Act of May 28th, 1887, P. L. 271, required defendants to file an affidavit of defense in actions of assumpsit. Executors and administrators are not exempted from filing an affidavit of defense in that Act. Held in Mutual Life Ins. Co. vs. Tenan, 188 Pa., 239, that an affidavit of defense was not required from an administrator or executor. Since these decisions were rendered, the Practice Act of 1915 has been passed and is now in force, and must govern in the decision of this case. We know of no case in which the question at bar has been decided. We must therefore depend upon an examination of the Act in arriving at a decision. Sec. 2 of the Act provides that "the pleadings shall consist of the plaintiff's statement of claim, the defendant's affidavit of defense, and where a set off or counter claim is pleaded, the reply thereto. When the affidavit of defense, or where a set off or counter claim is pleaded, the plaintiff's reply thereto is filed, the plead Rothe, Executor, v. Porter, Administrator. ings shall be closed and the case shall be deemed to be at issue, and no replication or formal joinder of issue shall be required." Sec. 3 of the Act provides that "pleas in abatement, pleas of the general issue, payment, payment with leave, set off, the bar of the statute of limitations, and all other pleas are abolished. Defenses heretofore raised by those pleas shall be made in the affidavit of defence." It will thus be seen that the pleadings are to consist of the plaintiff's statement of claim, and the defendant's affidavit of defense, which make the issue in the case in an action of assumpsit, and that the pleas which formerly made the issue are abolished and that the defense heretofore raised by the pleadings are to be made in the affidavit of defense. That an administrator is required to file an affidavit of defense as provided in Sec. 2 of the Act, seems to be expressly recognized in Sec. 7 of the Act, which provides "when the affidavit of defense, or plaintiff's reply, is made by an executor, administrator guardian, committee, or other person acting in a representative capacity, he need only state the facts he admits to be true, and that he believes there is a just and legal defense to the remainder, and the facts upon which he bases his belief." Prior to the Practice of 1915, a plea was necessary to place the case at issue. Pleas are abolished by that Act, and the defenses are now to be made in the affidavit of defense. It would therefore seem that in an action of assumpsit a case would not be at issue without an affidavit of defense. We are therefore of the opinion that the defendant is required to file the affidavit of defense as provided in Sec. 7 of the Act, but under the circumstances he should have fifteen days within which to do it. ORDER. And now, Dec. 3, 1919, the rule to show cause why judgment should not be granted for want of an affidavit of defense is made absolute, unless defendant files an affidavit of defense within fifteen days. SHEFFIELD GLASS BOTTLE CO. V. HINES, DIRECTOR GENERAL OF RAILROADS. Act of July 26, 1913, P. L. 1374-Common Carrier-Loss of goods by connecting line. Where a common carrier contracts to deliver goods safely to the consignee within the State of Pennsylvania, and the goods are lost, the contracting carrier becomes liable for the loss of the goods, even though the loss occurs upon a connecting line. Demurrer to plaintiff's statement, No. 26 December Term, 1919. C. P. Warren County. Alexander & Clark for plaintiff. S. Y. Rossiter for Defendant. HINCKLEY, P. J., December, 1919-The plaintiff brings suit, and by statement filed shows it is, for the value of a shipment of goods billed by the plaintiff with the defendant carrier from Sheffield, Pennsylvania, to Philadelphia, Pennsylvania, which was lost in transit. The plaintiff in detail sets out the facts, that it delivered the goods to the defendant carrier and prepaid the freight charges and consigned the goods to its agent in Philadelphia, who received notice from the Philadelphia and Reading Railroad Company, a connecting carrier, that it had received the goods, but refused to deliver the goods because the freight charges were unpaid as appeared by the bill of lading issued by the defendant carrier, and subsequently the goods were lost by the Philadelphia & Reading Railroad Company and were never delivered to the consignee. The contract of the defendant carrier was to deliver the goods safely to the consignee within the State of Pennsylvania, and becomes liable in case of loss of the goods, and this is true though the loss occurs upon a connecting line. Public Service Company Law, Act of 26th July, 1913, P. L. 1374, Art. II., Sec. 1, sub, sec. (v). One of the sections (2) on the back of the bill of lading provides that, "No carrier shall be liable for loss, damage or injury * * * said property has been delivered to the next carrier except as such liability is or may be imposed by law." The Section of the Act referred to, seems to cover this condition when it, inter alia, provides that, "No contract, receipt, rule or regulation shall exempt such common carrier from the liability hereby imposed." |