the defendant or its counsel in delaying his Chicago real estate, that it was not to the filing of the affidavit of defense, as be exercised without the consent of his will materially delay or prejudice the wife. plaintiff, or which should defeat the defendant's right to a trial by jury, in which it would have an opportunity to establish the defense set up in its affidavit, which is substantially the same as that to be offered in the other cases. The fact is that some years after the death of the decedent, the executors sold the Chicago real estate with the consent of the wife, and paid the proceeds of the sale to the two trust companies in trust for the wife for life, and to the residuary legatees in remainder. The wife having died, the trust companies have filed their account, and the Commonwealth claims a collateral inheritance tax on the proceeds of the sale of the Chicago real estate. This is resisted by the residuary legatees, and the question is Delaware Co. presented whether the fund is liable to collateral tax. And now, to wit, October 11th, 1920: The judgment heretofore entered for the plaintiff in this case is opened, and defendant is permitted to file an affidavit of defense, to plaintiff's claim. O. C. of Crozer's Estate There is no question but that the devise to the executors in trust to sell and distribute works an equitable conver Decedent's estate-Collateral inheritance sion: Miller v. Com., 111 Pa. 321; Wil tax-Real estate-Direction to sell land in another state with consent of life-tenant-Liability of proceeds to ta.r. Where a testator devises to his wife a life powers his executors to sell both the life of his wife, and the executors sell the remainder and the life-estate with the consent of the wife, the proceeds are not liable liamson's Estate, 153 Pa. 508. And a estate and the remainder to his executors in trust to sell, and in a subsequent clause emestate and remainder, subject to the consent of death determines the question of liability: Handley's Estate, 181 Pa. 339. The contention of the appellee is that to collateral inheritance tax. The physical a power of immediate sale of the restatus of the property at the time of testator's death determines the question of lia-mainder having been given to the executors, there was an immediate conversion as to the remainder. bility. Appeal of trustees from assessment of collateral inheritance tax. H. Gordon McCouch, for appellants. The question, therefore, comes this: Where a testator gives to his wife a life-estate and gives the remainder to executors in trust to sell, and by his will subsequently empowers his executors to May 4, 1920, Johnson, P. J.-By the sell both the remainder and the lifeterms of decedent's will, so far as it re-estate, subject to the consent of his wife, lates to the question under consideration, he gives to his wife certain real estate in Chicago for life. He then gives the residue of his estate to his executors in trust to sell and convert and pay the proceeds to two trust companies in trust for his wife for life, and to certain residuary legatees in remainder. Then, as to his real estate, he gives to his executors a general power of sale, qualifying it with the stipulation, as to and the executors sell the remainder and the life-estate with the consent of the wife, are the proceeds of sale liable to collateral tax? Where executors, having the power to immediately sell a remainder in real estate, are subsequently given a power of sale of the remainder and the life-estate, with the restriction that the power to sell the remainder and the life-estate is not to be exercised except with the consent of the wife, it is manifest that the testa Practice Practice Act of 1915, P. L. 483-Motion to strike off statementExhibits. Under the Practice Act of 1915, P. L. 483, there are only two methods of attacking a statement of claim: Section 20 prescribes the method of attack for defects of law; Section 21 for informality of pleading. Section 20 requires that the questions of law be raised by the defendant in the affidavit of defense, and it may be done without anment of claim. Section 21. requires a motion. A motion to strike off a plaintiff's state swering the averments of fact in the state ment may be filed after the filing of an affidavit of defense raising questions of law only. A plaintiff's statement is sufficient, which avers that, pursuant to a verbal contract, the plaintiff sold and delivered to the defendant certain goods, wares and merchandise, on the dates, of the character and quantity, and at the prices shown by an exhibit, which is clear and intelligible, attached to and made part of the statement. Where a plaintiff's statement avers that the defendant were in accordance with a blue print furnished, and a letter written certain items of goods sold and delivered to by the defendant, it is not necessary that copies of the blue print and of the letter be attached to the statement. Where a plaintiff's statement avers that certain goods were sold, by verbal agree J. A. Hoober, for plaintiff. W. H. Kurts, for defendant. October 25, 1920, Ross, J.-The pleadings in this case are controlled by the Practice Act of 1915, P. L. 483. The affidavit of defense raising questions of law was filed February 5, 1920, and the motion to strike off plaintiff's statement was filed February 9th, 1920. They are both founded upon the same reasons. Under the Practice Act of 1915, there are only two methods for attacking a statement of claim: Section 20 prescribes the method of attack for defects of law; Section 21 for informality of pleading, when the statement does not conform with the provisions of the Act. Section 20 requires that the questions of law be raised by the defendant in the affidavit of defense, and it may be done without answering the averments of fact in the statement of claim; and any question so raised may be set down for hearing and disposed of by the court. Section 21 requires a motion. In disposing of such a motion, the Court sometimes grants a rule and if it appears that the pleading does not conform to the provisions of the Act, it may be stricken off, or an amendment or new pleading may be allowed upon such terms as the Court may direct. In the present case, the defendant, with due caution, adopted both methods of attack. The reasons alleged in both the affidavit of defense and in support of the motion being identical, it will not be necesSary now to discuss the proper practice in attacking a statement of claim. The plaintiff's argument that "the motion to strike off was filed too late because an affidavit of defense had been ment, to the defendant, at prices indicated, previously filed," is without merit. No it is not necessary to aver that the prices affidavit of defense to any of the facts charged are reasonable, or the usual charge, or merit of the claim has been filed. or a fair market price. The objections made by defendant are Sur affidavit of defense raising ques-altogether questions of whether or not. tions of law, and motion to strike off the plaintiff's statement meets with the plaintiff's statement, in Standard Metal provisions of the Act. The requireManufacturing Company v. American ments of the Act, pertaining to the plainInsulator Company, No. 102, January tiff's statement, are: Section 2, "The Term, 1920, in the Court of Common pleadings shall consist of plaintiff's Pleas of York County, Pa. Motion statement of claim, the defendant's affioverruled. Defendant ordered to file davit of defense"; Section 5, "Every supplemental affidavit of defense. pleading shall contain, and contain only, a * statement in concise and summary The objections offered as a basis for form of the material facts on which the the defendant's peculiar pleadings are, party pleading relies for his claim, first, that copies of letters of instrucbut not the evidence by which tions and blue prints referred to in they are to be proved, or inferences or plaintiff's statement, Exhibit A, are not conclusions of law. * * * Every attached to the statement. * * pleading shall have attached to it copies. That is not necessary, for the items in of all notes, contracts, book entries, or the exhibit expressly state that the blue particular reference to the records of prints were furnished by the defendant, any court within the county in which and the especially furnished articles the action is brought." Section 6, were in accordance therewith and in ac"Every allegation of fact in the plain-cordance with a certain letter written tiff's statement of claim, * * * if by defendant on a specified date. Those not denied, specifically or by necessary statements are susceptible of a direct enimplication in the affidavit of defense, * * * or if no affidavit of defense * swer. "The Practice Act of May 14, 1915, be filed, shall be taken to be P. L. 483, does not require the details of admitted." Section 9. "The statement of claim shall be as brief as the nature matter intended to be proved, or the eviof the case will admit." dence relied upon, to be set forth in the pleadings. If a defendant desires greater particularity, he should move against plaintiff's reply in the manner provided by the statute": Kress House Moving Co. v. George Hogg Company, 263 Pa. 191. When we view the plaintiff's statement of claim filed in this case, we cannot discover any violation of the requirements of the Act. The 2nd and 3rd objections are "that there is no averment that the prices for labor and material, as set out in Exhibit A, were a part of said verbal contract, or that the prices charged for said labor and material are reasonable or the usual charge, or a fair and market price for the same." In view of the explicit charges in plaintiff's statement, these objections seem to be captious. The 3rd and 4th paragraphs say, in substance, that the plaintiff, at the special instance and request of the defendant, sold and delivered to the defendant, certain goods, wares and merchandise, and the defendant purchased and received from the plaintiff, certain goods, wares and merchandise, and that those goods, wares and merchandise are of the character, and were sold and delivered in the quantity, on the dates and at the prices shown by Exhibit A attached to and made a part of the statement. The said sales and purchases are specifically The 3rd and 4th paragraphs of the alleged to have been made in pursuance statement expressly charge that "the of a verbal contract. goods, wares and merchandise of the The 5th and 6th paragraphs say, in character, in the quantity, and on the substance, that all of said sums as dates and at the prices shown by Exshown by Exhibit A, are overdue and hibit A," were verbally purchased by the unpaid, except an amount which said defe dant, were at the special instance exhibit shows to have been paid by and and request of the defendat sold and credited to the defendant. delivered to defendant. Surely if those The exhibits attached as "Exhibit A" allegations are not as declared by the plain and intelligible as to char-plaintiff's statement, the defendant can acter, dates and amounts, that there say so in an affidavit of defense. should be no difficulty in determining whether or not the charges therein detailed were bargained for, sold and delivered, as is specifically stated in the plaintiff's statement of claim. The statement is concise and summary in form and states the material facts which are plaintiff's statement of claim, is disrelied on by the plaintiff. There is nothing in the statement that cannot be effectively and specifically answered by the defendant if he chooses to file an affidavit of defense. And now, October 25th, 1920: The rule, granted on the motion to strike off charged. The questions of law raised C. P. of Lancaster Co. Leibowitz v. Keim Magistrate - Jurisdiction-Damages Automobile collision. A justice of the peace has jurisdiction in an action to recover the cost of repairing, the plaintiff's automobile which was damaged by a collision with the defendant's au tomobile. Certiorari. by the affidavit of defense are deter- tiff has an election of actions, and mined, in accordance with the foregoing chooses to proceed for the recovery of opinion, in favor of the plaintiff, and the consequential damages, rather than for defendant is ordered to file a supple- those arising immediately from the inmental affidavit of defense to the aver- jury, it is equally clear that his remedy ment of fact of the statement, within is in the Common Pleas, and not before fifteen days from this date. a justice of the peace. These principles, we think, too well decided to need a citation of authorities in their support." In Gingrich v. Sheaffer, 16 Sup. 299, the rule is stated in nearly the same language, and the court says, in addition: "It is the nature of the demand, not merely the form of action in which the summons issues, that determines the justice's jurisdiction." In that case the court below was careful to exclude all testimony of any loss sustained by reason of the plaintiff having been deprived of the use of the damaged team, as they were consequential damages of which the justice had no jurisdiction. This distinction between the claims for damages which the justice has jurisdiction to entertain an action for, and those of which he does not have such jurisdiction, runs through all the cases on the subject. We have followed them in Becker v. Palm, 27 L. L. R. 175; Morrison v. Lefever, 29 L. L. R. 370; Garber v. Lockard, 35 L. L. R. 287, and Sprout v. Kirk, 36 L. L. R. 129; in all of which we held that the justice had jurisdiction to entertain. an action for damages, such as are claimed here, and we are convinced of The Act of 22 March, 1814, 6 Smith the correctness of what we there deLaws 182, Section 1, provided that jus- cided. There are other Common Pleas tices of the peace shall have jurisdiction cases to the same effect, among which in all actions brought for the recovery are Shirer v. Gross, 7 Leh. 11; Patsof damages for injury done or commit- chaga v. Musco, 9 Luzerne 262. ted on real or personal property where the damages do not exceed $100.co. This has since been made $300.00. J. E. Senft, for certiorari. September 25, 1920, Hassler, J.-The only question raised by the exceptions to the proceedings before the justice of the peace, in this case, is whether he had jurisdiction of the subject matter of the suit. The claim of the plaintiff is for the cost of repairing his automobile which was injured and damaged by a collision with the defendant's automobile, which collision was the fault of the defendant. The distinction between damages recoverable in an action of trespass and those recoverable in an action of tresIn Grosky v. Wright, 2 Kulp 415. pass on the case, is clearly pointed out Judge Rice says: "A justice has juris- in Stephen on Pleading. On page 16 it diction of actions of trespass brought is stated that trespass vi et armis is n for the recovery of damages for injury injury committed with violence where done or committed on real and personal the injury is of a direct and immediate estate. It has been many times decided kind and committed on the person or that the damages for which a plaintiff property of the plaintiff. Damages for may sue in this form of action are such such an injury are recoverable in an as arise where an injury is immediate, action of trespass. It is further stated. and would be recoverable in the common that trespass in the case lies where the law action of trespass vi et armis, and not such as are consequential, and would be recoverable, if at all, only in an action of trespass on the case. Where the plain party sues for damages for any wrong or cause of complaint to which covenant or trespass alone apply. This would be where an injury is not committed with violence, or is not of a direct or imme- for three months. He now asks under diate kind. Where trespass on the case the Insolvent Laws to be relieved from is the proper remedy, a justice of the the payment of the fine, costs, and suppeace does not have jurisdiction. Plaintiff's action before the justice was, in the case at bar, to recover only the direct and immediate damages caused by the violent act of the defendant in running into his automobile, and the cases cited clearly show that the justice had jurisdiction. We must, therefore, dismiss the exceptions and confirm his proceedings. Exceptions dismissed. C. P. of Koch Petition Berks Co. Practice, Q. S.-Fornication and bas tardy-Failure to comply with sentence-Discharge from imprisonment -Act 24 May, 1917, P. L. 268, and Act 4 June, 1901, Sec. 6, P. L. 404. port and maintenance and to be finally discharged from imprisonmet. Upon his petition this rule was entered. It is resisted by the District Attorney. Under Sec. 6 of the Insolvent Act 4 June, 1901, P. L. 404, as under Sec. 15 of that of 16 June, 1836, P. L. 733. a defendant convicted in a fornication and bastardy case is entitled to be discharged upon compliance with the requisitions of the statute, including imprisonment for a certain period according to the amount of the fine and in conformity with other portions of the statute referred to, when so discharged he is not thereafter liable to arrest in the same proceedings upon any claim existing at the time. If this were all that is to be considered in the disposition of this rule, the Court might possibly be bound to make it absolute. But the familiar principle of statutory materia are to be looked at together, reinterpretation that all enactments in pari quires a consideration of Act 24 May, 1917, P. L. 268, which gives additional and increased powers to, and imposes A defendant guilty of fornication and bas- further duties upon, the Court in tardy who has been committed to jail for dealings with fathers of illegitimate failure to comply with the sentence of the Court is not entitled to a discharge from children upon non-compliance with the imprisonment after being confined for three order of the Court in fornication and months. Procedure in such cases is no longer regulated by Sec. 6 of the Insolvent bastardy cases, which powers and duties Act 4 June, 1901, P. L. 404, but by Act 24, are hardly consistent with an unconditional right in the defendant to a final The court having jurisdiction is empowered, and indeed required, to exact from such defendant a bond with security, or on the failure to furnish such to commit the defendant to prison at hard labor, or discharge him June 26, 1920, Endlich, P. J.-upon his own recognizance in the cusPleading guilty to an indictment tody of a probation officer, subject to charging fornication and bastardy, the such conditions as the court may in its petitioner was sentenced to pay a fine discretion, impose. Whilst it is not perof $25, the costs of prosecution, lying-in ceived how the Act 11 July, 1917, P. L. expenses and maintenance to the date of 773, amended by Act 21 July, 1919, P. sentence, and the sum of $2.00 per week L. 1075, can affect the questions arising for the support of the child until seven in this case, it seems very manifest that years of age, as well as to enter into a the powers and duties of the court as recognizance in the sum of $500 and above pointed out, under Act 24 May, stand committed until all this be com- 1917, negative any right in the defendplied with. Unable to make the pay-ant to an absolute discharge under the ments required by this sentence, the pe- Insolvent Law, and that the application titioner was committed to the Berks for relief by him, and the action of the County Jail and has been confined there court upon it, must pursue the provis May, 1917. P. L. 268. Rule for discharge from imprison-discharge. ment. Leonard G. Yoder, for rule. |