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the charge of murder, not to answer the spected at this very hearing, when his call of any and every person, official or counsel was refused access to him under other, who may wish to meet him or the very eyes of the court. speak to him. If his presence elsewhere

Citizens accused, but untried, will not is needed to answer any lawful demand be ordered by the court to the district which he would be compelled to answer attorney's office. if at liberty, it may be secured by a proper writ of habeas corpus.

The District Attorney also asks that the defendant's counsel be excluded from It seems to be forgotten that an ac- these inspections. The reason for any cused is not a convict, and that it is only such extraordinary demand is not stated strong necessity that compels his deten--and there can be none that is legitition before trial. It is a restraint of the mate. We have progressed somewhat liberty of his person which is unavoid- since the day when a man on trial for able. It certainly should not be aggra- his life was forbidden counsel: Constivated by the infliction of any unneces-tution, art. 1, § 9. sary indignity.

No Mr. Attorney Coke may now "thou" an accused without a counsel by to protest and protect.

"All persons shall have an opportunity of a full and free communication with their counsel:" Act of March 31, 1860, § 34, P. L. 439.

An accused, but unconvicted, prisoner is not to be bundled about the county at the beck and call of every policeman or prosecutor who may wish to see him. If he were at liberty, the District Attorney could no more "send for" him to call at his office than he could "send for" any The suggestion that counsel for the other citizen, or than the latter could accused will gain some advantage by send for the District Attorney. His knowing the Commonwealth's witnesses rights are not different because he is ac- does not bear examination. In the first cused of a crime. He has not been con-place, he has a right to know the witvicted and he is presumed to be inno- nesses and have their names upon the incent. Citizens are not to be "sent for," dictment: Sadler's Criminal Procedure, and compelled to leave their own affairs, except by proper writ of subpoena, which the courts alone have power to issue.

245; and, again, looking at the practical side, the accused could see the witnesses when they were inspecting him, and, of course, could report to his counsel. The given reason, therefore, is inadequate. We need not speculate whether there is any other not disclosed, for there can be no legitimate reason why the prosecuting officer should fear the presence of the lawful defender of the accused.

So much for taking an accused from the prison. Now, as to taking him to the district attorney's office, that is taking him into the office of the man whose official duty it is to prosecute him. The proposition would be bad enough if the personnel of the district attorney's The defendant here is not unwilling to office were made up wholly of members submit to an inspection. At the arguof the bar. Their knowledge of the pro-ment, he said, through his counsel, that prieties would no doubt be a sufficient he would willingly show himself, either protection to the accused-although the at the prison or, if more convenient to fact that they make the present motion the witnesses, elsewhere, and that he somewhat shakes the position. But the would, with his counsel, go or permit. "district attorney's office" is not com- himself to be sent to the office of the posed of lawyers alone. He has a force district attorney to meet the witnesses. of twenty detectives, and it is asking me All he asks is that his counsel be presto have more confidence in the ethics of ent. And if the accused wishes his counpolicemen than I have to have me be- sel present at the inspection, he shall lieve that twenty efficient detectives have him. would miss the opportunity afforded by A statement was made at the arguthe presence of an accused defendant ment that untried prisoners have been alone with them and their fifteen wit- taken from prison at unusual hours and nesses. I had an example of the way in to improper places and by unauthorized which the defendant's rights were re-persons. This was not supported by evi

fects therein.

move to strike off the statement for merely

formal defects.

Stewart & Gerber, for plaintiff.

dence, and I am not prepared to believe sue on its merits, go back and attack his it. It is unfortunate that such statements opponent's earlier pleadings for formal deshould be made. The opportunity to After the defendant had filed an affidavit make them would not exist if the status of defense and the court had refused plaintiff's motion for judgment for want of a sufof the untried prisoners were respected ficient affidavit of defense, and after the and the law as to his custody strictly case had been put on the list for trial, it followed. Such prisoners are in the cus-was clearly too late for the defendant to tody of the court. Neither the police nor the District Attorney have any control over them. They are committed to Rule to strike off plaintiff's statement prison solely for safekeeping, to insure in Edward P. Noll v. Dubuque Fire and their attendance at trial, and are not to Marine Insurance Company, No. 31 Apbe brought there from by the order of ril Term, 1920, in the Court of Common any other person than a judge, nor by Pleas of York County, Pa. Refused. any other agent than the officers of the court, including the Sheriff. The court and the Sheriff have an ample force of Niles & Neff, for defendant. officers to guard them. When brought from prison, prisoners are not to be December 20, 1920, Wanner, P. J.taken, even temporarily, to any other This case was at issue and on the trial place than the court-room or the cell-list, when the defendant moved the room of the court. Under the present court to strike off. the plaintiff's statepractice, the Superintendent of the ment for non-conformity with the proCounty Prison sends prisoners to court visions of Section 5 of the Practice Act, upon orders under the seal of the court, Nineteen Fifteen, P. L. 483. The deattested by the clerk. Such an order is sufficient authorization for the superintendent's action. No such order, however, may be issued by the clerk except under the direction of one of the judges of the Courts of Quarter Sessions and Over and Terminer.

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fendant had filed an affidavit of defense, the plaintiff had moved for judgment for want of a sufficient affidavit of defense, and the court had refused it before this motion was filed. On that state of the record, it was clearly too late to move to strike off the statement for merely formal defects. The decisions on this subject, under different systems of pleading, both before and since the Practice Act, Nineteen-Fifteen, have held that he who would take advantage of, or except to, technical and formal defects in the pleadings, must do so promptly, in limine, and that he cannot after putting the case at issue on its merits, go back and attack his opponent's earlier pleadings for formal defects therein.

Filing an affidavit of defense, containing no set off or counter-claims, puts the case at issue under the Practice Act, Nineteen Fifteen, and is held to be a waiver of objections to the formal in

Noll v. Dubuque Fire and Marine sufficiency of the plaintiff's statement.

Insurance Co.

Practice-Motion to strike off statement.

These are the conclusions reached in Boyle v. Breakwater Co., 239 Pa. 580, where as in this case, the defendant had filed an affidavit of defense on the merits of the case, and plaintiff had moved

He who would take advantage of, or ex-for judgment for want of a sufficient cepts to technical and formal defects, in affidavit of defense, before the motion to

pleadings, must do so promptly, in limine,

and he can not, after putting his case at is- strike off the plaintiff's statement was

C. W. A. Rochow, District Attorney,

made. That case was decided prior to the passage of the Practice Act, Nine- and H. A. Gross, for Commonwealth. teen Fifteen, but its reasoning is equally applicable now, and it has been followed since the passage of said act in the following cases: Fuller v. Stewart Coal Co., 27 Dist. Rep. 512; Phila. Co. v. Sheehan, 26 Dist. Rep. 436-476.

J. G. Glessner and H. H. Jacobs, for defendant.

But there are also reasons peculiar to this case, why this motion should not be granted. It is one of twenty cases which were brought by this plaintiff against as many different insurance companies to recover damages for the destruction of personal property in the same fire. One of these cases has been exhaustively tried at great length, and all the material facts of the plaintiff's claim were fully developed at that trial.

October 18, 1920, Wanner, P. J.-It appears from the evidence taken in this this complaint against her husband, had case that the prosecutrix before bringing procured an order of maintenance for the children then living, from the Court of Quarter Sessions of the Peace of Cumberland County, Pa. Since that time another child has been born to her, while she was a permanent resident of York for the support of which child she now County, Pa., where she still lives, and

benefit of herself and all of his minor

asks an order of maintenance in this The case was conducted by counsel and special representatives of all the de- county. It is objected that this comfendants, who will also try all the re-plaint should have been brought in Cummaining cases. They are consequently berland County, where the other comas fully cognizant of the details of the plaint was made, though the mother was plaintiff's claim, as if they were set forth then as now, a resident of York County, in order to avoid unnecessary duplicain a new statement. This defendant will tion of cases and of costs in different not be prejudiced therefore, by the refusal of this motion, whereas its allow-jurisdictions, for substantially the same ance would greatly and unnecessarily subject of litigation. delay the progress of the plaintiff's case. Now, to wit, December 20th, 1920: The defendant's motion to strike off the plaintiff's statement is overruled and refused.

Q. S. of

These suggestions are reasonable and entitled to due consideration; but they are not in our opinion, conclusive against a hearing and decision of this case in this court.

The maintenance of this child, then unborn, was not included in terms in the order made by the Cumberland County York Co. Court and there is no evidence before us indicating that such was the intent and purpose of the Court, though its birth may then have been expected as is now alleged.

Commonwealth v. Erney

Maintenance - Orders in different counties.

The fact that an order on a father for the maintenance of his children was made by the Court of Quarter Sessions of one County, is not a sufficient reason to prevent

the Court of another county from making an order on him for the support of another child, who was not included in the former order, but was subsequently born in the latter county, where the mother resides.

To refuse an order here, would bar the petitioner's future recovery of anything elsewhere for the maintenance of this child, because the matter would hereafter be res judicata.

We have no authority to refuse to hear her case, and to order her complaint to be made in another jurisdiction when she resides in this County.

On hearing in the Court of Quarter Sessions of the Peace of York County, Pa., of Commonwealth v. David Erney. September Sessions. 1920, non-support of child. Order for maintenance en- and dispose of it in the usual way. tered.

As the case is clearly within the jurisdiction of this court, and has not already been heard in any other jurisdiction, we have no alternative but to hear

The evidence indicates that the earn

ing capacity of the defendant is sufficient ampton County, upon payment by her of to meet a reasonable allowance for the the amount due from defendant to plainsupport of this child, in addition to what tiff for her undivided share or portion in was ordered by the Cumberland County the said real estate, which said payment court to be paid for the support of his was made on the 22nd day of April, other children. 1918. In the statement of claim plaintiff Now, to wit, October 11th, 1920: The avers that defendant received certain defendant is ordered to pay to his wife, rentals for said premises from April 28, Amanda Erney, for the support of their 1917, to April 22, 1918, of which amount minor child, Franklin Bernard Erney, the plaintiff is entitled to the one-fourth the sum of $8.00 per month until the portion thereof.

further order of this Court, and also Plaintiff further avers in said statethe cost of these proceedings, said payment that the remaining portion of said ment to be made in the same manner and real estate has been used and occupied at the same times as payments are di-exclusively by defendant from the 28th rected to be made under the order of the day of April, 1917, until the 22nd day of Court of Quarter Sessions of the Peace April, 1918, claiming that she is entitled of Cumberland County.

C. P. of

to her portion of the rental value for said use and occupation. Defendant filed an answer to plaintiff's statement of claim Northampton Co. admitting plaintiff's allegations as to the tenancy in common, the vesting of title of said real estate, the partition thereof by the Court of Common Pleas of Northampton County, and, raising a

Resse v. Laufer

Partition-Adjustment of rental value-question of law as to the right of plaintiff to recover mesne profits alleging that

Tenants in common-Act June 24, the matter is res adjudicata.

1895. P. L. 237.

A failure by a tenant in common to have

the rental value of real estate held in com

mon adjusted in partition proceedings will not be a bar from recovery of a proportion

ate part of such rental value.

con

At the argument, defendant tended, under the Act of June 24, 1895, P. L. 237, the rent claimed by plaintiff should have been adjusted in the partition proceedings, and, failing in this. plaintiff is now estopped from bringing

Sur question of law raised in affidavit action to recover such rent. The records of defense.

I'm. Fackenthal, for defendant.

Smith, Paff & Laub, for plaintiff.

do not disclose any adjudication of the rental value of said premises. The Act of June 24, 1895, P. L. 237, provides: "That in all cases in which any real estate is now or shall be hereafter held by July 26, 1920, McKeen, J.-This is an two or more persons as tenants in comaction by plaintiff to recover from de-mon, and one or more of said tenants fendant her proportionate share of the shall have been or shall hereafter be in reasonable rental value of certain real possession of said estate, it shall be lawestate situated in the Borough of Nazar-ful for any one or more of said tenants eth, Pennsylvania. From the 28th day in common, not in possession, to sue for of December, 1898, until the 22nd day and recover from such tenants in possesof April, 1918, plaintiff and defendant |sion his or their proportionate part of were owners in fee of said real estate as the rental value of said real estate for tenants in common, subject to a life es- the time such real estate shall have been tate in favor of Margaret E. Rohn, now in possession as aforesaid; and in case deceased. The life estate of Margaret of partition of such real estate held in E. Rohn determined and ended by her common as aforesaid, the parties in posdeath on April 28, 1917. The title to session shall have deducted from their said real estate is vested in defendant by distributive shares of said real estate the virtue of partition proceedigs duly had rental value thereof to which their coin the Court of Common Pleas of North- tenant or tenants are entitled." It can

not be held under this act that where a rer attacking the statement on the tenant in common fails to have the rental ground of its sufficiency to sustain an value of real estate held in common ad-action of trespass against the defendant. justed in partition proceedings, that such In Lewis v. Jones, 17 Pa. 262, it is failure to adjust could be termed res ad-stated "It is implied from the letting of judicata and bar such tenant from re-a farm for agricultural purposes that the covering his or her proportionate part of tenant will cultivate the land according the rental value of said estate from the to the rules of good husbandry." And tenant in possession. It is well estab- (quoting Daniel v. Pond, 21 Pick. 371) lished by the Pennsylvania authorities "Manure on a farm occupied by a tenant that there must be a hearing on the at will or for years in the ordinary merits before the doctrine of res adjud- course of husbandry, consisting of colicata would be applicable. The defend-lections from the stable and barn-yard ant in filing her affidavit of defense is, by usage, practice and the general unraising the question of law has pro-derstanding, so attached to and conceeded under the twentieth section of the nected with the reality, that in the abPractice Act of 1915 and is entitled to sence of any express stipulation on the file a supplemental affidavit of defense to subject, an outgoing tenant has no right the averments of fact contained in the to remove the manure thus collected, or statement. to sell it to be removed, and such reAnd now, July 26, 1920, the question moval is a tort for which the landlord of law raised by defendant is overruled. may have redress. The tenant has a Defendant is directed to file a supple-qualified possession of such manure for mental affidavit of defense to plaintiff's a special purpose only, that is, to be used statement of claim within fifteen days.

C. P. of

on the farm. The moment that he sold it, the act was an abanadonment of the special purpose, and it vested in the landlord as owner of the freehold, and the Erie Co. action of trespass lies for removing it." The opinion in this case also quotes with approval 2 Kents Com. 347, as follows: "the policy of encouraging and protecting agricultural improvements will Landlord and tenant-Manure on farm. not permit the outgoing tenant to remove the manure which has accumulated Where a farm is let for agricultural pur-upon a farm during the course of his

Doying v. Hogaboon

poses, manure made on the premises cannot be removed by a tenant except by consent of the landlord.

term."

"Where a farm is leased for agricul

Rule for judgment on affidavit in the tural purposes, good husbandry, which is

nature of a demurrer.

E. D. Loose, for defendant.

S. Y. Rossiter, for plaintiff. December 21, 1920, Hirt, J.-This case is before the court on an affidavit of defense in the nature of a demurrer.

implied by law in every such contract, without any express stipulation therefor would require that the manure be left on the premises. It is a question of law to be determined by the court what is the using of land in a husbandlike manner.” Barrington v. Justice, 2 Clark 289.

The above decisions have been folPlaintiff avers in substance that on lowed without exception so far as we March 31, 1919, he was the owner of a have been able to find and it must be farm and that defendant occupied it as considered the settled law that where at tenant "for agricultural and stock raising farm is let for agricultural purposes, purposes"; that a quantity of manure manure made on the premises cannot be made on the farm had accumulated removed, except by agreement of the which defendant on said date unlawfully parties.

removed and sold, to the damage of And now, to wit, December 21, 1920, plaintiff. To this statement defendant the demurrer filed August 31, 1920, is filed an affidavit in the nature of demur-overruled.

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