INDEX OF CASES REPORTED IN THIS VOLUME ABSENTEE. The plaintiff in an action against a landlord for injury sustained while a guest of the tenant, due to disrepair of a stairway on the demised premises, stands not as a stranger, but as one in privity with the contract Decedents' estate-Distribution—Absentee-Presumption of death-AuditRefunding bonds-Act of 1885-Fidu- rights of the tenant; and, as such, has the ciaries Act of 1917. -HOWE'S ESTATE, 7 ACCOUNTS. Contracts Commission on sales burden of affirmative proof both as to defendant's duty under the lease, and his knowledge, either actual or imputed, of the occasion for repairs. As between the parties to a lease there is Vendor and vendee Assumption of no implied covenant on part of the lessor to debts of vendor - Vendee of business make occasional repairs. If such duty exmay be sued directly for breach-Prac-ists, it must be so by reason of the terms of tice Act of 1915--Account. -JOSEPH SCHLESINGER V. NEW YORK & Decedent's estate-Account, method of stating-Purpose of an account-Verifi cation. -ESTATE OF MARIE REED, DECEASED, 170 the demise. The mere fact of infancy is not a bar to an action ex delicto against a minor in his proper person. Liability, if any, for his tor tious acts being imposed by policy of law, and not by his consent, has nothing in com mon with the grounds of immunity of an infant from suit on his contract. Hence, service on his guardian is not necessary before Decedents' estates. Accounts Re- the minor is in court by reason of service in opening and revising adjudication-Act person. 7 June, 1917, P. L. 514, Sec. 48—Orphans' court practice. -BEARD'S ESTATE, 190 ACTIONS. Service of a summons on one as guardian ad litem who has not been constituted such by judicial appointment pro hac vice in the pending proceeding, is a nullity. -POLANSKY V. EDWARDS ET AL., 179 Actions Partics Misjoinder-In- Practice-Joint contract-Suit by trusjury due to defective stairs on demised tees for parties plaintiff. premises-Evidence-Liability of land--RICK, TRUSTEE, V. BELL, 96 lord for injury due to disrepair-Burden of proof-Infants-Action ex delicto- AFFIDAVIT OF DEFENSE. Personal service on minor. For injury by reason of defective construc Practice Act of 1915-Sufficiency of tion or disrepair of demised premises, the affidavit of defence-Warranty. holder of a life estate in the premises and the owner of the remainder in fee are not liable jointly. As between them there is nothing in the nature of an estate in common, and the theory of joint liability flowing fem joint demise is untenable. An affidavit of defence which admits the purchase of the merchandise on account of which the action was brought, and sets up a ་ ་ alanty, alleging breach thereof, but dees rot aver an offer to return the goods or a sale of them at a loss, or otherwise indicate what has been done with them, is defective allegations of fact to the consecutive paraand insufficient to prevent judgment. graphs of the statement. it fails to meet the A warranty as a defence must be set worth requirements of the Act of 1915. in its terms, and the affidavit of defence-FREED V. FREED, 28 must disclose whether it was express or implied and by what authority it was made. -LERCHER V. LEVIN, 203 Affidavit of defense-Insufficient denial of facts-Sale-Gambling devicePurchase price-Judicial notice. In a suit for the price of candy sold and delivered to the defendant, an affidavit of defense is insufficient which admits the correctness of the account but avers that the defendant bought the candies together with a punch-board on the representation of the plaintiff's agent that one of the judges of the local court had advised the plaintiff that the punch-board was not a gambling device, whereas the defendant was arrested and sen tenced for operating it and the punch-board confiscated, without alleging that the said representation of the plaintiff's agent was not true. The court cannot take judicial notice of the untruth of said representation. A defendant must set forth all the facts necessary to constitute a good defense, in his affidavit to prevent judgment. There was nothing to prevent the plaintiff Affidavit of defense-Sales-Sales by description-Right of inspection before payment-Act of 1915, P. L. 556, Section 47. The purchaser has generally the right to an inspection and an examination of the goods in order to determine whether they are the quality contracted for. It is the duty of the seller to afford an opportunity for an inspection and if such is not afforded or inspection prevented by the acts of the seller, there is no proper performance of the con tract. Where goods are bought by description the buyer has the right to examine the same before making payment, and if the seller refuses to allow the buyer an opportunity to examine the goods an affidavit of defense which sets up such refusal is sufficient, -DESMOND V. KEYSTONE RUBBER MANUFACTURING CO., 169 Fictitious name-Affidavit of defense. -KOONS &C. V. NICE, 21 Practice Affidavit of defense from selling a punch-board to the defendant. Amendment--Sec. 12 of Practice Act of The violation of the law for which the de 1915. P. L. 483. fendant was punished and the punch-board-NOLL V. NORTHERN ASSURANCE CO., 61 confiscated was its operation and not the sale, purchase or possession of it. Pleading Plaintiff's statement-Affi —S. K. BITNER & CO., INC. V. H. T. WARFEL, davit of defense-Questions of law 204 Affidavit of defense raising questions of law Set-off before justice of the peace-Act of March 20, 1810, 5 Sm. L. 161-Act of July 7, 1879, P. L. 194. An affidavit of defense raising questions of law must confine such questions to those appearing in the statement of claim. The defendant may not set off more than one hundred dollars before the justice of the peace and the Act of March 20, 1810, 5 Sm. L. 161 is not amended in this respect by the Act of July 7, 1879, P. L. 194. -HANNON V. SCHILBE, 11 Affidavit of defense-Specific answer -Act of May 14, 1915, P. L. 483. An affidavit of defense must be specific, and must answer each allegation of fact in the plaintiff's statement. Where an affidavit of defense follows the Damages-Sales Act of May 19, 1915, DODSON CANNING CO., 90 V. WILLIAM M. Contracts-Sales by agents-Payment statement for the first ten paragraphs, and to agent-Authority to receive money. therefter is not responsive in its denials or -SHEPPARD on AccuFIM CO. V. DIMARTE. 267 Certiorari Automobiles-Motor vehicles-Act of June 30, 1919, P. L. 678Highway traffic Arrest on view or warrant-Information to defendant -CITY OF BETHLEHEM V. CATALANO ET AL., Fine and penalties. -ALEXANDER V. ALEXANDER, 208 Divorce-Practice-Sufficience of libel -Amendment of libel. -STREET V. STREET, 133 Prectice Affidavit of defense Amendment-Sec. 12 of Practice Act of 1915, P. L. 483. -NOLL V. NORTHERN ASSURANCE CO., 61 Plaintiff's statement Amendment of Replevin. -ATLANTIC MOTOR TRUCK CO. V. KACHEL, 108 APPEAL. On warrant of attorney containing provision for attorney's commission, plaintiff being himself an attorney, may act as his own attorney in the collection of his own judgment, and if he is forced to collection by legal process, he is entitled to attorney's commission as if he had employed another. Attoreny's commission not necessarily payable as stipulated and courts have power and Practice, C. P.- Appeal to Superior duty to regulate on reasonable basis. Court Execution Supersedeas-Act 12 May, 1897, P. L., Sec. 2. Where commission in one judgment, considering delay and obstruction may not be excessive at the stipulated ten por cent., yet taking the matter with another closely re and considering that both judgments were practically a single proceeding, a uniform five per cent, will be construed as reasonable. -ROSENBLUTH V. BETTERLY, 198 An appeal may be perfected at any time within six months. If proper security is entered and no execution is then outstanding.lated judgment which provides five per cent., it supersedes further action in the court below. It is only when an execution has been issued or distribution ordered that bail, to have the effect of a supersedeas, must be entered within three weeks from the date of the decree, judgment, or sentence. -SCHLIPPERT V. ORTH, 38 AUDIT. Decedents' estate Distribution-Ab Justice's court--Summary conviction sentee-Presumption of death-Auditunder Automobile Act of June 30, 1919, Refunding bonds-Act of 1885-FiduP. L. 678-Appeal-Filing, time-Allow-ciaries Act of 1917. ance-Security. -COMMONWEALTH V. TANNEBAUM, 197 Practice on appeal from magistrateFailure to pay costs or give bail-Appeals --HOWE'S ESTATE, 7 AUTOMOBILES. Criminal law-Automobiles-Stopping nunc pro tune-Laches-Motion to per--Highways-Indictment - Act of June fect appeal-Acts of March 20, 1845. P. 30, 1919, P. L. 678. L. 188; May 29, 1907, P. L. 306. -COMMONWEALTH V. SUTTON, 19 Justice's court-Summary conviction Criminal law- Embezzlement by under Automobile Act of June 30, 1919. P. L. 678-Appeal-Filing, time-Allowance-Security. broker-Embezzlement by agent-Suffi Certiorari-Automobiles-Motor ve- CERTIORARI. hicles-Act of June 30, 1919, P. L. 678— Highway traffic-Arrest on view or warrant - Information to defendant Fine and penalties. -COMMONWEALTH V. LEVY, 145 BAILMENT. Certiorari Jurisdiction Landlord and tenant, proceedings to obtain possession-Act of March 31, 1905, P. L. 87. The Act of March 31, 1905, P. L. 87, providing for notice in the recovery of possession of premises by landlords, requires that the landlord shall serve upon the tenant a notice, in writing, demanding therein that he Bailment Rental payable in instal-requires the tenant to deliver to him posments-Interest on rental Default in payment of instalments-Waiver of default-Replevin. A chattel was bailed for a specified term by a contract, which provided that rental should be paid in instalments and that upon default in payment of any instalment the bailor might retake the chattel. At the time of the execution of the contract the bailor received interest on the full rental for the whole term. Default was made in payment of an instalment and the bailor issud a writ in replevin within the term. Held: That whether the payment was made for interest, and whether it purcased a credit for the term, were questions for the jury and that a verdict for the defendant should be sustained. --AUTOMOBILE FINANCE CO. V. SLOAN, 128 Equity-Trustce-Bailment. -DELLONE V. FIRST NATIONAL BANK, 49 BANKRUPTCY. Criminal law-Bankruptcy--Disposing of goods to defraud creditors-Evidence -COMMONWEALTH V. LEVENTHAL, 20 BRIDGES. session of the premises, within thirty days from the date of service. Without such notice the magistrate does not have jurisdiction. Where, in a proceeding before a magistrate for possession of premises leased for a term of one month, the record shows that the plaintiff being desirous "to have and again repossess the said premises" gave the tenant "notice of said intention repeatedly," and shows no other notice to the tenant to quit, the requirements of the Act of March 31, 1905, P. L. 87, have not been complied with, and the magistrate is without jurisdiction. -HEALY V. BRENNEMAN, 109 Certiorari-Quashing writ of-Allocatur-Act of April 14, 1905, P. L. 169. A special allowance from the court of common pleas must be had for a writ of certiorari to a justice of the peace in a case of summary conviction for trespassing on posted land in violation of the Act of April 1, 1905, P. L. 169; and a writ of certiorari issued in such case without such allowance Certiorari -Recognizance deas-Motion to quash writ of certiorari. A writ of certiorari from the Court of County bridge Province of Grand Common Pleas to a justice of the peace will Jury and the Court. The Court of Quarter Sessions appointed viewers to view the site of a proposed county bridge; the viewers reported favorably thereto. This report was confirmed by the court and laid before the next grand jury, who refused to concur with the viewers. By not be quashed because no recognizance was No recognizance filed by the defendant. need be given on taking out a certiorari, but, unless it be given, the writ will not operate as a supersedeas. -LARK V. SNYDER, 112 Certiorari Automobiles-Motor veleave of court the viewers report was laid hicles-Act of June 30, 1919, P. L. 678— before another grand jury, who concurred Highway traffic - Arrest on view or therewith. A third grand jury also concur-warrant - Information to defendant red with the viewers' report. When the re port was presented to the court for final approval, it was held that when the first grand jury refused to concur with the report of the viewers, the proceeding was at an end and that all later action thereon by the court and the grand jury is "ultra vives." -IN RE GLADE RUN BRIDGE, 31 Fine and penalties. Offenders against the provisions f the Act of June 30, 1919, P. L. 678, regulating the operation of motor vehicles on public highways, may be arrested on view or on proceedings on warrant. If arrested on warrant a copy of the information must be furnished when the arrest is made; if arrested on view an affidavit setting forth in detail the offense complained of must be furnished the accused a reasonable time befor the hearing, in order to give him an oppe tunity to prepare a defense if he so deses. Where an arrest is made on view, subsequent proceedings on warrant is surplusage and cannot in any way change the proceedings. It is important that the magistrate keci an accurate record on account of the distribution of fines and penalties. The Act CHARGE OF COURT. Criminal law Embezzlement by broker-Embezzlement by agent-Suffi ciency of evidence-Charge-Reasonable doubt, sufficiency of charge on-Failure to request more specific instructions— Appeal, new theory on. -COMMONWEALTH V. WILT, 181 Criminal law-New trial-Evidence of provides that all fines and penaltics unde: complaint of rape-Evidence admissible its provisions, and all bail forfeited, shall be paid to the state treasurer, except those col on one count but not on another-Reputation, value of evidence of-Charge on lected for violations of the provisions as to reputation. speed or weight of motor vehicles, which-COMMONWEALTH V. KELLER, 185 shall be paid to the treasurer of the city borough, town or township wherein the vio CITIES OF THE THIRD CLASS. lation occurred. -COMMONWEALTH V. LEVY, 145 Police-City of the third class-Council, jurisdiction of to hear complaints against police-Act of May 17, 1919, P. Certiorari — Alderman acting out of his ward on request of mayor-Record L. 204, and May 27, 1919, P. L. 310. of proceeding-Justice's court. An alderman of a city of the third class has no jurisdiction outside of the ward in which he was elected unless he sits at the request of the mayor when the latter is unable or unwilling to act. The mere fact that an alderman of a city resides in that part of the city which is in another county docs not disqualify him to act in a ward in another county when requested to do so by the mayor who is unable or unwilling to act. Where an alderman acts outside of the ward in which he was elected at the request of the mayor, a record which does not show the request is defective, and judgment entered in such a case will be reversed, -CITY OF BETHLEHEM V. DURNING, 166 Certiorari-Allocatur. An allocatur must be had from the Court The acts of May 17 1919, P. L. 204, and of May 27, 1919, 310, relating to cities f the third class, are pari materia and must be construed together; this is more especially true as both were passed at the same session. While the act of May 17, 1919, P. L. 201, standing alone might be properly construed as authorizing council to hear all complaints against employees of the police department, except as therein otherwise provided, yet when read in connection with the 25th Section of the Act of May 27 1919, P. L. 310, it is apparent that the duty developes upon the mayor first to hear and determine al complaints against such employees in the discharge of their duties, and he is directed to submit his report thereon to council for its action only when he finds the complaints well founded; and the right of council to hear and determine such complaints is limited to those s submitted by the mayor. The mayor of the city of the third class is of Common Pleas for a writ of certical the chief executive magistrate of the city, to a justice of the peace or an alderman it a case which is of a criminal nature, as in suits for a penalty, and in cases of summary conviction. A motion to quash a certiorari to a justice of the peace or an alderman must be made promptly. The taking of any further proceedings will be construed as a waiver, and where circumstances justify it, the allocatu: may be allowed nunc pro tunc. City of Bethlehem vs. Michael Durring, reported in 17 Northampton County Reporter, 353, followed. and ex officio superintendent of the department of public affairs, which has control of the police department. -CITY OF BETHLEHEM V. CATALANO ET AL., mayor heard the complaint, and found and 195 determined that the complaint was not well |