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McCalla's Estate, 16 Pa. Sup. Ct., 202 (205).

"Clauses in wills revoking devises in favor of any child who shall dispute or contest, are to be construed strictly, as they go to divest estates already vested. Where such provisions are merely denounced against, without a devise over, they are only to be considered in terrorem." Chew's Appeal, 45 Pa., 228.

If then expressions of wish, desire, intention, such as the above, do not forfeit or defeat estates given by will, much less would a parol declaration of a purchaser of land, made at the time of purchase by a person dying intestate, impose a limitation upon the right of the heirs at law; and it may be questioned whether such declarations are entitled to any consideration whatever.

And now, September 22, 1914, the above case having been heard upon petition, answer and demurrer thereto, upon due consideration, the prayer of the petition as to the permit is granted and it is ordered and decreed that a writ of mandamus issue out of the Court of Common Pleas of Lehigh County, directed to the "Fairview Cemetery Association of Allentown" and Miles L. Eckert, treasurer of said association, commanding said association and said treasurer to issue to Emma Deshler, the petitioner, a burial permit for the interment of the body of Christian Weiss in lot 62, Section F, of said cemetery, conveyed to Mary C. Deshler by deed dated May 5, 1891. The prayer of the petition for the registry of the assignment to Emma Deshler is refused.

OTT vs. EBERTS & CO.

Practice-Plea in Abatement.

A plea in abatement must give to the plaintiff a better writ, and, when filed, be verified by oath or affirmation, so as to enbale the plaintiff to avoid the same objection in framing a new issue.

Such a plea must be formal in character, for the reason that it produces an issue, which must be disposed of before proceeding further.

In the Court of Common Pleas of Lehigh County. Assumpsit. Plea in Abatement. Rule to Strike Off Plea.

Claude T. Reno, for Plaintiff.

W. E. Doster and Francis J. Lewis, for Defendants.

Laird H. Barber, P. J., Fifty-sixth Judicial District, specially presiding, November 16th, 1914. Upon the return of service of the writ an appearance and plea were entered in the following form:

"Enter my appearance for the defendants d. b. e. and plea in abatement that there is no such firm or corporation as defendants named in the above case." (Signed by attorney.)

The service of the writ is not questioned, and the plea raises the question of misnomer or perhaps the entity of the defendant.

"A plea in abatement is correct practice where the writ is regular on its face but it is desired to set up matter tending to defeat or suspend the writ, but which does not debar the plaintiff from recommencing his action at some other time or in some other way. Such pleas go to the jurisdiction of the court, to the disability of the parties."

186.

Street Ry. Pub. Co. vs. Conner, et al., 13 Dist. Rep.

Upon motion of plaintiff, a rule was granted to show cause why the plea filed, should not be stricken off for the following reasons:

I. Because the plea does not give plaintiff a better writ.

II. Because the plea is not verified by oath or affirmation.

This practice is recognized in Daly vs. Iselin, 212 Pa. 279 (288) and other cases.

The answer to the rule says:

I. "There is no such firm or corporation as J. A. Eberts & Co., the defendants named in the writ.

II. That J. A. Eberts & Co., Inc., is a corporation chartered under the laws of Pennsylvania." And is signed, and sworn to by Winfield Steck, Treas. of J. A. Eberts & Co., Inc.

The answer is not an amendment to the plea, but rather an attempt to remedy the defects in the plea, as set forth in plaintiff's motion, by suggesting the existence of a corporation under the laws of Pennsylvania, but without stating that the corporation is the proper defendant to be sued.

The plea itself does not give a better writ, as required, or, in other words, correct the mistake so as to enable the plaintiff to avoid the same objection in framing a new writ. It is only after the plaintiff moves to strike off the plea, that a suggestion is made that there is a corporation by the name of J. A. Eberts & Co., Inc. The answer is made by the treasurer of a corporation not served, and not in court by any formal appearance. It cannot properly be said to be an answer by the defendant, if such there be, or by a person authorized to speak for the parties served.

The plea in abatement when used must be formal in character, for the reason that it produces an issue, which must be disposed of before proceeding further. It is, as a rule, without formal commencement but in conclusion "prays judgment of the said writ that the same may be quashed," which is the only judgment that can be given for defendant.

The statute of 4 Anne Chap. 16, Sec. 11, (Robert's Dig. of British Statutes, p. 44) provides that "no dilatory plea shall be received in any court of record unless the party offering such plea, do, by affidavit, prove the truth thereof, or show some probable matter to the Court to induce them to believe that the fact of such dilatory plea is true." This statute is in force in Pennsylvania. See also Stephen on Pleading, page 441.

"Pleas in abatement without affidavit when filed will be stricken off." Rapp vs. Elliot, 1 Yates, 185, 2 Dall. 184, Com. vs. Wilson, 7 W. N. C., 62.

"There was no issue either of law or of fact upon either of the pleas. A motion was made to strike them off. Such a course is proper when the plea is irregularnot filed in time-not verified by affidavit; or when the pleas are double, leave of Court never being granted, under the Statute of Anne to file more than one dilatory plea."

Pitts. & Conn. R. R. Co. vs. Railroad Co., 76 Pa., 481 (489).

See also Troubat & Haly's Practice, Vol. 1, P. 681, (6th Ed.).

And now November 16th, 1914, the plea filed being irregular in form and not verified by affidavit, the rule to strike off is made absolute.

SCHWOYER vs. RINN.

Practice-Judgment for Insufficient Affidavit of Defense.

Where the defendant denies liability as to all the claims in the plaintiff's statement, and as to a claim for rent alleges a partnership between plaintiff and defendant, and as to a claim for cash advanced and merchandise sold and delivered alleges that they were to be adjusted in connection with the settlement of the partnership accounts, but does not allege that these items were furnished to, or used by the partnership in the business, a rule for judgment for want of a sufficient affidavit of defence for the entire amount claimed will be discharged.

In the Court of Common Pleas of Lehigh County. Assumpsit. Rule for Judgment for Want of a Sufficient Affidavit of Defence.

Robert L. Stuart, for Plaintiff.
Butz & Rupp, for Defendant.

Barber, P. J., Fifty-sixth Judicial District, specially presiding, October 5, 1914. This suit is brought to recover the sum of $457.39 for rent of offices, cash advanced with interest, and for merchandise sold and delivered.

The affidavit of defense denies liability as to all the items of the statement, and as to the claim for rent, alleges a partnership between the plaintiff and defendant "formed for the purpose of trading in and buying and selling real estate," and that the rooms for which rent is claimed, were furnished and used in connection with the partnership. The allegation not having been denied, must be accepted as verity and is sufficient to prevent judgment.

This comes within the familiar rule that one partner cannot sue another in assumpsit for matters growing out of the partnership business, the partnership must first be settled.

Riley vs. Eigo, 1 Sup. Ct., 139.

As to the items for cash advanced and merchandise sold and delivered, defendant says that they were to be adjusted in connection with the settlement of the partnership accounts, but does not say that these items were furnished to, or used by the partnership in the business. There is no doubt that with reference to transactions outside the partnership business, partners deal with each

other as strangers, and may sue and recover without a partnership settlement.

But the attorney for plaintiff by his motion asked the Court to enter "a rule on the defendant to show cause why judgment should not be entered for want of sufficient affidavit of defense," without specifying any particular items as to which he desires the Court to adjudge the affidavit to be insufficient in law.

"It was for the plaintiff, in the first instance to point out specifically the insufficiency of any portion or portions of the affidavit of defense against which a portion or portions of his claim should prevail, and it was then for the Court, if the plaintiff was entitled to judgment, to 'adjudge' what portion or portions of said affidavit of defense were insufficient in law.......In making absolute a rule for judgment for a portion of the plaintiff's claim, when the application for it is in proper form, pointing out specifically the insufficiency, the Court adjudges what portion or portions of the affidavit of defense are insufficient, that the record may show what the adjudication is."

Pierson vs. Krause, 208 Pa., 115 (118).
Moore vs. Eyre, 32 Pa. Sup. Ct., 259.

Smucker vs. Grinberg, 27 Pa. Sup. Ct., 531.
Rule discharged.

BITTNER ET AL. vs. SOFRANSKY & CO.

Landlord and Tenant-Assignment of Lease-Bankruptcy— Evidence.

Plaintiffs claimed to recover under an alleged parol agreement to pay rent for certain premises during the time and at the rate per month fixed in a certain written lease which had been assigned by a Receiver in Bankruptcy to the defendants. Defendants claimed to have taken possession of the premises under and by virtue of the assignment of the lease by the receiver in pursuance of an order made by the United States District Court. Defendants assigned the lease to a third party. Held, that, if the defendants held under the assignment by the receiver, they would not be liable for rent accruing subsequent to their assignment to the third party.

When proof is by a copy, an examined copy, duly made and sworn to by any competent witness, is always admissible.

In the Court of Common Pleas of Lehigh Conuty. Assumpsit. Rule for New Trial.

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