Publishers > Stationers, xsom street, ladelphia. UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY LAW DEPARTMENT MOTIONS AND RULES AT COMMON LAW ACCORDING TO THE PRACTICE OF THE COURTS OF COMMON PLEAS OF PENNSYLVANIA BY JAMES T. MITCHELL, LL.D. CHIEF JUSTICE OF THE SUPREflE COURT OF PENNSYLVANIA SECOND EDITION ENLARGED AND ANNOTATED TO 1906 BY WILLIAM D. NEILSON Of the Philadelphia Bar PHILADELPHIA REES WELSH & CO. LAW PUBLISHERS and BOOKSELLERS 901 BANBOM STREET 1906 T \c\0G Entered, according to Act of Congress, in the year 1906, by REES WELSH & CO., in the office of the Librarian of Congress at Washington, D.C. PREFACE. The original address by Chief Justice Mitchell, then one of the Judges of Common Pleas No. 2 of Philadelphia, before The Law Academy of Philadelphia on May 15th, 1879, has long been out of print, and the changes in prac- tice since that time being considerable, the whole work while still retaining the main features of the original, has been revised, enlarged and brought down to date, under the supervision of the author, by the undersigned. WILLIAM D. NEILSON. February, 1906 CONTEXTS. i \<.r I. 1. Motions and rules denned 1 2. Action by the Court mi motion by counsel 3. Office and scope of rules formerly and now :'. 4. Limit of scope 5. Tendency of present time 4 6. Parties may not attempt too much 5 7. Courts have no power to extend statutory limitation- of time 5 Where a rule may be used with effect of original pro.,-- . (> II. Motions niade in open court 7 III. Rules peremptory or " nisi" 9 Examples of former 9 Rule 23. sec. 1 Rules C. P. Phila 9 Exa7iiples of rules under 10 Rules of course and which issue on motion of counsel tiled in court office 11 Some operate as a stay 17 IV. Rules divided from another standpoint, of courso and " allocatur " 18 Classification 18 V. 1. Rules on "allocatur." 2. Founded on affidavit 19 Character of affidavit 19 Cases where language of affidavit must conform to statute. 20 3. Decree should as desired be set out 4. Notice to opposite party 31 5. When notice may he omitted 2*1 6. Motions for rules must be written 8. Application for allocatur not always ex parte .... 9. Rules peremptory not on lists 10. Rules to show cause otherwise 11. Rule 26, sec. 1 Rules C. P. Phila 23 Practice in five Philadelphia Common Pleas Courts . . 24 12. Courts will not take up case ex parte on first call . . . . 24 13. Paper books Qualities necessary for 28 14. Form of make-up of paper books 15. Affidavit of rule only available for that purpose .... 30 1G. Argument on hearing of rule 31 v yi CONTENTS. PAGE 17. Exception as to argument for new trial ....... 32 18. Motion in arrest of judgment 33 19. For judgment noil obstante veredicto 34 20. Rule for new trial 35 21. Second rule after discharge of a former 35 VI. List of principal rules 37 1. Rules relating to process 37 2. Rules relating to bail, etc 43 3. Rules relating to attorneys ■ 46 4. Rules relating to the pleadings 48 5. Rules relating to evidence 55 G. Rules relating to trial 58 7. Rules relating to verdict and assessment of damages . . . 58 8. Rules relating to judgment 60 9. Rules relating to costs 67 10. Rules relating to execution 71 11. Rules relating to mechanic's liens and municipal claims . 73 12. Rules in divorce , 81 13. Miscellaneous rules 83 14. Rules provided for by statute 88 VII. Statement of claim 90 1. Act of May 25, 1887 90 2. History of development of practice prior to the act ... 91 3. Gould vs. Gage, 118 Pa. 559 92 VIII. Requisites of valid claim 95 1. Obligation must be present at time of suit 95 2. Must be absolute 95 3. On the defendant 95 4. To pay money 96 5. Instrument sued on may consist of several papers ... 96 6. Cases on executory instruments . . .* 97 Fertig vs. Maley, 5 W. N. C, 133 99 7. Cases when instrument sued on does not show defendant's complete liability 100 8. Actual language of instrument must be given 100 9. Test of sufficiency of instrument 100 10. Copy of instrument sued on must be averred to be such . . 101 11. Mere bill not a copy of book entries 101 12. Copy to be carefully compared with original 102 13. How accuracy of copy is tested 102 14. Copy may contain abbreviations 102 IX. Affidavit of defence 103 1. When must be. filed 103 2. Must be a specific statement of facts 106 3. Form of affidavit of defence 107 4. Written instrument, how set out 108 5. General subject of sufficiency of affidavit of defence . 6. To what extent affidavit conclusive no 7. Supplemental affidavits of defence Usual purpose of supplemental affidavit Ill Court may order supplemental affidavit Ill Course when supplemental affidavit is still insufficient . . 112 X. Rules for judgment for want of an affidavit or insuf- ficient affidavit of defence \\4 Origin of judgment for want of affidavit of defence . . .114 Rule upon which Courts have settled 115 Plaintiff to avail himself of rule promptly 110 XI. Rule for judgment for part of claim 117 Act of May 31, 189:3 • .... 11? XII. Rules to open or strike off judgment lis When rule must be to open llli No authority for opening judgment of non suit 119 Rule may be made absolute on terms 1. Rules to open and strike <>!F judgment usually trei together Ijl 2. Distinction l.M 3. Rule to strike off judgment [33 4. Is in nature of a demurrer 128 5. Final judgments l.'l Defendant only to have rule 125 Instances of the rule 125 As to time within which the rule may be taken .... L27 XIII. Rules relating to mechanics' liens and municipal claims 1. Mechanics' liens 2. Pennsylvania Bar Association on mechanics' liens . . 129 3. Act of June 4. 1901 129 4. Legislation on mechanics' liens 5. Subject of rules in mechanics' liens 180 6. When lien is defective 180 7. Test of strength of rules 182 Municipal claims 182 1. Criticism of municipal claim laws 182 2. Classes of rules 188 3. Example of irregularity in claim 184 4. Failure to prosecute to judgment .scire faciassur claim . . 185 5. A function of rules in municipal claims 185 6. Importance of observing statutory requirements of lien laws 186 XIV. Rules to set aside sheriff's sales 188 1. To whom notice must be given 188 2. Practice of courts in such cases . . v iii CONTENTS. PAGE 3. Stay of proceedings 139 4. Rule to be applied for promptly 139 5. Grounds for rule 140 6. Liability of purchaser at sheriff's sales 141 7. Depositions to be taken 141 XV. Concluding remarks 143 MOTIONS AND RULES AT COMMON LAW. 1. Motions and rules may be defined in a general way as instruments or means of facilitating the progress of a cause or the transaction of the business of litigation, by correcting clerical slips, or amending errors not fatal ; by accommodating the case to changes of circumstances since its commencement; by meeting exigencies unfore- seen or unprovided for; by removing difficulties in the development of the case which stop progress; or by ad- vancing the case in any way towards its final and proper disposition. " A motion is an application to a court by a party or his counsel; and the order made by a court on any mo- tion, when drawn into form, is called a rule. A motion is either for a rule absolute, in the first instance; or, it is only for a rule to show cause; or, as it is frequently called, a rule nisi, which is afterwards discharged or made absolute by the court, on argument. By the gen- eral practice, all motions made by counsel must be put in writing, and delivered to the prothonotary, to be en- tered on the minutes and filed; the time of delivery to be indorsed by the prothonotary. .Motions are of a civil or criminal nature; rules for attachments are the only criminal rules granted which have any relation to a civil suit. On a motion for a rule to show cause, depositions on the adverse side will not be received; when the rule 1 2 MOTIONS AND RULES AT COMMON LAW. applied for is granted, upon proper grounds shown, the adverse party, with his depositions, will he fully heard on the argument. The affidavit of a party is sufficient to lay a ground for a rule to show cause." Troubat & Haley Prac, sec. 14G9, p. 852, (1880). This is a com- prehensive definition and its accuracy is vouched by the practice which has maintained until the present day. The motion is the request for the court's action, the rule is the action which follows exactly as it is asked; in the great majority of instances the motion is granted, always in rules which are either of course or absolute in the first instance, e. (/.: rules for judgment by default or con- fession on warrant of attorney; and rules nisi, that is to say absolute, unless the party to whom the rule is di- rected shall show cause for the discharge of the rule. 2. Action on rules by the court itself without sug- gestion or motion by counsel occasionally takes place in the course of trial of a cause, as, for example, the with- drawal of a juror, a continuance, a commitment for con- tempt of process, the issuing of an attachment, etc., and motions by counsel are sometimes made in open court, but even these are not exempt from the require- ment that they be accompanied by a written memoran- dum of the motion. 3. At common law when pleading was ore tenus, and the nimble-witted counsel shifted his ground from point to point before the court as freely as a dexterous swords- man in the ordeal of battle; when a special demurrer was still as fatal as the thrust of a rapier, and issues either of law or fact were single and simple, the office of rules was extremely narrow and unimportant. If emergencies arose in the case too great to be met and settled off-hand, resort was had to the audita querela, the writ of error coram vobis, the scire facias, and other MOTIONS AND RULES AT COMMON LAW. 3 supplementary writs, and finally to the bill in equity. In modern practice the audita querela and error coram vobis have almost disappeared, and for these, as well as for other remedies, we have substituted tin- shorter, less formal, and more convenient process of rules. This is the tendency of modern practice in all common-law countries, but in Pennsylvania the scope and usefulness of rules have been especially enlarged by the absence for so long; a time of a court of chancery, and the consequent development of equitable principles and equitable relief under the forms of the common law. In Pennsylvania, therefore, it may be said without too rash a generaliza- tion, that the object and office ofaruleare to meet any emergency and remove any difficulty which is nol fatal but which stands in the way of the regular and speedy progress of a cause. 4. The scope of rules, however, is not without well- defined limits. In general, it may be said, first, that a rule will not be granted to any one except a party or privy, or one having; some legal interest or standing in a pending proceeding (see Buck V. Boland, 1 W. X. C. 6 (D. C. 1874) ; Silk Co. v. Disston, 7 W. X. < \ 63 (C. P. 2, 1879) ; and cases passim of rules by terre-tenant, etc., to intervene pro interesse smo), and, secondly, that before a court can grant or enforce a rule against any party it must have acquired jurisdiction over him by some regular and recognized legal process. The party must be in court within the contemplation of the law, either actually, as party, witness or juror (or even spectator for purposes of enforcement of order by punishment for contempt, etc.), or constructively, as an officer of the court, including attorneys, inferior magistrates, etc In other words, a rule is not properly original process in any case, hut is auxiliary, and for the facilitating of jurisdiction already acquired. J. MOTIONS AND RULES AT COMMON LAW. 5. This limit to the proper function of rules requires special attention at the present time, from an apparently growing tendency to enlarge their operation in certain classes of cases, such as the addition of supplementary parties, e. g., partners, husband, etc., in actions previ- ously pending. This tendency arises undoubtedly from the failure sometimes to distinguish accurately between the power of amendment and the acquisition of jurisdic- tion over the parties put upon record by the amendment. Thus in Leonard v. Parker, 72 Pa. 236 (1872), the court below had, after the return of the writ, added the name of Parker as a defendant without notice to him. This was an unquestionable exercise of the power of amend- ment, and as such was approved by the Supreme Court ; but an unfortunate expression by the late Chief Justice Thompson in delivering the opinion of the court, that " the party must be brought into court by an alias sum- mons, or perhaps by a rule to appear and plead," seems to give support to the notion that a rule would in such a case have been sufficient to bring the person within the jurisdiction of the court, And following this sup- posed intimation of Leonard v. Parker, the court in Mc- minn v. Johnson, 1 W. N. C. 312 (C. P. 1, 1876), is re- ported as if it had treated a sworn service of a rule upon a new party as equivalent to a summons, though the report is not entirely clear as to whether the court meant to do anything more than add the name of the new defendant to the record, a right that is entirely be- yond question. This cannot be done in a suit commenced by capias: Britton v. Hehlop, 9 W. N. C. 510 (C. P. 3, 1875). The cases of Dunn v. Duncan, 2 W. N. C. 81 (C. P. 3, 1875), and Ward v. Whitney, 7 W. N. C. 95 (C. P. 1, 1875), stand upon a somewhat different footing, as in them the court had jurisdiction in rem, by foreign at- tachment, and by levy under execution. MOTIONS AND RULES AT COMMON I.UV The true line of distinction and the proper practice is indicated by the Supreme Court in Dusenberry v. Brad- ley, 6 W. N. 413, (S. C. L879) where ii is said by Ster- rett, J. : " It was quite proper for the court to allow the amendment, and make Murphy a party defendant in the suit. If Murphy had been in court, or if a writ had been issued and returned non est inventus" {nihil habet) " as to him, the defence set up would have been fully met by the amendment; but he never had a day in court," etc. See also Schweinberg v. Paul Lodge, 7 \Y. \. is (C. P. 2, 1879). Brittin v. Shloss, 9 W. X. C. 510 (C. P. 2, 1880) ; Hirsch v. Kohn, 1(1 \Y. X. C. 237 (C. P. 2, 1881; and Sheba Lodge v. Berry, 17 \Y. X. C. l , l , : , » (C. P. 1, 1885). But see Bussenger V, Wernwag,8 I>. R. 263 (C. P. 1, 1899). 6. The ease with which an adjudication of the rights of parties either interlocutory or final can he had by a rule tempts practitioners now and then to ask too much : in Evans v. Main//, 17 W. X. C. 377 < S. C. 1886), the court was asked to enter an order on the sheriff to de- liver a deed, after acknowledgment in court and thereby constructive delivery to the vendee, for cancellation. The rights of the vendee could not he jeopardized in so summary a way as he was not a party to the cause — and this even though he were plaintiff in execution — and the rule was discharged. Plaintiff's remedy of course was in ejectment. Maslin v. Oerault, 19 Pa. 1-1 (1852), is another example of an abortive effort to make a rule do duty of another act ion and doubtless to save the costs of a discontinuance: see also Fischer v. /'. />'. A'. Co., '_' Pa. C. C. 245 (1896). 7. Courts have no power t<> extend the time within which an affidavit of defence must lie tiled under the pin cedure act of L887; hut the same reasons for doing BO can 6 MOTIONS AND RULES AT COMMON LAW. be successfully set forth in a petition for a rule to show cause why a judgment for default of such should not be opened. There are cases where by statute a rule may be used with the effect of original process as c. g., proceedings in an interpleader under the Act of May 11, 1836: Laughlin v. McCormick, 2 W. N. C. 352 (C. P. 2, 1876) ; rule for an issue in sheriff's interpleader, Act May 26, 1895, P. L. 95. See post, page 88, Rules provided for by statute. But these cases are few in number and depend upon positive statute, so that they are exceptions only in appearance, and fall strictly within the general principle asserted, that jurisdiction must be acquired over a party in the first instance by some regular and authorized legal process. MOTIONS AND RULES AT COMMON LAW. II. Motions. The following motions are made in open courl in hum 1 or at the time of trial : 1. To admit to membership in the Bar. 2. For the appointment of a guardian u granl the motion only that an appeal can be taken i.' 1 See Rules C. C. P. Philadelphia, Rule '.'".. 8 MOTIONS AND RULES AT COMMON LAW. 10. For judgment non obsianto verdicto.* Or in arrest of judgment. Some motions are made to the court through the clerk by filling them with him. 11. To appoint a master in an application for a charter. 12. To appoint an auditor of a trustee committee in lunacy, etc., account. 13. To appoint a master in partition. 14. To appoint a master in divorce. 2 To allow the court to enter judgment n. o. v. the record must show the question of law clearly stated and properly- reserved and the facts upon which it is based must either be admitted of record or found by the jury. Henry v. Heil- man, 114 Pa. 449 (1886) ; Currier v. Bilger, 12 Pa. C. C. 348 (Clearfield, 1892). For a complete and the latest discussion of the subject see Casey v. Penna. Asphalt Co., 198 Pa. 348, and 490 (1901). It is customary to couple this motion for one for a new trial. Gordon v. Norton, 186 Pa. 168 (1898). MOTIONS AND RULES AT COMMON LAW. III. Rules may be either peremptory, i. e., absolute in the first instance, or they may be to show cause, or in the language of the English 1 ks, rules nisi. The first class includes only those that are to compel the performance of a fixed and indisputable duty, made imperative by statute, by general rule of court, or by the settled course of legal procedure. They arc not numerous, and the chief examples to be met with are rules on the sheriff to return a writ (when the return day has passed) or to pay into court the proceeds of the sale of real estate, rules on counsel to file his warrant of attorney, rules to declare, plead, etc., rules for bill of particulars, and rules to take depositions within the times limited by the rules of court. These rules, which are absolute in the first instance, are entered in the prothonotary's office on motion "f counsel, and do not come before the court at all. unless brought up specially in connection with subsequent pro- ceedings. The second class, to wit, rules to show cause, is, as already said, by far the most numerous and important, and it is to these that our attention is principally i" be directed. As to the former; by rule 23, section 1, of the Rules of the Courts of Common Pleas of Philadelphia county, the prothonotary is authorized to entertain motions for and enter judgments " for default of any kind," and directs him to assess damages in all cases in which the " amount 10 MOTIONS AND RULES AT COMMON LAW. thereof is set forth with certainty in the statement of claim filed" (see note to this rule, page 109, Rules of Courts of Common Pleas). The following are the most common under this rule of court : 15. For judgment of non pros. z 16. For judgment by warrant of attorney. Carter v. Shoener, 5 Pa. C. C. 186, (C. P. 4, 1888). 17. For judgment against garnishees for failure to answer interrogatories. Bank v. Lyon, 8 D. R. 675, (C. P. 1, 1899). IS. For rule to take depositions. 19. For judgment for want of a plea. 4 , 5 3 The twelve months are to be computed from the date of serv- ice of the writ: Ashton v. Bell 2 Pa. C. C. 483 (C. P. 3, 1886). 4 This must be accompanied by an affidavit of service of copies of statement and rule to plead: Kuhnle v. Moran, 1 W. N. C. 19 (D. C. Phila. 1874) ; Edwards v. Adams, 16 W. N. C. 242 (C. P. 3, 1885); Honeywell v. Tonery, 5 Kulp, 360 (Luzerne 1889). 5 This judgment cannot be taken before the return day of the writ: Bloomsburg Banking Co. v. Mowry, 4 Pa. C. C. 247 (Co- lumbia 1887). Nor in a suit for a penalty for no affidavit of de- fence therein is due; Union Glass Co. v. Bank, 10 Pa. C. C. 565 (Lawrence 1890). Nor in a suit on a sheriff's official bond; Barnhart v. Seanor, 8 D. E. 18 (Westmoreland) 1898. Nor in an appeal from a magistrate's court as the act of May 25, 1887. P. L. 271, does not provide for it; Locker v. Sensenig, 9 D. R. 704 (Lane. 1900). In Taylor v. Nyce, 3 W. N. C. 433 (C. P. 4, 1877), a paper MOTIONS AND RULES AT COMMON LAW. n 20. For want of an affidavit of defend 21. For want of an appearance. 7 22. On sheriff to pay proceeds of sale of peal estate, 23. For bill of particulars in divorce under Act May 25, 1878, P. L. 156. 21. For judgment for defendant in default of scin facias sur mechanic's lien. Under Act June I. 1901, P. L. 434, Sec. 7, or municipal claim Act June 4, 1901, P. L. 3(h, Sec 10. 25. To assess damages sur judgment. 8 The following rules which are of course, and issue on was filed prior to the motion, which was plainly for tin' purpose of preventing judgment for default, the court inspected tin' paper and determined it was irrelevant and frivolous and entered judgment in default. But it would seem this was at variance with the practice as the proper procedure would he for plaintiff to take a rule for judgment for want of a sufficient affidavit of defence. ,; May still he had notwithstanding act of May 25, 1887, 1'. L 271: Humphrey v. Smith, 4 Pa. C. C. Hi!' I NTo. L, 188 7 Judgment cannot he entered if an affidavit of defence has "been filed; Philadelphia v. Hopple, 2 Pa. C. C. 543 (C. P. :•>. L886); Conic,/ v. Zweighaft, 7 D. R. 87, (C. 1'. 3, L898). tfor if defendant has constructively appeared by taking some steps in process: Gallager v. Glascow, \:\ W. N. ('. 194 (C. I'. -'. 1883), or unless he lias been actually Berved with copy of state- ment ; Hafleigh v. Winpenny, 9 W. N". C. 138 (C. I'. L, I 8 The prothonotary has no authority to assess damages except in cases specified by act of assembly or rule of court : Lewis v. Bonnnl, L2 Pa. I '. C. 366 (hark. L892). 12 MOTIONS AND RULES AT COMMON LAW. motion of counsel, filed in the prothonotary's office are of the most frequent occurrence in our practice. 1. Rule on the sheriff to return a writ. 2. Rule on the sheriff to pay into court the proceeds of sale of real estate. 3. Rule to show cause why sheriff's sale should not be set aside when filed by an exceptant to a special return under Rule of Court 36 § 5. 4. Sheriff's rule for interpleader. 9 5. Rule to show cause why w r rit should not be quashed. (For matter appearing on the record.) 6. Rule to show cause wiiy service should not be set aside. (For matter appearing on the record.) McCann v. Ins. Co. 10 D. R. 560 (Lack. 1901). 7. Rule to show cause why sheriff's return to writ should not be struck off. 8. Rule to show cause why mechanic's lien or munici- pal claim should not be struck off for irregularity appearing on the face of the record. 10 9 Will be made absolute if entered in good faith ; no affidavit is necessary in support of the rule — But a contest of the rule must be by sworn answer; Waterman v. Lang don, 15 Phila. 211 (Phila. 1882). 10 Bank v. Rvsh, 2 W. N". C. 186 (C. P. 4, 1875), the court is reported as saying that " this is by no means a rule of course/' and as discharging the rule because it bad not been allowed. The practice to-day does not require an allocatur under such circumstances. MOTIONS AND RULES AT COMMON LAW. iq 9. Rule to show cause why appeal should not be Btruck off. 10. Rule to file affidavit of amount claimed under a mechanic's lieu. (Under act of 4 June, L901 P L. 431.) 11. Rule to show cause why a scire facias should not be issued in a mechanic's or municipal claim. (Under acts of 4 June, 1901, P. L. 367, 431. | 12. Rule to show cause of action where suit commenced by capias or attachment. 13. Rule to show cause why defendant should not he dis- charged on common bail. 14. Rule to show cause why attachment should not he dissolved. 15. Rule to show cause why hail should not he reduced. From a subsequent report of what seems to he tin 1 sain.' case, Rush v. Bank, 2 W. X. 263 ( ( '. P. 1. L875), lj -appears that the rule was not founded <>n the record as ii stood, alone, but on grounds of the contract, as shown by depositions. As applicable to the case in hand, therefore, the language "!' the court was undoubtedly accurate. Whenever the relief asked is founded on extrinsic facts t<> he shown in the first instance by affidavit and subsequently by depositions, the rule i- qo! of course, but must be allowed. But tin 1 expressions of the court must not be applied to cases where the rule to strike oil" the lien is founded on the facts as they already appear of record. There are certain objections to the regularity of a mechanic's lien which can only he made by demurrer or motion to strike "if (see Shields v. Garrett, 4 W. N. I 10, I '. ( < '. P. I. 1871 | : Humphries \. Ad- dicks, Id. 88 (C. P. 1. is"), and cases there cited, and the judgment of the court thereon is matter of righl of which a part \ -cannot be deprived by the refusal of an allocatur \<> In- rule. 14 MOTIONS AND RULES AT COMMON LAW. 16. Rule to justify security. 11 17. Rule to show cause why security should not be struck off. (For matter appearing on the record, as in Showaker v. Kelly, 2 W. N. 95 C. P. 2, 1875) . 18. Rule on behalf of counsel to show cause why he should not withdraw his appearance. 19. Rule on counsel to file his warrant of attorney. 12 20. Rules to declare, to plead, to reply, etc., within the time limited by the rules of the court. 11 This was a rule of course under the common-law practice when security was taken by the prothonotary or the sheriff. In the present practice in this county under the act of 10th April, 1873 (P. L. 776), requiring bonds of indemnity to the sheriff to be justified before and approved by one of the judges in the first instance, and under the rule of court requiring an affidavit by the surety (rule adopted October 2d, 1875, 32 Legal Int. 362, and amended form of affidavit, 31 Legal Int. 216), it is probable that the practice will be changed in these cases, and an allocatur be required for a rule which practically compels the surety to justify a second time. Such a rule, however, will always be allowed upon any ground shown to suspect that the security is not real and ample for the purpose required, and especially in those cases where it was approved without notice to the other side. (See amendment to Rule 10, Sec. 3.) 12 In City v. Strawbridge, 4 W. N. C. 215 (C. P. 4, 1877, coun- sel proceeded with unusual caution by a motion for a rule, and the court is reported as deciding the case, after consideration, upon the motion. No question, however, seems to have been raised as to the method of proceeding. By the act of 14th April, 1834, sect. 71, the attorney shall, if required, file his warrant, etc., and by the established construction of that act it is matter of right if applied for in time (see Campbell v. Galbreath, 5 Watts, 426; Merrier v. Merrier, 2 Dall. 142). No preliminary motion is required, and it is a rule absolute in the first instance and stays proceedings. Reese v. The Church, 1 W. K C. 416 (C. P. MOTIONS AND RULES AT COMMON LAW. 21. Rule to show cause why rule to declare, to plead etc., should inn be struck off as improvidently entered. '2-2. Rule to furnish a bill of particulars. 23. Rule to show cause why a more specific bill of partic- ulars should not be furnished. 24. Rule to show cause why plaintiff should no1 be al- lowed to amend his bill of particulars. 25. Rule to show cause why nonsuit should not be granted, or the common counts struck out, for failure to furnish a bill (or a more specific bill i of particulars. 2G. Rule on garnishee to answer. 27. Rule on garnishee to show cause why he should not make a more specific answer. 28. Rule to show cause why narr, pleas (or pleadings generally), should not be struck off. 29. Rule to show cause why plea of freehold should not be struck off. 4, 1875). There docs not seem to be any case in which the right has been at all in question, the contest always being on the sufficiency of the warrant filed in obedience to the rule. See Miss. R. R. Co. v. Southern /,'. R. Association, 8 Phila. 101 ; Citizens' Bank v. Keim, 1 W. N. C. 863 (C. P. 1, 1875). Hess v. Hess, 1 W. N. C. 194 (C. P. 1, L874). 16 MOTIONS AND RULES AT COMMON LAW. 30. Rule to justify plea of freehold. 31. Rules for a commission, or to take depositions, at the times and in the modes prescribed by the rules of court. 13 32. Rule to show cause why judgment should not be struck off. 33. Rule to show cause why judgment should not be en- tered for want of sufficient affidavit of defence. 34. Rule to show cause why judgment should not be en- tered for amount admitted in the affidavit of de- fence. 35. Rule on garnishee to show cause why judgment should not be entered for the amount admitted in his answers. 36. Rule on garnishee to show cause why judgment should not be entered for default, for not making more specific answer. 37. Rules in divorce, to answer, for divorce, etc. 38. Rule for a new trial. 39. Rule to take off nonsuit. It may be well to note that while some of these rules, such as the rule on counsel to file his warrant of at- 13 Rules giving shorter notice to the other side, or in any way varying the requirements of the rules of court, must be specially allowed. McGuigan v. Swayne, 1 W. X. C. 41 (D. C. 1874). MOTIONS AND RULES AT COMMON LAW. 17 torney (Reese v. The Church, 1 \Y. N. C. 416, C. P., 1875) rules for bill of particulars, etc., operate in the nature of a stay of proceedings pending the rule, yel in many of them the stay is not of course, and it' importanl should be applied for specially and allowed by the court. This class of rules include all these which are peremp- tory in the first instance and also many of those to show cause. 2 18 MOTIONS AND RULES AT COMMON LAW. IV. Rules may again, regarding them from another point of view, be divided into two classes, namely, those which are entered of course on the order of an attorney, and those which require to be allowed by the court or judge. This division of rules is one of considerable practical importance, and, speaking from recollection of my own experience at the bar, is the cause of some embarrass- ment to young practitioners. Yet I am not aware that any effort has been made in any of the books to classify rules on this basis, or to determine any principle upon which such a classification might be made. In the absence, therefore, of any assistance from the labors of my predecessors on this point, it is with some hesitation that I venture to suggest as a basis for such a classification the very general principle, that where any duty is made imperative on the other party by statute, or the rules of court, or the' settled course of legal procedure, or where, upon the status of the pro- ceedings as shown by the record, the party claims to be entitled of right to the relief sought, in all such cases a rule may be entered of course by the attorney without an allocatur. Such a generalization is perhaps too vague to be of very much practical usefulness to a young lawyer with the necessity of knowing at once for a case in hand whether he must get his rule allowed or not; but it is made as a contribution towards the ascertainment of a satisfactory principle, and in the hope that it may be at least a first step in the right direction. LAW DEPARTMENT. MOTIONS AND RULES AT COMMON LAW. 19 V. 1. Coming now to the other and far larger class of rules which require an allocatur, the first observation that occurs is, that there must be ground laid by pet ition setting forth the facts upon which the relief is sought, and must be sustained by affidavit of the petitioner of the truth of the facts alleged. About the time the address before the Law Academy, May 1879, was delivered, a practice had obtained among certain lawyers who held commissions as notaries public of attesting affidavits of their clients in litigation, which called forth the comment on page 20 of "Motions and Rules at Common Law,*' and probably had not a little to do with the Courl of Common Pleas adopting Rule 2, which forbids such practice and makes the nullity of an affidavit so taken the penalty for the breach of the rule. 2. The petition for the allowance of the rule should be a concise statement of the facts upon which the ;i]> plication is based, avoiding argument. It is not neces- sary to go into all the facts with the same detail as would be required in a deposition, but it is safer (<> err on the side of fulness rather than risk the omission of a fact that may be material. However, except affidavits «»f cause of action, a petition for a rule may he amended. 20 MOTIONS AND RULES AT COMMON LAW. If any part of the pleadings is involved a copy of the particular instrument should be appended. Where the rule applied for is to show cause why a judgment en- tered for default of an affidavit of defence should not be opened and defendant permitted to file his affidavit, a copy of it must be made part of the petition and at the return of the rule the court will take into consideration the sufficiency of the affidavit in discharging or making absolute the rule. Hunter v. Forsyth, 205 Pa. 466, (1903). When the application for the rule is made under the provision of a statute: e. g., to enter security in lieu of a municipal claim under sec. 15 Act June 4, 1901, P. L. 367, the petition must conform with the words of the act, or rather, unless the facts relied on in support of the rule be in exact conformity with the conditions im- posed by the statute, the court does not acquire juris- diction to entertain the rule and the same, if improvid- ently granted, will be struck off on application by an- other rule to that end. 3. The decree as desired by the petition should be added to the petition that the court may be saved the trouble of drawing it, and if a stay of proceedings is de- sired this should be incorporated in the rule. A stay of proceedings is always the subject of allocatur and even if it be a rule of course, where a stay is needed it must be allowed else it is of none effect, and its unauthorized addition may imperil the rule itself. Having properly prepared the petition, had it sworn to, the next step is to present it to a judge of the court at chambers, for only in cases of extreme necessity should counsel interrupt the course of a Jury trial by handing up his petition. But the best method is to leave the paper with the MOTIONS AND RULES AT COMMON LAW. 2 j Clerk of the Court to hand to one of the judges for bis action. 4. The rule having been granted the original is filed with court clerk who puts it down on the Current .Mo- tion List of the day to which the rule is made return- able, being the next ensuing Monday if the date of entry is not less than forty-eighl hours prior, sometimes the Court will fix a later day for the return if the cir- cumstances are deemed to justify it. It is better to ap- ply for the rule, where an allocatur is necessary, or to enter it where it is of course, as early in the week pre- ceding its return as possible and if feasible gather the material for the paper 1 k before the rule is entered, so that the argument may be had when the case is called. Having entered your rule, if of course, or when ii is allowed, if not, send a copy together with the reason for entering it to the counsel of record on the opposite side. In the case of an allocatur a copy of the petition upon which the rule is granted should be given him in order that an answer may be tiled when it is necessary to deny the facts of the petition. 14 5. While the etiquette of practice and the sanction of custom demand that opposing counsel shall have notice of the return day of a rule. i. e. } when the quest ion raised is to be argued — to show cause, it is not necessary to notify him of intention to move for judgment for default for the state of the record demonstrates whether the 14 Where a rule ig taken in open court it ie unnecessary to i:\\<' notice 'if it- return to opposing counsel : Uillaker v. Kinzua Pad Co., L3 D. R. 135 (Warren L903), 22 MOTIONS AND RULES AT COMMON LAW. motion can prevail or not. But even though notice is not by law required, in certain cases, where there is merit in the position of the side of the cause against which the rule is taken, it is not a work of supereroga- tion and may be the saving of much trouble, to warn opponent counsel of the intention to act. It is not al- ways wise to take advantage of an opportunity to take judgment for default, such judgments are readily opened and the process entails more trouble upon an eager litigant than if he had reminded his adversary of his de- linquency and permitted the case to be measured by its merits and determined thereon. The courts of to-day insist on the administration of substantial justice, and parties can no longer be deprived of their " just rights " by the relentless application of technicalities, the delight of the sharp practitioner and the revel of the petti- fogger. G. As has been stated before (ante p. 2), all motions for rules as well as the rules themselves must be in writing for the obvious purpose of insuring accurate docketing and preservation for future reference or use as parts of the record. 7. Having prepared the rule and reason, therefor, or in the case of an allocatur, had it allowed, leave the original in the Prothonotary's Office in the receptacle placed for the purpose by the clerks of the five courts, or else hand it to the appropriate clerk and serve a copy upon op- posing counsel where service of notice of the rule is re- quired, this is a sufficient compliance with the requisi- tion except in case of a rule to show cause why an at- tachment of the person should not issue: this being a proceeding looking to the punishment of the party to whom the rule is directed, even though he has ap- MOTIONS AND RULES AT COMMON LAW. 33 peared by counsel, the notice must be served on him personally. 8. While as a general rule, application for an allo- catur is made cj- parte, yet the court may direct no- tice to be given to the other party of an intent ion to apply. 9. Rules peremptory or absolute in the first instance, as already said, do not come before the court at all, but are entered by the prothonotary, ami, it' not obeyed, are enforced according to their nature, by a second order of counsel, as to enter nonsuit for want of a state- ment, or judgment for want of a plea ; or by a subsequent rule or proceeding founded upon the first, as a rule for an attachment for not returning a writ, etc. 10. Rules to show cause, on the other hand, are placed by the court clerks on the appropriate lists, and upon the return day are called by the court for the hearing. The regular return day is the .Monday following the granting of the rule, and no other return day is ever allowed except in special cases and for very urgent rea- sons. It is, however, within the discretion of the court to fix an earlier day if the urgency of the case requires it; and there are a few exceptional cases where statutes or long-settled practice have required a longer time for the running of the rule. Thus the rule to produce books or papers at the trial under the act of 27th February, 1798, is by long-settled practice a thirty day rule. These, however, are rare and exceptional cases, ami in a general consideration of the subject may be safely disregarded. 11. Rule 2b, sec. l, (Rules Courts of Common Pleas, Phila., p. 117), provides that ** Motions and Rules shall 24 MOTIONS AND EULES AT COMMON LAW. be entered on the Current Motion List, which shall be called on the regular motion-day in each week. Any Rule on the Current List which the counsel for either party shall insist upon having heard, shall be disposed of, unless cause be shown to the contrary." Monday has been for several years the day on which the Court in Banc convenes to hear the Current Motion list, and once a month, the third or fourth week of the month, is devoted to calling cases undisposed of on prior Current Motion lists, the General or Miscellaneous Ar- gument and other lists. By an amendment of section 4, Rule 26 of Courts of Common Pleas of Philadelphia (page 118) it is provided that " The Current Motion list shall be called but twice, and all other lists three times. On the third calling all cases not answered to shall be finally disposed of: that is to say, Rules for New Trials, to take off nonsuits. Rules for New Trials and Judgments on points reserved shall be considered as submitted without argument, and decided upon the report of the judge before whom the case was tried. Rules for Judgment and all other Rules Nisi shall be discharged for want of prosecution." The Practice now followed in the five Courts of Com- mon Pleas of this County in respect to the Current Mo- tion list, is as follows: Court Number One: If the case is unanswered to by either party at the time it first appears on the Cur- rent Motion list it passes to the next " Undisposed of Cases on prior Current Motion lists." If at its first appearance it is continued, it will be put on the next ensuing Current Motion list. Court Number Two: In the first alternative the case awaits the ordering on any succeeding Current Mo- MOTIONS AND RULES AT COMMON LAW, tion list, by counsel of which the opposing counsel must have notice. In the second alternative, same as Conri Number One. Court Number Three: In the first alternative it is struck from the list but may be ordered again on any subsequent Current Motion list. In the second: same as Court Number One. Court Number Four: In the first alternative, it goes forthwith to the next " General Motion list," pecul- iar to this Court where if not answered to, it is dis- charged on third call. In the second : same as Number One. Court Number Five: In the first alternative same as Number Two. In the second : same as Number One. 12. Under the authority of Court Rule No. 26, (supra), when a case is called on the Currenl Motion list of the day it is returnable, it is the right of either party to insist on the argument taking place, bul the Courts are very lenient as to the weighl of the " cause shown to the contrary" which moves the Courl to con- tinue the matter. The Court will not lake up the case ex parte at the first call but if the absentee persists in his absence at the second call, on demand of the party present the Court will hear the case. It is question- able whether it is good policy to insist mi an ex parte argument, first of all the court anxious to d<> just ice will in a measure protect as far as is possible, tin' suitor un- represented, and in close cases this may develop ;i COUrS€ of reasoning in the mind of the Court, which may result in the prevailing of the absent litigant. Bul besides this, even if counsel who presses for argument, IS 8UC« 26 MOTIONS AND RULES AT COMMON LAW. eessful, he will be apt to have to defend against an at- tempt to open the judgment, which entails delay and trouble. Where depositions are required a continuance will be granted pending their being taken, and, under the present practice this continuance may be had until both sides have concluded their testimony when the cases can be again put on the list. 13. The rule being on its appropriate list and ready for hearing, it is the duty of the party who is entitled to begin (as to which see infra, p. 32) to furnish each of the judges with a paper book. 15 This rule is imperative 15 The origin of the term paper book not being perhaps gener- ally understood, and being not unfrequently thought to be (like Pamphlet Laws) a peculiar Pennsylvania idiom, it may be interesting to note it here, especially as it supplies an illustration of the indebtedness of the junior bar to Lord Mansfield. By the ancient practice of the English courts on motion days the court began by calling upon the senior barrister present to move, and after he had been heard then the next in seniority, and so on through the bar as far as the day's sitting would permit. This custom it may be observed continued down to our own day in the courts of our conservative neighbor, New Jersey. The next day the same process was repeated, starting with the senior again, and thus it frequently happened that several days or even weeks would elapse before some of the juniors, no matter how urgent their cases, could get a chance to be heard. Lord Mansfield ob- serving the hardship, changed the practice by beginning the call on the next day with the barrister whose turn it would have beeD to move next at the adjournment, and thus going through the en- tire bar before returning to the senior. He also ordered certain motions requiring argument to be put down on a paper or as we should call it now, a list, which the court would go through before entering on the general call of the bar. The days of hear- ing these matters came to be known as paper days, and the briefs required to be furnished to the judges in analogy to the demurrer and issue books of the previous practice, were called paper books. 1 Chitty's Archbold, 95"; Tidd, 507; Campbell's Lives of the Chief Justices of England, vol. iii, ch. 34. It is well known that some of the most eminent of our Pennsylvania lawyers were MOTIONS AND RULES AT COMMON LAW - > and has no exceptions. It is occasionally disregarded in merely formal matters qoI requiring argument, but it is liable to be enforced at any time without regard to the nature of the ease or the action of the court in other eases of a similar kind. The office of a paper hook is to inform the court of the facts upon which action is asked, but it has also a subordinate office of recalling a case after it has 1 q argued and comes up in consultation of the judges for decision. In the ordinary routine of the Monday lists eases are decided at once on the hearing, hut even in the most frequent and common rules counsel may un- expectedly differ about the facts, doubts may arise upoo the law, or difficulties he suggested which will induce the court to hold the case over for consideration, and in these instances a rather full paper hook is absolutely necessary. It is never therefore safe in any case to come to a hearing without a paper hook. The rule of court requires that it shall contain "a full and distinct statement of all facts conducive to a ready apprehension of the matter to be argued." In addition to this it is generally useful where the case requires argument at all to have a brief memorandum of the points upon which reliance is to be made. Many rules, especially to open judgment or set aside execution, involve a considerable amount of depositions. It is not of course desirable that the paper hooks should he incumbered with an ex« tensive resume of all the testimony, hut a short skeleton of the facts claimed to he proved is always a desirable, and frequently an indispensable guide to the peal points students in the Middle Temple during Lord Mansfield's time (anions them Judges McKean and Xeates, Edward Tilghman Jared Ingersoll, and William Rawle), and ii i- probable that they l>rou'vy brief 'history of the case:" this by a concise statement of the "question for deter- mination " and this by the argument. The argument should be a short presentation <»f the authorities upon which counsel relies: it is net wise to cite cases as supports, merely by title an. I place; select one or two authorities where the facts are in close re- semblance to those of the case at bar an. I draw the parallel likeness of the cases. Five copies of the paper book should lie prepared, one for each of the judges, one for opposing counsel an. I one to be kept for counsel in support of the pule. The counsel in opposition need not prepare so elabo rate a "book;" his may be confined to a statement of facts, as his side views them, ami an argument of simihr proportions to that of his antagonist. Copies of papers should be "single spaced " if I \ p. written and original matter, history of the case ;ii"'i 30 MOTIONS AND RULES AT COMMON LAW. ment, etc., "double spaced." The "backing" of the book should be endorsed as if it were for filing in the record and should be endorsed as " Paper Book of Plain- tiff (or Defendant). Sur Kule to " 15. As already said, rules which rest on the facts ap- pearing on the face of the record, or the admitted writ- ings in the case, do not require any affidavit. All other rules must be founded on affidavit. The affidavit, how- ever, is not admissible as evidence at the hearing. Coxe V. Nichols, 2 Y. 54G ; Hoar v. Mulvey, 1 Binney, 145. 16 The objection made in those cases that the testimony of the parties is not admissible at the hearing is of course no longer tenable, but the ex parte character of affida- vits is still sufficient to exclude them. All rules to show cause include authority to take depositions both in sup- port of and against them (Coulon v. De Lisle, 1 Browne, 256) ; and in general depositions are required. Usually it is the duty of the party obtaining the rule to take dep- ositions in support of it. He must give the opposing counsel forty-eight hours' notice of the time and place, and the latter is entitled to a reasonable time after these depositions are finished to take counter-depositions on his own side, if he desires so to do. Depositions may, however, in any case be dispensed with, in the first instance, by agreement of counsel that affidavits may be read instead, and in special cases the court may entertain an affidavit as a matter of grace, though such a privilege is rarely accorded, and never except for sufficient cause shown. On a rule to open a judgment taken for want of an affidavit of defence, on the ground that the failure to file an affidavit was an oversight of counsel, or some 16 See Pearson's Petition, 13 Lane. Rep. 147. MOTIONS AND RULES AT COMMON LAW. gj accident or mistake not the fault of the defendant him- self, it is now the usual practice to accept an affidavit of the cause of the failure and of the merits of the de- fence relied upon. The failure to file the affidavit in time being satisfactorily accounted for, the rule is treated in the first instance as if it wen- a rale for judg- ment for want of a sufficient affidavit of defence, and if judgment on such a rule would have been refused it is now opened. Brady v. Wisler, 2 A\'. X. C. 82, (C. P. I. 1875). This, however, is subject to the discretion of the court to order depositions, either on the merits «>f the defence or on the cause of the failure to tile the affidai it in time, should the court desire further or more specific information on the case. It is also in the discretion of the court to order deposi- tions on either side at any time, even though counsel have agreed to dispense with them. 16. The rule having been reached upon its appropri- ate list and called for argument, the party who has ob- tained the rule has the burden of proof upon him, and is therefore entitled to begin and conclude. Rule 26, sec. 7. (Rules Court C. P. Phila.) provides than on Motion List ( 'ases but one counsel on each side may be heard, while in those on the argument list two on each side can address the court. Rules to show cause of action and to dissolve attach- ments are said to be exceptions, and it is provided by section 6, rule 26, of the Rules of Court, thai in th< Be cases the party who is to show cause is to begin and con- elude. These rules, however, which formerly made up so large a proportion of the lists as to require :i >| •< motions for new trial and to take off non-suit in I he requirement that they be made and filed with the reasons therefor within four days after the verdict, ami a copy of the reasons furnished to the judge before whom the cause was tried and served on the opposite party within the four days. Many years ago, in the old practice the taking of a bill of exceptions to the admission or rejection of evidence, or to the charge of the judge at the trial, was considered as a waiver of any right to a new trial upon the same point. Because it was thought to be giving the party the unfair advantage of two chances, one before the Court in Banc and one before the Appellate Court. In cases of compulsory nonsuit under the act of L836, a writ of error lies only t<» the action of the Court in Banc in refusing to take off the nonsuit. The reasons of exception, therefore, must be presented to the Court in lid tie, and the practice in other cases of motions for ae* trial is now uniform with this. The errors Of the trial 3 34 MOTIONS AND RULES AT COMMON LAW. are now always included among the reasons for a new trial, and the Supreme Court have more than once inti- mated that where a court consists of more than one judge they are entitled to the opinion of the court in Banc before they should be troubled with a writ of error. 19. Motions for judgment non obstante veredicto, or on points reserved at the trial (under our act of Assem- bly of March 28th, 1835), are usually, and as a matter of caution ought always to be, accompanied by a motion for a new trial, and are placed upon the same list and heard in the same manner. Judgments on points re- served under act of Assembly (in analogy to the English motion for judgment non obstante veredicto on points reserved, in which, however, the reservation is always by consent) originated in the act of March 1st, 1825, in re- lation to the District Court of Philadelphia, and were not extended generally to the other courts of the com- monwealth until 18G3. A certain strictness was long observable in the treatment of them by the Supreme Court, and it sometimes happened that the rule for a new trial saved a case that would otherwise have been lost. Thus where judgment was entered by the District Court for the defendant on a point reserved, and the Supreme Court reversed it, the case was saved to the defendant by the motion for a new trial. Harper v. Keely, 17 Pa. 234 (1851). Moreover, it sometimes hap- pens that in the hurry of a trial it is taken for granted that all the facts are uncontroverted, and therefore may be assumed as the basis of a judgment on the point re- served, while a more careful and deliberate examination upon coming to enter the judgment shows a gap in the admitted facts on the record, or a contest upon some of the evidence. See Central Building Association v. JYit- zell, 13 Phila. 54 ( C. P. 2, 1879) . For these reasons it is always the safer and better practice to join a motion for MOTIONS AND RULES AT COMMON l.Air. a new trial with the motion for judgment on a point reserved. (Sec Standard Co. v. Phcenix Insurana 13 I). R. 77 (Berks, 1902; and Currier \. Bilger, L2 Pa. C. C. 348 (Clearfield, 1892). 20. For analogous reasons, a motion for a rule for now trial is usually joined with every motion in arrest of judgment, and when so joined the two motions go upon the Now Trial Argument List, and are heard to- gether. The motion in arrest of judgment, however, is sometimes made alone, and in such ease it goes upon the General or .Miscellaneous Argument List. Rohrbacker v. Pugh, 10 W. N. C. 275 (C. P. 4, 1881). 21. A second rule, after the discharge of one of the same kind, is not allowed, unless in very exceptional cases, and when applied for, the fact of the discharge of a previous rule of the same kind should always be men- tioned, and the special reasons for asking a second rule set forth. In default of this, the rule will be discharged without consideration of the merits. Mitchi II V. P'u ra . 1 \V. N. C. 156 (D. C. 1875). Where rules have been dis- charged through unavoidable failure of counsel to be present, or where through misunderstanding the court has been erroneously informed that the rule was aban- doned, or where the situation of the parties has so changed as to show on the present state of facts a new and strong prima facie claim to the relief Bought, a second rule is sometimes granted, but only in excep- tional and very char cases. Where counsel find al the hearing that, through some defect which they believe remediable, they cai at pres- ent succeed, they should ask leave of the court to have the rule continued, or to withdraw it. A rule thus with drawn is not a bar to a second rule of the same kind, A rule mav be withdrawn without leave ;ii ;in\ lime 36 MOTIONS AND RULES AT COMMON LAW. before the argument, but after the argument has com- menced the leave of the court must be obtained, as the matter being then sub judice is beyond the control of the parties. Leave to withdraw is rarely refused where there appears to be a good case and there is any fair prospect that the present objection may be obviated; but courts do not favor mere experiments or fishing in- quiries. For example a rule to show cause why a rule to plead should not be withdrawn, Richards v. Johnson, 14 W. N. C. 273 (C. P. 1, 1884). MOTIONS AND RULES AT COMMON LAW. VI. No exhaustive enumeration can be made of the vari- ous rules that may from time to time be required in the course of practice. They must be varied by the skill and ingenuity of counsel to meel the exigencies of new cir- cumstances. But they all bear a certain family like- ness, and have certain forms and features in common. A list of such rules as arc more commonly found in practice collated from the various county court reports to date is now given and arranged as nearly as possible with regard to the subjects in groups. I. Rules relating to process. 1. Rule (on sheriff) to show cause why he should not make return to writ, 17 — execute a ilml. Qak 17 This rule as already mentioned is no! to Bhow cause, bui is peremptory in the first instance since the command of the writ is that the sheriff have it in court with his return on the day named, and he is therefore prima facie in default as appears by the record. If the sheriff fails to comply with the rule n forceable by attachment, bui this is always a matter of i tion, and before granting it the court will hear the sheriff's reasons for not returning the writ, and if they are sufficient will enlarge his time or give other appropriate relief. As the Bheriff, however, is always held to a stricl performance of duty, the grounds which are sufficienl for no! returning a writ are very exceptional. 38 MOTIONS AND RULES AT COMMON LAW. litzin B. & L. A. v. Steiger, 28 Pa. Super. Ct. 33G (1905). 2. Rule to show cause why mandamus to magistrate should not be awarded. Com. ex rel. v. Smith, 3 W. N. C. 95 (C. P. 4, 1876). 3. Rule to show cause why writ should not be quashed. BVdg. Asso. v. Byrne, 6 W. N. C. 253 (C. P. 1, 1878) ; Comth ex rel v. Daily, 3 W. N. C. 133 (C. P. 2, 1876) ; Stein met- v. Wade, Ibid 187 (C. P. 4, 1876) ; In re Apye, Ibid 188 (C. P. 4, 1876) ; Wheelan v. Stedman, 7 W. N. C. 17 (C. P. 4, 1879) ; Murphy v. Sheaf er, 11 D. R. 426 (C. P. Schuyl. 1901). 4. Rule to show cause why service of writ should not be set aside. 18 O'Neill v. Phila. R. T. Co., 14 D. R. 502 (Mont. 1905) ; Yerkes v. Stetson, 211 Pa. 556 (1904). 5. Rule to show cause why writ of Ejectment should not be abated: Erskine v. Adams, 9 D. R. 444 (C. P. West'd., 1901). 6. Rule to show cause why Appeal by Defendant should not be struck off: Hahn ct al v. Quaker City Co., 18 This rule is the only proper remedy where the service of the writ is improper; the preceding rule where the issue of the writ is premature or unwarranted, while an appearance by coun- sel is a waiver of all irregularities in the service of a writ (Eemerrer v. Marl-le, 14 Pa. C. C. 493, (Luzerne, 1894), a defective service is not cured by defendant's entering an appear- ance de bene esse; Elirgood v. Orient Ins. Co., 11 Pa. C. C. GG5 (Lack. 1891). MOTIONS AND RULES AT COMMON LAW 11 D. R. 138 (C. P. 5, 1901 | ; Ray v. Flemn 11 D. R. tils | Venango, L901 I. 7. Rule to show cause why execution and levy Bhould n«t he set aside: Hibberd v. '/'»/■/■//. n I >. K. :,:•! (Del. 11111.")) ; Williams v. Steenwood, 11 1>. R. l'l' (Bradford, 1901). 8. Rule to show cause why amended return of sheriff should not be set aside. Whitman \. Higby, K) D. R. 39 (Crawford, L900). 9. Rule to show cause why service of capias should not be set aside : King v. Embery, .". \\ . X. < \ !i; i < 5. l\ 3, 1878 ). 19 10. Rule to show cause why defendant in a capias should not be discharged on common bail.-" 11. Rule to show cause why capias should not be amended. 21 19 Where the wrong person has 1 >» -• * i i taken : Lioanshy x. Q 2D. R. 220 (C. P. 4. 1892). Or if a married woman be taken on capias this is the proper rule; Hurst v. Smith, 9 W. NT. C. t61 (C. P. l. L880). 20 Formerly the rule t<> show cau t ait ion and t" dig ' defendant on common bail or to dissolve attachmenl wblb of greater frequency than it is to day, but since the abolition of capias for debt and the adoption of Rule X. Bee. I of the present Rules of Courts of Common Pleas of Philadelphia, requiring an affidavit of cause of action to he filed before issuing the capias in libel, slander, etc., it is comparatively little used except in foreign attachment. -' Improper if objeel is to add a uew defendani : Brittin v. Schloss. 9 W. N. C. 510 (C. P. !. 1880). 40 MOTIONS AND RULES AT COMMON LAW. 12. Eule to show cause why capias should not be abated : McQuigan v. McCarthy, 6 W. N. C. 253 (C. P. 2, 1878). 13. Rule to show cause of action and why defendant should not be discharged on common bail : Phila. Coal Co. v. Huntzinger, 6 W. N. C. 300 (C. P. 4, 1878) ; Boyle v. Grady, 1 W. N. C. 313 (C. P. 2, 1875). 14. Rule to show cause why attachment should not be dissolved. 15. Rule to show cause why an appeal should not be vacated: Dwire v. Weber, 1 W. N. C. 64 (O. P. Phila. 1874). 16. Rule to show cause why service of the writ should not be set aside : 22 Lehigh C. & N. Co. v. Lehigh Boom Co., 6 W. N. C. 222 (C. P. 4, 1878) ; City v. 22 There is a difference not always observed as it should be in accurate practice between a rule to set aside the service and a rule to set aside, or, more properly, strike off the return of serv- ice. The latter is the correct form only when the return is in- complete, or inappropriate to the command of the writ, or in some way fails to meet the requirements of the law, as, e. g., where it shows service on the agent of a non-resident without showing that the latter was engaged in business, but was not personally present in the county at the time. Gilbough v. Keller, 3 W. N. C. 78 (C. P. 4. 1876). On the other hand, the return may be perfectly good, and yet the service set aside, as e. g., be- cause made while party was in attendance at court, Torry v. Bast, 3 W. N. C. 63 (C. P. 2, 1876) ; or because the party was fraudulently decoyed into fhe jurisdiction for the purpose of being sued. Hevener v. Heist. 9 Phila. 274 (D. C. 1873). Sloan v. Green, 7 W. K C. 408 (C. P. 4, 1878) ; Wood v. Trust Co., 14 W. N. C. 127 (C. P. 3, 1883). MOTIONS AND RULES AT COMMON LAW. . n Olive Cemetry Co., [bid. 238 (C. P. 3, 1878 . Tarri/ v. Bast, 3 \Y. X. C. 63 (C. P. 2, L876) ; R< v. /'wff. Ibid. L87 (C. P. l. L876) ; Samuel v. .1///. //•on tl- Shri Co., in D. R. i:: (C. P. 1. 1901 l ; Zablockix. D. L. & W. R. B. Co., [bid. 54 (C. P. 3, 1901) ; Moyer v. Place, [3 Pa. C. C. 163 (Schuylk., 1892); Yeakel v. />'/. R. lit (Northampton, 1899) ; Ralston v. ro5tn, [bid. 234 (C. P. 2, Allegh., looo i ; Ferree v. Piera . 10 D. R. 746 (C. P. 2, Allegh., 1901 i ; but see WhiU v. £«»/>•, 12 Pa. C. C. 254 (C. P. 3, 1893) : and Ty- rone Bank v. Doty, [bid. 287 i Blair, L892) : also Yerkes v. Stetson, 211 Pa. 556 ( 1004 i. 17. Rule to show why tcrrc-t< nant should not be allowed to intervene: -"• Rittenhouse v. i'< tt< rs, 9 W. N. « '. 221: (C. P. 2, 1880). 18. Pule to show cause why appearance by terre-tenant should not be struck off. 24 19. Rule to show cause why sheriffs return to writ should not be struck off. (See preceding Rule 16 and foot note thereto). 20. Rule to show cause why sheriff should not be allowed 23 This rule must be invariably allowed and will not operate as a stay unless it be especially bo provided. A -ta\ of pi ings may be made part of a rule of course, but even then t ! i must be allowed by the court ; it ie safer practice to ask for ;i stay in almost all cases. Take for example where a rule is tak< n to quash a scire facias, if the record Bhowa the plaintiff entitled to judgment, even though the rule is pending, judgment can be entered on the writ. 24 A voluntary appearance by a terre-tenant in a pro a scire facias sur mortgage will be .-truck off; Jlohon \. Wto* 8ter,9W. X. C. 806 (C. P. 2, 1880). 42 MOTIONS AND RULES AT COMMON LAW. to amend his return: 25 Graham v. Furey. 6 W. N. C. 56 (C. P. 4, 1878) ; Lanahan v. Collins, Ibid. 253 (C, P. 1, 1878). 21. Rule to show cause why sheriff should not be allowed to sell goods attached — as perishable or change- aide: Martin v. Malseed, 1 W. N. C. 82 (D. C. 1874). 22. Rule to show cause why actions should not be con- solidated : Stanley v. Garrigues, 1 W. N. C. 28 (D. C. 1874) ; Bank v. Hunsicker, 2 W. N. C. 381 : (C. P. 1, 1876). 23. Rule to show cause why an appeal from assessment of damages by Viewers in Road case should not be struck off: Freeze v. Columbia Co., 6 W. N. C. 145 (Columbia, 1878). 24. Rule to show cause why defendant should not have leave to enter an appeal from award of arbi- trators in forma pauperis: Wendell v. Simpson, 7 W. N. C. 31 (Montgom., 1879). 25. Rule to show cause why writ of replevin should not be quashed : Cortlandt Wagon Co. v. Landis, 9 D. R. 490 (Lane. 1899). 26. Rule to show cause why exoneretur should not be entered, and fieri facias be set aside: Common- 23 It is bad practice for the sheriff to incorporate the service of a copy of the statement of claim in his return to the summons; Reynolds v. Supreme Conclave, 9 D. E. 622 (C. P. Lane. 1900). But the return does not seem to be invalidated thereby. MOTIONS AND RULES AT COMMON LAW. wealth v. Mecotic et . K. 623 I Dauphin, 1903). ■27. Rule t<> show cause why fieri facias should do! 1"' staved, and judgment l>e satisfied: Bradly \. C. it- .1/. R. A'. Co., 8 D. R. 493 (Clearf. L899). 28. Rule to show cause why writ of fieri ir that he derived title through purchase at a judicial sale of the goods. Becker v. Miller, 1 W. X. C. 83 ( 1>. C. 1874). The best practice is, not only to make tlu- affidavit in hcec verba, but also to set out affirmatively; how the claimant docs derive title. When the affidavit is in this form, it is usually accepted as sufficient without depositions, and the rule is made absolute a- of course. Bank- v. Sharp, 1 W. X. C. G (D. C. 1874). Can-, however, is not always taken to follow the established form, and language i- not unfrequently used which counsel consider equivalent, especi- ally as to the portion supra in italics. This is bad practice and sometimes dangerous. The privilege of giving bond without security is matter of grace, and when, as in this case, there is a long-settled and exact form, any departure from it is apt to he looked at with suspicion. Even where the affidavit is in proper form the court will, if any ground of suspicion or collusion is alleged by the plaintiff, order depositions, and unless claimant's title is prima facie very clear will refuse the privilege. Bailey v. Vehmeier, 6 \V. N. C. 271 (C. P. 3, 1878) ; Landsdorf v. Bach, 1 \V. X. ('. 1 17 (D. C. 1875) ; Hart man v. Schofteld, 1 W. \. ('. 154 (D. C. 1874). Landell v. Eager, 1 I W. X. ('. L73 (C. 1'. 1, 1884) ; Clymcr v. Shaw, 1 D. ft. 164 (C. P. 3, L892). The bond of a foreign corporation or of a non-resident will not be accepted without security; Scatchard v. Landenberger, l" W. X. C. 152 (C. P. 2, 1881 ; (Emerson v. Qrattan, 1 W. V C 574 (C. P. 4, 1878); nor that of a married woman claimant; Barrett v. Gross, 2 W. X. C. 324; (C. I'. I. L876) j Ward v. Whitney, 5 \\\ X. ('. 192 (C. 1'. I. 1878); aor the husband's when he is defendant in the execution (Barrett v. Oross, supra). But a married woman who i< a feme sole trader, stands "ii a dif- ferent footing. See cases cited under X". l">. In City v.Hitner, '.» W. X. C. -Ml (C. I'. '. L881 I, > : I t\ of Philadelphia claimant in interpleader was required to enter bond. A purchaser from an assignee for benefit of creditors of de- fendant is prima facie entitled to give his own bond; Smith v. Stoddart,8W. NT. C. 390 (C. P. 2, 1880). So is a husband when 46 MOTIONS AND RULES AT COMMON LAW. 42. Rule to show cause why claimant in interpleader* shall not be permitted to give bond in double amount of judgment, (where the goods are of greater value) : Ellis v. Jester, 7 D. R. 277 (C. P. 4, 1898). 43. Rule to show cause why married woman, claimant in interpleader, who is a feme sole trader should not give her own bond: Seeger v. Morhinweg, 2 W. N. C. 406 (C. P. 2, 1876) Nice v. Hing, 4 W. N. C. 478 (C. P. 1, 1877) Hahs v. Schmcyer, 6 W. N. C. 271 (C. P. 3, 1878) or why claimant in interpleader should not be allowed to enter security in double the amount of value of goods taken in execution: Com. to use v. Chapman, 6 W. N. C. 15 (C. P. 1, 1878). III. Rules relating to attorneys. 44. Rule on counsel to file his warrant of attorney 27 45. Rule on counsel to show cause why he should not file a sufficient warrant of Attorney. (Citizen's Bank v. Keim, 1 W. N. C. 263 (C. P. 1, 1875). his goods are levied on as wife's; Phillips v. Quigley, 9 W. N. C. 511 (C. P. 2, 1881). And also a consignor whose goods are levied on as property of a commission merchant; Landenberger v. Landeriberger," 16 Phila. 11 (C. P. 1. 1883). But not a tenant in common; Vent v. PasMey, 9 W. N". C. 559 (C. P. 2, 1881). 27 By the act of April 14, 1834 (P. L. 354), sec. 71; the at- torney " shall if required " file his warrant and by the established construction of the act it is a matter of right if applied for in MOTIONS AND RULES AT COMMON LAW. } ; 46. Rule to show cause why paper purporting to be a warrant of Attorney should not be struck from the record. Hess v. Hess, 1 \\ '. N. C. l'.'i (C. P. 4, L875) ; Irrim \. Dowling, 9 W. N. C. 306 (C. P. 2, L880) : Mintzer v. Mintzcr, 11 W. N. C. 4(io (C. P. 2, 1882 i ; D. /.. d W. /.'. K. v. Rfcoad< *, 180 Pa. L57 I 1897). 47. Rule to set aside service of summons on an attorney : Young v. Armstrong, 13 W. N. C. 313 (C. P. 2, 1883). 48. Rule to show cause why counsel should not withdraw his appearance. Wright v. Galloway, 8 W. N. C. 163 (C. P. : ( », 1880). This rule is always at the instance of the attorney himself. 49. Rule to show cause why entry of appearance should not be struck off. 28 Freiburg v. Reliana Co., 1 W. N. C. 193 (C. P. 3, 1875). time (Sheetz v. White, 7 W. X. C. 590, C. P. 1. L879) : Campbell v. Galbreath, 5 Watts. 426; Mercier v. Mercier, 2 I 'all. L42). In C% v. Strawbridge, 1 W. N\ C. 215 (C. P. 4, 1877) ; couns< 1 made a motion for the rule. This was an unnecessary precaut- ion as it is now a rule absolute in the first Instance and Btays pro- ceedings, Reese v. The Church, 1 W. N". C. 416 (C. P. 4, IS although in Campbell v. Galbreath, supra, \\ was not bo held. The contest in none of the reported cases seems to havi otherwise than on the sufficiency of the warrant, Citizens' Bank v. Keim, supra; Hess v. Hess, Ibid, r.'l (C. P. I. L875). M 7^. #. Co. v. Southern B. 11. Assn., s Phila. 10*3 (D. C. L871) jgf one or the other. The act of May 21, 1887, obviates Buch a con- dition. The rub- to strike off is pertinenl where the plea is filed too late, or not accompanied by a required affidavit ; Holxer v. Byrn9, 4 50 MOTIONS AND RULES AT COMMON LAW. N. C. 534 (C. P. 1, 1876) ; Barley v. Albertson, Ibid. 541 (C. P. 4, 1876) ; Moyer v. Loeb, 3 W. N. C. 95 (C. P. 2, 1876) ; Kern v. BocHus, 6 W. N. C. 135 (C. P. 3, 1878) ; Watts v. Ward, Ibid. 206 (C. P. 2, 1878). 60. Rule to show cause why plea should not be with- drawn : Adams v. Kehoe, 1 W. N. C. 232 (C. P. 2, 1875). 61. Rule to show cause why defendant should not be permitted to file an additional plea: Weiler v. Lockheim, 6 W. N. C. 191 (C. P. 1, 1878 ). 32 62. Rule to show cause why statement of claim should not be amended. 33 10 W. N. C. 101 (C. P. 2, 1881). Gallagher v. Thornley, 10 W. N. C. 189 (C. P. 2, 1881). As to pleas in bar the court will only strike off when manifest- ly against the rules of pleading, e. g., special pleas which amount to the general issue, or in violation of the act of May 21, 1881, or if it be frivolous or inappropriate to the action; Holtz v. Thompson, 12 W. X. C. 386 (C. P. 2, 1882). Unless such reason clearly appears the rule will be disregarded and plaintiff put to his demurrer; Beckford v. Ice Co., 7 W. N. C. 16 (C. P. 2, 1879). If on demurrer the court thinks defendant has been intention- ally trifling or delaying the case, it will give final judgment against him. 32 This rule is unusual, for although in theory, the leave of court must be had when defendant desires to file more than one plea, the ordinary practice is to assume the leave and put the plaintiff to his rule to strike off. 33 This rule is unnecessary until affidavit of defence or plea is filed, it is a matter of right for plaintiff to amend his statement conferred by the spirit if not the letter of the act of 1806. MOTIONS AND RULES AT COMMON LAW. M 63. Rule to show cause why defendant should not have leave to file a supplemental affidavit <«f defence. 64. Role to show cause why the record shall do! be amended by correcting errors in names <>f parties, 65. Role on plaintiff to furnish bill <>f particulars, • Furbush v. Phillips, 2 W. N. C. L98 (C. P. 2, 1875) ; Borda v. B. B. Co., 3 W. X. C. 351 (C. P. 4. L877) ; Carr v. Heacock, L2 W. X. C. 305 I C. P. 4. 1882). «'•»'». Rule t«» show cause why plaintiff should not furnish a more specific bill <>f particulars: Hunter v. 34 The power of the court to grant such a rule is given by the Act of April 16, is is. p. |,. 353, and may be i sercised where it is sought to strike out an initial in defendant's name and adding another name but proof of service of the rule on Buch party must be made at the return of the rule; M'Glinn v. Johnson, 1 W. \. C. 312 (('. I'. 1. L875). Also where an iinineorporati is plaintiff the amendment asked is to add the names of the individual members of the association ; Sheba Berry 17 W .X. C. 223: (C P. 1. 1885). Same in case of defendant; Eirsch v. Kohn, 10 W. \. c. v:;; (C. P. -'. L881 ). 'The call for a bill of particulars is strictly no pari of the record, but matter in pais, however, to avoid disagreements be- tween counsel on the subject, the better pra< t i< e is to enter a rule formally: ordinarily the rule is of course absolute in the first instance. This rule operates as a Btay of pr Pfaelzer v. Carho, 2 \V. \". c. 324 (C. P. I. 1876). Prior I Act i be struck off: Klett v. Craig, 1 W. N. C. liMl, (S. C. 1874) ; Yerkes v. fiftmonSj I hid 473 (C. P. 4, 1875). 75. Rule (on behalf of garnishee it<> show cause why rule to answer interrogatories should not be dis- charged: Phila. Textile Co. v. Strause, !» 1>. R. 1 1 (C. P. 4,1899). 76. Rule (on behalf of garnishee) to show cause why garnishee's counsel fee should not be paid: Wan- amaker v. Fit: put rick, 10 1). R. L M .U (C. P. L, 1901). 77. Rule to show cause why garnishee should ool pay into court enough to cover attachment and pay the vest to creditor: Morehouse v. Ins. Co., L6 W. N. C. 34 (C. P. 2, 1885). 7s. Rule (by sheriff) to show cause why interpleader 38 This and the preceding rule should contain the alternative penalty for non-compliance within the usual time when, upon proof of service of the rule, upon failure to comply judgment may be entered on motion in the prothonotary'fl office: Fisher \. Blenn, 2 W. N. C. 172, (C. P. K 1876). 54: MOTIONS AND RULES AT COMMON LAW. should not be ordered. 39 Waterman v. Langdon, 15 Phila. 211. 79. Rule for issue on sheriff's interpleader under Act of May 26, 1897, P. L. 93. 40 80. Rule to show cause why defendant should not have leave to pay money into Court and the claimants thereto be compelled to interplead. 41 Tande- grift v. Freeman, 1 W. N. C. 109 (D. C. 1874) ; Loughlin v. McCormick, 2 W. N. C. 352 (C. P. 2. 1876) ; Wasseman v. Bank, 3 W. N. C. 475 (C. P. 4, 1877). 81. Rule to show cause why declaration, bond, etc., in interpleader should not be struck off. Hallowell v. Schnitzer, 6 W. N. C. 469 (C. P. 2, 1879). 82. Rule to show cause why copies should not be substi- tuted for lost papers of record. 42 Kline v. Schaf- fer, 1 W. N. C. 63 (D. C. 1874). 39 This rule being in relief of the sheriff under the Act of April 16, 1848, P. L. 441, is favored by the courts and by long estab- lished custom is made absolute on its return. It is granted only at the instance of defendant ; Swift Co. v. Fleming, et al., 12 D. E. 287 (Clear! 1902). The claimant must file a formal state- ment; Provost v. Algeo, 8 D. R. 517. (C. P. 1 Allegh. 1899). 40 This act has no application in the case of domestic attach- ment; M'Cullough v. Linn, 8 D. R. 378: (Cumberland 1899). If no answer is made to the rule it will be made absolute by the court; Meyer v. Jeske, 8 D. R. 239 (Pike, 1898). 41 This is the correct rule for a garnishee to take, who has been served with several attachments: Wilbraham v. Horrocks, 8 W. N. C. 285 (C. P. 4, 1880). 42 As to duplicate of lost writ, see Hope Association v. Dun- ham, 5 W. N. C. 148 (C. P. 2, 1878). MOTIONS AND RULES AT COMMON LAW 83. Rule to show cause why impertinent matter in the pleadings »>f record should not be struck out .1. ('. v. B. C, 1 W. X. C. 372 (C. P. I. L875) ; !/<>< /- ling v. .V(//-. Co.. 4 \Y. X. C. 72 (C. P. :'., L877). 84. Rule to show cause whv exceptions to auditor's re- port should not be struck off. Croft's Est. 14 W. N. C. 437 (C. P. 2, 1884). V. Rules relating to evidence. 85. Rule to produce books aud papers at trial. 43 Rol- lers v. Dunbar, 1 \Y. X. C. 313 (C. P. 2, 1875) : Bank v. Power, 2 W. X. C. 275 (C. P. I. L876) ; Preston v. Sarmiento, 4 W. X. C. 89 (C. P. 2, "Under act of Feb. 27, 1798, 3 Sm. L. 303, by long settled practice this is a thirty day rule; the rule is nol necessarily an allocatur but the reason for the rule should specifically state the interest of the party asking it. the information desired and the object to be attained. Thomas v. Lansdale & Norristovm /.'. /.'. R. Co., 13 I). H. 803 (Montgom. L894). This rule is proper where a paper which plaintiff requires to prepare his statement of claim is in possession of defendant to procure a copy (Pi080 v. Equitable L. A., L2 D. H. 51 ('. P. Lane. 1903). Bui if can not be enforced in an action for libel (Rogers v. Dun, 8 I >. If. tilt'., 1899). Xor against an assignee for benefit of creditors (Hazletfs Est., S. I). R. 201, L899). Nor can the common- wealth employ it to compel defendant in an indictment for libel to produce the paper which is the subject of the indictment (Com. v. Meades, 11 D. R. 10 Q. S. York, L901). Produc- tion of books, etc., may be compelled by Bill of Discover} (Reed v. Stevenson, 6 W. \. C. 173, C. P. I. 1878). Bui not in an action on penalty (Boyle v. Smithman, 146 Pa. Ladenburg v. /'. /.'. II. Co., 6 D. R. 153 (C. P. L. 189^ I. 56 MOTIONS AND RULES AT COMMON LAW. 1877) ; Moelling v. Lehigh Co., 9 Phila. 223 (D. C. 1874). 86. Rule to take depositions. 44 87. Rule to show cause why an order should not be made directing the attendance of opposite party as witness. Oirard Ins. Co. v. Mut. Ins. Co., 10 W.N. C. 136 (C, P. 3, 1881). 88. Rule to show cause why opposite party should not be examined under deposition. Bank v. Bryan, 15 W. N. C. 468 (C. P. 1, 1884). 89. Rule to show cause why party should not file names of witnesses to be examined under a commission. Cot. Co. v. Stemberger, 12 W. N. C. 290 (C. P. 1, 1882). • 90. Rule to show cause why time for taking testimony. (as c. g., under a commission, should not be ex- 44 Under rule 15, sec. 1 (Rules of Courts of Common Pleas, Philadelphia County), depositions taken under rule may be read at trial of the cause in case of the death, absence from state or " other legal inability of witness to attend." — But the deposition of a witness who has a residence in the state and within forty miles of the place of trial unless the court is satisfied that the witness cannot be produced at the trial. Production of papers, etc., will not be required at the taking of depositions, although they will be at the trial Raul v. Van Horn, 133 Pa. 573; Penna. Co., etc. v. G. & N. R. R. Co., 20 Phila. 332 (C. P. 4, 1891). This rule is absolute and of course under the rules and regulations established by the courts, but when it is desired to vary from these an allocatur must be obtained M'Ouigan v. Swayne, 1 W. N. C. 41 (D. C. 1874). MOTIONS AND RULES AT COMMON LAW. ,; tended.) Lowenstein v. Bimbaum, 6 \Y. N. C. 452 (C. P. 4, 1879). 91. Rule to show cause why deposition of a party should not be taken as if in cross examination. Asch. v. W. P. A\ A'. Co., 4 W. X. <\ 571 (C. I'. 2, L877) ; Amend, to Rule of Court, xv.. sec. 18, 5 W. X. C. 14 (C. P. Phila. L878). 92. Rule to show cause why depositions should nol I"- filed. Vanarsdalen v. Dickerson, 2 \\ . X. <\ ill (C. P. 1, 1875) ; Johnson v. /'. A'. A'.. 5 \Y. X. < \ 360 (C. P. 1, 1878) ; O'Connor v. Wet fcs, L0 W. \. C. 372 (C. P. 4, 1881) ; Rogers v. Gilmore, 13 W. N C. 193 (C. P. 2, 1883). 93. Rule to show cause why auditor should nol file tes- timony. Miller v. Trimble, 1 W. X. C. 390 (C. P. 3, 1875) ; McMullin's Est., Ibid. 432 (C. P. 3, 1875). 94. Rule to show cause why written instrument, the cause of action, should not be transmitted with commission for inspection by witness. Kohn v. Teller, 2 W. X. C. 487 (C. P. 2, 1875). 95. Rule to show cause why Letters Rogatory should not issue. 45 Wilkinson v. Starr, Kl W. X. C. '-'>~> (C. P. 2, 1885). 48 Under rule of court 15, sec. 8 (Rule Court e Comn Philadelphia Co., p. ii!»), written interrogatories must be an* oexed, the court will not lend aid t<> the execution <>f letters rogatory by a viva voce examination Doubt \. /'. <& /.. E, /.'. /.'. C, 6 D. R. 238 (C. P. 1, Allegh. L897). 58 MOTIONS AND RULES AT COMMON LAW. VI. Rules relating to trial. 96. Rule to show cause why a new trial should not be granted. 46 97. Rule to show cause why nonsuit should not be taken off. Riggin v. Beckie, 9 D. R. 439 (C. P. 4, 1900). VII. Rules relating to verdict and assessment of damages. 98. Rule to show cause why the verdict should not be amended. Paul v. Caughlin, 1 W. N. C. 390 (C. P. 4, 1875) ; Carl v. mine, 14 D. R. 534 (C. P. Columbia, 1905). 99. Rule to show cause why verdict should not be set aside. McCauley v. McCaulcy, 4 W. N. C. 402 (C. P. 4, 1877), or struck off. Elliot v. Mullen, 1 W. N. C. 314 (C. P. 4, 1875). 100. Rule on plaintiff to elect to remit a portion of the verdict [naming amount] or have a rule for new 46 By rule 27 (Rule? of Courts of Common Pleas of Phila- delphia County, p. 123). this rule must be taken within four days after the"verdict: this time as computed excludes the day of the trial; and the bill of exceptions to the rulings of the court during the trial must be presented to the court for signing within ten days after the verdict Gastman v. U. T. Co., 13 D. E. 210 (C. P.' 1, 1904). MOTIONS AND RULES AT COMMON LAW. trial made absolute. Keating v. /.'. /,'. ( .,.. :, \y. N. C. 232 (C. P. 2, 1878). 101. Rule to show cause why the assessment of damages made by the Prothonotary od a judgmenl should not be vacated. 41 Siner v. Henderson, l \\ . N. C. i>4 i 1). C. 1874) ; Terry \. Slemmer, 11 \V. \. C. 155 (C. P. 2, 1881 i ; Bldg. Asso. v. SchulU r, 3 W. N. C. 431 (C. P. 1, 1877) ; Bldg. Assn. v. /.. n tz, 10 L). R. 257 (C. P. 5, 1901 i. 102. Rule to show cause why assessment of damages Bar judgment should not be amended. 48 Samuel v. 47 Sometimes this rule is directed to the prothonotary as well as to the plaintiff but this does not seem to be necessary, as the prothonotary's position will be supported by the plaintiff. Hut the amount of the assessment as it stands, and as it is claimed should be, are properly incorporated in the rule. 'This rule does not require allocatur, but it is more orderly practice to ask one, as the affidavit in support of the petition for the rule, will dis- play the facts of the petitioner's case in a far more satisfactory way than by the brief " reason for rule " can supply. 4S These- rules are more frequently employed in cases of judg- ments entered by warrant of attorney attached t : incorporated in a bond or promissory note which contain a clause stipulating that a sum measured in per centum of the real debt shall be in- corporated in the assessment of damages when judgment is en- tered by virtue of the warrant of attorney. It is improper to 80 active steps are taken by the attorney for plaintiff. lie must do more than merely enter judgment: to issue a fieri facias is sufficient to entitle him to his commission. There i- a diversity of opinion a- to how the "attorney's commission" i-< to be computed whether upon the principal sum of the debt or upon this sum plus interest: the preponderance of pi favors the former, hut notwithstanding the authority of /■' .l.s.so. x. McKeown, n; W. X. C. 156 (C. P. '. I mally the latter method is adopted. The following ten a> indicatory, the attitude of the courts as • amount of (he u commission " \ Sloan v. Oarren, !■'• Phila. 63; llennxg \ Hied- CO MOTIONS AND RULES AT COMMON LAW. Scott, 7 W. N. C. 438 (C. P. 2, 1879), or reduced. Reed v. Worthington, 9 W. N. C. 192 (C. P. 4, 1880). 103. Rule to show cause why assessment of damages by jury of inquest should not be set aside. 49 Mutter V. Moore, 2 W. N. C. 429 (C. P. 4, 1876) ; Bender v. Gibbon, 4 W. N. C. 543 (C. P. 4, 1877) ; Reilly y. I. C. B. Union, 12 W. N. C. 93 (C. P. 1, 1882). 104. Rule to show cause why an award should not be set aside. Navel v. Elliot, 5 W. N. C. 35 (Tioga, 1878). VIII. Rules relating to judgment. 105. Rule on plaintiff to show cause why he should not produce originals of instrument sued on, for in- spection. 50 Richardson v. Snyder, G W. N. C. 414 (S. C. 1879). erwolf, Ibid 65; Reed v. Warthryton, 9 W. K C. 192 (C. P. 4, 1880). Imler v. Imler, Ibid 196 (S. C. 1880). Since the act of July 9th, 1901, P. L. 614, the courts have been more liberal in allowing the attorney's commission to stand as provided by the instrument. 49 This rule is of very infrequent occurrence and is not favored by the courts. It does not rest at all on the same principles as a motion for a new trial for insufficient or excessive damages, but rather on the analogy of an award, which is not to be set aside except for fraud or misconduct or plain mistake of law. 50 To enable defendant to take advantage of an affidavit of de- fence if a variance : it is not a rule of course but requires allo- catur {Burton v. McCully, 9 W. N. C. 206 C. P. 2, 1880). Indispensable that the copy should be accurate; Guskey v. Spar- ter, 1 W. N. C. 470 (C. P. 2, 1875). MOTIONS AND RULES AT I OHMON LAW. g] 106. Rule for judgment for want of a sufficient affidavit of defence. 81 107. Rule to show cause why judgment should aot l" 1 entered for amount admitted in affidavit of de- fence to be due (under Act of May 31, L893, P. I.. L85). 52 Calkins v. Keely, :\ D. R. : , .: , .:» (C. 1'. -J. 1894 ) . 108. Rule to show cause why part of plaintiff's cause ■>: action should not lie withdrawn — e. n same day plea is filed should aot be struck off. 121. Rule to show cause why judgment should not be entered in the appearance docket nunc pro tunc. Phila. v. Gault,8 W. X. C. 14 (C. P. 1. L879). 122. Rule to show cause why an assigned judgment against the petitioner, should not be Bet off against one in his favor. 55 Horton v. Mil!,,-. ;i Pa. 256 (1803) ; Wimllrv. [foore, L0 W. X. C. 387 "For failure to answer at all judgment ma) be take] Philadelphia by motion in prothonotary's office, and ah garnishee fails to obey a pule for more Bpecific answer, if, how- ever, he does file an answer following such a rule then th - must be taken to determine the sufficiencj of the answers ; / v. BUnn, 2 W. \. C. L72 (C. P. l. 1875). "The better practice would seem t" be to demur to the statement filed in the Common Pleas, by which the questi jurisdiction would be reached as readily as by the rule. \ judgment cannot be set off against one which hae opened; Barles v. Wright, 88 Pa. Super. Ct. 160 (190 £4 MOTIONS AND RULES AT COMMON LAW. (Chester, 1880) ; Stout v. Moore, 7 W. N. O. 456 (C. P. 4, 1879). 123. Rule to show cause why a mistake in entering judg- ment should not be corrected, as to name of de- fendant. Schwartz v. Maurcr, 2 W. N. C. 445 (C. P. 2, 1876). As to amount. Gourley v. Hess, 8 W. N. C. 140 C. P. 3, 1879). — As to superfluous matter. Hartley v. White, 94 Pa. 31 (1880). 124. Rule to show cause why judgment should not be struck off. 56 PunxsutawneyB. & L. A. V, Gallo, 9 D. R. 761 (Jefferson, 1900) ; Wilkinson v. Nichols, 10 W. N. C. 350 (C. P. 3, 1887). 125. Rule to show cause why judgment on a transcript from a magistrate's court should not be struck off and case dismissed. 57 Wilson v. Keely, 6 W. N. C. 272 (C. P. 4, 1878). 126. Rule to show cause why judgment should not be 08 The better term is " vacated " rather than " struck off," occasionally the rule is to "set aside" the judgment, but it is doubted whether this will be as effective to raise the lien of the judgment as to vacate. This rule is only proper where an irregu- larity on the face of the record is apparent. Rothenhausler v. Bothenhausler, 6 W. N. C. 560 (C. P. 2, 1879). Laches on the part of defendant is fatal to the rule (Fry v. Morgan, 9 D. R. 210 (Schuylkill 1900) ; Blake v. P. R. R. Co., 12 D. R. 661 (Blair 1903). 57 The Court of Common Pleas has no power to vacate or an- nul a judgment in a transcript from the docket of a justice of the peace or magistrate unless the record displays such an irregu- larity as will render the judgment void. Hicks v. Bldg. Asso., 12 D. R. 143 (Berks 1902). MOTIONS AN'H RULES AT COMMON LAW. opened and defendant permitted to make de- fence. 68 Hippie v. Stoner, 11 1». l;. 631 (Lan- caster, 1905 |. 127. Rule to show cause why judgment should not be modified, iasr. ,/., by directing that do execution issue without order of court i. Whipple v. Fire Association, ."» W. N. C. 259 I < '. P. ::. 1876) ; or by limiting the estate recovered, in ejectment to a portion instead of the whole. Gourley v. //■ \ W. N. C. 140 (C. P. 3, 1879). 128. Rule to show cause why judgment against several defendants should not be marked to the use <>f 58 If tlir petitioner is a stranger to the record — terre-tenant or person affected by the judgment — the rule should be " and pe- tioner admitted to inervene pro inter esse suo and made de- "• Rittenhouse v. Fetters, 9 W. X. C. 22 L (C. P. 2, I - If plaintiff responds to petition and makes answer raising a conflict with the averments of petition, the court must determine the facts of the case upon depositions Hotchkiss v. Lamphier, 9 D. B. 23 (Crawford is!i!»). See as to evidence required; Cooke v. Edwards, 9 I). R. L82 (C. P. L900). As to judgment entered by warrant of attorney; Miller v. Schenk, 94 P (1880). The rule will be discharged unless the averments in the petition, if denied by plaintiff, are unsupported by deposi- tions; Appelgate v. Cohn, 1 Pa. Super. Ct. l^l (1896). When defendant alleges a defense to a claim upon which judgment has been entered for failure to file an affidavit of defense in time, upon a rule thereto directed and served the court will pass upon the sufficiency of the defense in determining the rule Hunter v. Forsyth, 205 Pa. 166 (1903). Act of June '■<>, 1887 P. L. 332, conferred no power on married woman to confess judgment to secure debt of husband; Real Est. Ins. Co. v. Eoop, 132 Pa. 196 (1890); Pinkney v. Murray, 15 W. N. C. 391 (S. C L880). Bui see, as to a D. S. B. executed prior to this act upon which judgment has I n entered subse- quent to act dune 8, 1893 R. I. 344; Mutual Life Ins. \ lleydrick, 22 Pa. C. C. L59 (Crawf. L899). 5 66 MOTIONS AND RULES AT COMMON LAW. one of them. Pearce v. Yost, 1 W. N. C. 472 (C. P. 2, 1875). 129. Rule to show cause why the marking to use of a judgment should not be vacated. 130. Rule to show cause why plaintiff should not issue execution against all the defendants equally, or upon payment by one, mark the judgment to his use. Wilson v. Ritchie, 4 W. N. C. 37 (C. P. 2, 1877). 131. Rule to show cause why the prothonotary should not enter satisfaction of the judgment of record. 59 132. Rule to show cause why plaintiff should not enter satisfaction, under act March 14, 1876, P. L. 7. Eorton v. Hopf, 4 W. N. C. 381 (C. P. 2, 1877) ; Felt v. Cook, 9 W. N. C. 246 (S. C. 1880) ; City v. Oiccns, 12 W. N. C. 292 (C. P. 3, 1882). 133. Rule to show cause why verdict in interpleader should not be erased from judgment index. Key- ser v. Ellis, 13 W. N. C. 313 (C. P. 1, 1883). 134. Rule to show cause why satisfaction of a judgment should not be revoked. Mooney v. Carlin, 1 W. N. C. 92 (D. C. 1874) ; Crouthamel v. Silberman, Ibid. 131 (D. C. 1874) ; Schnitzler v. Hammill, Ibid. 471 (C. P. 2, 1875). 135. Rule to show cause why an award of arbitrators 59 If discharge is claimed the rule should be to open the judg- ment. MOTIONS AND RULES AT COMMON LAW. 7 should ih»t 1m- vacated and petitioner lei into a defence. Len et al. v. Nolan et . C. 1874); Sheridan v. Cassidy, [bid. L34 (D. C. L874 i ; Rathbone v. Stetson, I W. N. C. 55 (C.P.I, 1877) : ApplegaU v. R. R. Co., 12 W. N. C. 106 (C. P. I, L882) ; Hubble Whiti Co. v. Whiti Co., 9 I). R. 568 (C. P. Blair, L900) and Bement v. Jackson, Ibid. T o « ; (Cumberland, 1900). In interpleader: Smith v. Stoddart, 8 W, N. C. 407 (C. P. 2, 1880). In divorce: l/<- Elhinney v. McElhinney, 13 W. N. C. I'.U (C. P. 2, 1883). 137. Rule to show cause why defendant should not enter 60 By rule 14, sec. 1 (Rules Courts of Common P Phila- delphia), security for costs cannol be demanded of a noi dent plaintiff, unless the defendant has a defence to the whole of plaintiff's claim. In Mason v. Frick, 12 W. X. C. 570 (C. P. I. 1883), it is held that it is too late to ask for the rule after issue joined; 1 Kirk v. Kern, 13 W. \. C. 281 (C. P. 2, L883), and Uickok v. ParkAsso'n., 1 I W. N. C. 12 (C. P. L, 1883). Where defendanl is also non-residenl plaintiff cannoi 1"' re- quired to give security; Broat v. Knight, 10 D. R. i 10 (Wayne 1901 | but Bee Uuir v. Leww, L0 D. R I 19 (C P. I. 1901 I, and Tijhr v. y,v, ( /e,„, 30 W. N. C. 372 (C. P. :'. L892). es MOTIONS AND RULES AT COMMON LAW. security for damages and costs. 61 Young v. Cooper, 6 W. N. C. 206 (C. P. 2, 1878). 138. Rule to show cause why garnishee should not be allowed costs and expenses. 62 Milne v. Buckner, 12 W. N. C. 532 (C. P. 2, 1883). 139. Rule to show cause why actions should not be con- solidated. City v. Tyson, 9 W. N. C. 307 (C. P. 2, 1880). 110. Rule to show cause why bill of costs in interpleader filed without allocatur should not be struck off. Dorff v. Matthews, 38 Leg. Int. 52 (C. P. 2, 1881). 141. Rule to show cause why fieri facias for costs in in- terpleader should not be set aside. 63 Hanbcst v. Beckhaus, 13 W. N. C. 327 (C. P. 2, 1883). 112. Rule to show cause why execution for garnishees costs should not issue. Griffiths v. Stadtmueller, 9 W. N. C. 318 (C. P. 4, 1880). 143. Rule to show cause why ca. sa. for costs should C1 Rule 14, sec. 2 (Rules Courts of Common Pleas, Philadel- phia), provides that bills of costs must be verified by parties or attorneys M'Gervin v. Wanamaker, 10 D. R. 725 (C. P. 1, 1901). 62 Act of April 22, 1863, provides for counsel fee for gar- nishee ; counsel to be paid out of balance in bis hand after at- tachment and costs are satisfied in Getze v. Smith, 1 D. R. 123 C. P. No. 1, 1891, refused to tax garnishee's counsel fee as costs because garnishee did have such a balance in band : by the act of April 29, 1891, P. L. 35, this fee is now regularly taxed. 03 See as to costs in interpleader; Craig v. Bldg. Asso., 10 W. N. C. 296 (C. P. Delaware Co. 1881). MOTIONS AND RULES AT COMMON LAW. not be sel aside. Ueaa v. Crump, VI \v. x. <\ 534 (C. P. 4, L883). 144. Rule to show cause why proceedings should not be slaved until costs of previous action are paid. Amsthal v. Fox, 13 \\\ X. <\ 223 (C. P. 3, L883). 145. Kiilc to show cause why attachment should not is- sue against plaintiff for costs. Lewis v. Eddy, •'. W. X. C. 451 <(\ p. :i, 1878). 140. Rule to show cause why claimants (in inter- pleader) should not he allowed costs. Mausley v. Moore, 1 W. X. C. 268 (C. P. 1, 1875); Bank v. Emerson, 7 W. X. C. W2 (C. P. 1, L879) ; h< wet s v. Evans, I hid. 573 (C. P. 3, L879). 147. Rule to show cause why judgment should not he entered without costs. Kelly v. M'fg. Co., <", w. N. C. 18G (S. C. 1878); or costs disallowed: Samuel v. Scott, 7 \Y. X. C. 438 (C. P. 2, 1879; Proctor v. Brill, 13 W. X. C. 252. ( I'. S. C. C. 1883.) 148. Rule to show cause why costs, including costs of audit, should not he taxed, and execution issue therefor against claimant, who ordered the fund into court. Dinsmore v. Paris, 7 \Y. X. C. 295 (C. P. 2, 1879); Tatham v. Crawford, 2 W. \. <\ 3h7 (C. P. 1, 1876). 149. Kulo to show cause why affidavit of grounds upon which the sheriff was ordered to pay a fund into court, should not he exhibited. Brown v. Vmos, L' \Y. X. <". !!!!> (C. iv •:, 1875). 70 MOTIONS AND RULES AT COMMON LAW. 150. Rule on accountant — trustee, et ah — to show cause why he should not pay auditor's fee. Re Deineger Est., 2 W. N. C. 446 (C. P. 4, 1876). 151. Rule to show cause why respondent in proceedings de lunatico inquirendo should not pay costs there- of. 64 152. Rule to show cause why defendant in a scire facias sur claim for benefits assessed should not have his counsel fee taxed as costs. 65 153. Rule to show cause why plaintiff should not pay costs and charges. Perry Township Poor Dist. v. Red Bank T'w'p. do., 8 D. R. 526 (Q. S. Jefferson, 1899). 154. Rule to show cause why judgment should not be entered for no more costs than damages covered by verdict. 66 Savage v. McHale, 8 D. R. 560 (Venango, 1899). c4 But where the respondent prevails he should not be obliged to pay relator's counsel fee; Com., ex rel O'Shea v. O'Shea, 10 D. K. 580 (C. P. 2. Allegh. 1901). 65 Under act of May 16, 1891 P. L. 78, this rule may be made absolute as of course; Allegheny v. Dietrich, 8 D. P. 570 (C. P. 2, Allegh. 1899). 06 Costs can only be collected by the execution of the judg- ment an alias fi. fa. for costs will be quashed; Bradley v. C. & M. R. R. Co., 8 D. R. 493 (Clearfield 1899). MOTIONS AND RULES AT COMMON LAW. 3 | X. Rules relating to execution. 155. Rule to show cause why the sheriff should not have leave to proceed with an execution (stayed by feigned issue). 67 Maker v. Conner, 2 \v N C 335 (C. P. 2, 1876). 15G. Rule to show cause why terre-tenani should not ho allowed to enter security for stay of execution. Ellis v. Cadwallader, 14 \Y. X. C. 12 (C 1* 1 1883). 157. Rule to show cause why sheriff should net he re- strained in execution to certain property. 158. Rule to show cause why execution should nut issue for amount remaining due on a judgment. Gor- man v. Mountjoy,6 \Y. X. C. 67 i ( '. P. 3, L878). 159. Rule to show cause why hooks of a limited partner- ship should not he produced and execution issue against the individual members. Bement v. Brick 07 In ordinary cases where there ha- I n a defaull by the claimant, or intervening party, as by noi filing his nan-, etc., within the time allowed, tin' practice i- to make a motion before tin- court, or a judge in chambers for, an order granting leave to the sheriff to proceed; Hallowell v. Schnitzer, 6 \\ . V < '. 169 (C. P. •-'. L879). As to the rigW of the claimant to go on with the issue without filing his bond and have the money paid into court, see Dillon v. Conover, 2 W. V C. 126 (C. P. I. I Shaw v. Kenah, [bid i~: (C. P. I. L875), and Barnum v. O'Brien, ) W. \. r. 82 (C. P. I, l-. 72 MOTIONS AND RULES AT COMMON LAW. Co., 5 W. N. C. 58 (C. P. 4, 1878) ; Whitall v. Williams, 6 W. N. C. 44 (C. P. 2, 1878). 160. Rule on sheriff to pay proceeds of sale of realty into court. 161. Rule to show cause why sheriff should not pay the proceeds of a sale of personalty into court. 68 Snow Y. Hymun, 2 W. N. C. 352 (C. P. 2, 1876). 68 The proceeds of sales of personalty are not ordinarily payable into court, and a rule with regard to them requires to be allowed upon special ground shown. Applications for this purpose, how- ever, are made with noticeably increasing frequency at the pres- ent time, and require careful attention, both from the bar and the courts, to avoid unsettling the practice and introducing great ad- ditional delay and inconvenience in realizing the proceeds of an execution. There are cases where the permission is, of course, as where claimant in an interpleader has been unable to give bond, and the sheriff has, therefore, proceeded to sell the goods. Dillon v. Conover, supra; Barnum's Co. v. O'Brien, supra, and there are others where, by reason of liens for rent, wages, etc., the fund is assimilated to one arising from the sale of land, and, in such sases, it is the practice to allow the payment into court. Weis v. Weis, 3 W. N". C. 76 (C. P. 2, 1876) ; Kochenderfer v. Feigel, 5 W. N. C. 404; C. P. 2, 1878; Dunn v. Megarge, 6 W. K C. 204 (C. P. 2, 1878). But such cases are exceptional. As a rule, the sheriff must take the responsibility. The law he is bound to know, and the few facts that affect the right of distribution, such as priority of the writ, etc., are such as are peculiarly within his knowledge. Mere difficulty, or even danger, is not ordinarily enough, but the true principle, on which courts do interfere and assume the distribution, is that there are rights involved by reason of a lien, or fraud and collusion, etc., which are entitled to the protection of the courts, and for which the es- tablished action against the sheriff is not an adequate remedy. When, therefore, it is said in some of the cases that if it is unsafe for the sheriff to take the responsibility, the court will relieve him, the language used must be considered in connection with the case in hand. Mathiews v. Webster, 7 W. N. C. 81 (C. P. 4, 1879) and Oeisel v. Jones, Id. 82 (C. P. 4, 1879), were both cases MOTIONS AND RULES AT COMMON LAW. 73 162. Rule to show canst' why execution should not be staved, (e. //.. where an application has been made and is undetermined, to open the judgment, upon which it issues in another court 1. Belding v. Loire, 1 W. X. C. 313 (C. P. 2, 1875). 163. Rule to show cause why execution should not he restrained, (c. g., until plaintiff has indemnified defendant against an outstanding note). Yerkes v. Mooney, 1 W. X. C. 433 (C. P. 4, 1875). 164. Rule to show cause why execution should not be set aside. Hanlcy to Use v. Fidelity Trust Co., 8 D. R. 207 (C. P. 4, 1879) ; or to dissolve attach- ment execution: Backer v. Saurman, 9 W. X. C. 403 (C. P. 1, 1880). 165. Rule to show cause why sheriff's sale of realty should not he set aside. 69 166. Rule to show cause why a sheriff's sale of person alty should not be set aside. Yocum v. Specht, 1 W.N. C. 6 (D. C. 1874). 167. Rule to show cause why exceptions to sheriffs re- of alleged fraud within the rule as I have stated it, and in Kirk v. Ruckholdt, 7 \Y. X. C. 81 (C. P. 4, 1879), the rule was dis- charged. The subject was most fully and carefully considered in Marble Co. v. Burke, 5 \Y. X. C. 124 (C. P. 2. 187*3 ), and the principles there laid down (followed in Dunn v. Megarg,e o' W. N C. 204 (C. P. 2, 1878), are those which oughl to govern and settle the practice. There does not seem to be any case which, properly examined on the facts, is at all in conflict with theBe principles. Baum v. Brower, 11 W. X. C. 802 ( I '. P. -'. I 00 For a discussion of this rule see post page 138. ?4 MOTIONS AND RULES AT COMMON LAW. turn should not be struck off. Craig v. Craig, 1 W. N. C. 613 (C. P. 4,1875). 108. Eule (by sheriff) to show cause why he should not have leave to pay proceeds of a sale of personalty into court. 70 169. Rule to show cause why money should not be paid into court and execution stayed. Fuller v. Blein, 9 W. N. C. 574 (C. P. 2, 1880). 170. Rule to show cause why court should not control the order and manner of sale of real estate. Dill's Appeal, 13 W. N. C, 499 (S. C. 1883). 171. Rule to show cause why execution should not be restricted, in conformity to contract under which judgment was obtained, i. c, to a particular fund. Mcknight v. Life Asso., 15 W. N. C. 400 (C. P. 1, 1885). 172. Rule to show cause why sheriff should not take purchaser's receipt and make special return. Building Asso. v. Steele, 10 W. N. C. 238 (C. P. 2, 1881). " 173. Rule to show cause why appraisement should not be had on claim of exemption. Vankirk v. Allen, 1 W. N. C. 231 (C. P. 1, 1875). 174. Rule to show cause why appraisement should not be amended. 70 See rule 1G1 and note. MOTIONS AND RULES AT COMMON LAW. ;;, 175. Rule, by defendant, to show cause why claim of exemption should not be allowed. 71 170. Rule, by plaintiff, to show cause why claim of ex- emption should not be disallowed. McCauley v. Rigg, 10 W. N. C. 425 (C. P. 4, 1885). 178. Rule to show cause why appraisement should not be set aside. 72 Convth to Use v. Brown, 9 D. R. 731 (Indiana, 1900). 179. Rule to show cause why the indorsement " exemp- 71 The claim of exemption may be made and established by defendant's daughter Bank v. Griffith, 8 D. P. 333 (Chester 1898). 72 It seems that the right to exemption may not be denied without a jury trial; Tasker v. Sheldon, 19 W. K C. 31 (S. C. 1887). It is not usual to interfere with the sheriff in allowing or re- fusing the claim of exemption or the conduct of the appraise- ment; his liability to an action being in ordinary cases a suffi- cient protection to parties concerned. Pile v. Grambo, 1 W. X. C. 7 D. C. 1871; Kiker v. Walker, 7 W. N. C. 521 (C. P. 2, 1879) ; Norris v. Town, 1 W. N. C. 62 (D. C. 1874) ; Chestnut v. Meace, 3 W. X. C. 210 (C. P. 4, 1876) ; Thornton v. Aubrey Hotel Co., 5 W. X. C. 428 (C. P. 3, 1878) ; Bowman v. Tagg, 6 W. X. C. 220 (C. P. 2, 1878). But in exceptional cases, where it 'plainly appears that the appraisement lias been im- properly or fraudulently conducted, the courts have interfered. Posey v. Loutey, 5 W.'X. ('. 291 (<'. 1'. :'.. L878)«; Norris v. Town, 1 W. X. C. 51 (D. C. 1871 ) ; Staples v. Wells, 2 W. V C. 139 (C. P. 1, 1875) ;Cornman's Appeal, 7 W. N. C. 513 (S. C. L879); Martin v. Megarry, 8 W. X. C. L45 (C. P. I. L880) ; Buhl v. Crawford. L3 W. X. Q. L3 (C. P. 3, L883) ; Allemong v. Passmore, 1 1 W. X. C. 121 (C. P. 1, L883) ; Wilkins v. Rubin- cam, 15 W. N. C. 128 (C. P. 4, 188 1). Where relatives of de- fendant were appraisers. Bank v. Keen, 1 1>. R. !*'> (Lan,c. 1892). As to exemption where questions of law are involved; Smith v. Carter, 12 L. I. LOO (C. P. I, L885) ; McCauley v. Rigg, 16 W. N. C. 125 (C. P. 1, 1885). 76 MOTIONS AND RULES AT COMMON LAW. tion and stay waived " should not be struck off writ of fieri facias. Brown v. Dougherty, 4 W. N. C. 36 (C. P. 1, 1877) ; (explained in Allison v. Bradley, Ibid. 150, same court) ; Building Asso. v. Schott, 6 W. N. 0. 399 (C. P. 2, 1878). 180. Rule to show cause why inquisition and condemna- nation of land taken in execution should not be set aside. Huddy v. Jones, 5 W. N. C. 491 (C. P. 1, 1878) ; Donahue v. Helme, Ibid. 539 (C. P. 4, 1878). 181. Rule to show cause why levy and condemnation should not be set aside as to portion of the land taken in execution. Garsedv. Hutchinson, 2 W. N. C. 305 (C. P. 2, 1876). 182. Rule to show cause why an attachment of the per- son should not issue. 73 73 It is to be noted that, being the nature of a criminal pro- ceeding involving imprisonment for non-compliance with the order of court, notice of this rule must be served personally on the party to be attacked ; service on counsel or on a deputy (when directed against an officer) not being sufficient (Rex v. Smithers, 3 T. E. 351) ; Patterson C. Patterson, 1 W. N. C. 374 (C. P. 2, 1874)* But the attachment does not operate other- wise than to compel the person attached to appear and show cause why he should not be deprived of his liberty. Notice of the rule cannot be given in a foreign jurisdiction, Russel v. Russel, 11 W. N. C. 156, (C. P. 2, 1881) but may within the state; Bullock v. McBonough, 2 Pears. 195 (Dauph, 1874). The rule must explicitly state where the party attached is to appear so he may have opportunity to purge himself of con- tempt ; Com'th v. *Dow, 6 Luz. L. E. 219 (1877). A voluntary appearance of party attached, after the rule nisi has been entered, does not relieve him from the result (Respublica v. Newell, 3 Yeates 107). The rule will be discharged when issued against a party called by opponent to testify as in cross-exami- MOTIONS AND RULES AT COMMON LAW. 77 (a) For not complying with an order of court under the building law. Bowers v. Creigh- ton, 1W. N. C. 13 (D. C. 1874). (b) Or with an order to pay alimony. Patterson v. Patterson, Ibid. 371 (C. P. 2, 1871). (c) Or, on the sheriff, for disregarding an order of court. Fclton v. Uhlinger, Ibid. 37 (D. C. 1871). (d) Or on a surety for contempt in giving bond under false name. Com. v. Davis, Ibid. 18 (D. C. 1874). (e) Or to compel a witness to answer on taking of depositions. Addicks v. Carrigan, Ibid. 358 (C. P. 2, 1875) ; Struthers v. The Bul- letin, 2 W. N. C, 201 (C. P. 2, 1870). (f) Or on a subpoenaed witness for disregarding subpoena. nation, unless a subpoena to that end has been served upon him and his costs tendered (Trimble et al v. Mulholler, 8 1). R. I 1 1 (Blair 1899), and it is premature if for payment of an amount claimed, until by adjudication it is definitely fixed (Shaffer v. Davis, 1 W. N\ C. 374 C. P. 2, 1874). 78 MOTIONS AND RULES AT COMMON LAW. XL Rules relating to mechanics and municipal claims. 183. Rule to show cause why a mechanics' lien (or muni- cipal claim) should not be struck off. 74 Wolfe v. Kelly, 9 D. R. 515 (SchuyL, 1900); Christ v. Schuylkill E. R. R., Ibid. 268 (Schuyl., 1900); Br no re v. Leonard , Ibid. 211 (Lack. 1900) ; Con- nell v. Kerr, Ibid. 145 (C. P. 1, 1900) ; Allegheny v. Dietrich, 8 D. R. 570 (C. P. 2, Allegh., 1899) ; Harrisburg v. Augenbaugh, 8 D. R. 491 (Dauph. 1899). Este v. P. R. R. Co., 13 D. R. 451 (C. P. 74 This rule is only proper where the record shows an error on its face, and can he had at any stage of the proceedings : as for example, that the claim was filed too late, that notices (when required by the law under which claim was filed), were im- properly given, that the scire facias sur claim was too late in exit, or illegally made known, that the lien is improper in form, etc., hut where the objection is to matters that do not appear of record, such as wrong parties made defendant, an affidavit of de- fence must he filed. As such objections are matters of fact which must he proved if they are disputed, or which the plaintiff must have opportunity to attack their sufficiency in a rule for judgment. If plaintiff succeeds in getting judgment by default, then defendant's rule, in the latter alternative must be to open judgment and be let into a defence, or if it is obtained by a terre- tenant, or one not party to the record to open the judgment and intervene fro interesse sua to make defence. In the former class of objections a reason for, should be filed with the rule and in the latter, a copy of the affidavit and rule as allowed served on plaintiff. In all cases a stay of proceedings should be asked. As to formal objections it must be remembered that amendments are permitted by statute (acts of 1901), at any time and it is of little use to raise objections to any informalities of the lien at any time. It may be truthfully said that it is difficult for the plaintiff to blunder sufficiently to invalidate his cliam. MOTIONS AND RULES AT COMMON LAW. ;., 3, 1904) ; Walter v. Powell, Ibid 667 i Butler 1904). 184. Rule to show cause why owner of property should not pay into court amount due on claim. 75 I\'< n- derdine v. Eueman, 1 W. N. C. 105 (I). C. 1874 i. 185. Eule to show cause why a municipal claim should not be apportioned : City to Use v. Penrose, 6 \Y. N. C. 132 (C. P. 2, 1878). 186. Eule to show cause why judgment should not be entered for that part of a claim, to which affidavit of defence is insufficient. Swenk v. Irwin, 10 D. R. 732 (Delaware, 1901). 186. Rule to show cause why mechanics' claim should not be amended. Freundv. Fenner, 8 AY. N. C. 287 (C. P. 4, 1880) ; Sparr v. Walz, 9 \Y. N. C. 64 (C. P. 2, 1880) ; Young v. Harper, 12 W. N. C. 304 (C. P. 2, 1882). 187. Rule to show cause why municipal claim should not be amended. City v. Wagner, 9 W. N. C. 511 (C. P. 4, 1881). 188. Rule to show cause why non-pros for want of a narr on scire facias sur municipal claim should not be struck off. City v. Scott, 8 \Y. X. C. 405 (C. P. 1,1880). 189. Rule to show cause why municipal claims should 75 Under sec. 15, act June 4, 1901, P. L. 364, this rule does noi seem to be necessary. 80 MOTIONS AND RULES AT COMMON LAW. not be consolidated. City v. Tyson, 9 W. N. C. 367 (C. P. 2, 1880). 190. Rule to show cause why bond of contractor should not be filed to release property from mechanics' lien. Matsinger v. Mullen, 3 W. N. C. 544 (C. P. 2,1877). 191. Rule to show cause why an item in a mechanic's claim should not be struck out. Shields v. Gar- rett, 4 W. N. C. 140 (C. P. 4, 1877) ; Gray v. Dick, 8 W.N. G. 435 (C. P. 2, 1880). 192. Rule to show cause why judgment entered on a scire facias sur municipal claim should not be vacated. City to Use v. Mens, 9 D. R. 309 (C. P. 4, 1900). 193. Rule to show cause why judgment on a municipal claim should not be opened, and terre-tenant ad- mitted to intervene pro inter esse suo and defend City v. Nell, 25 Pa. Super. Ct. 347 (1904). 194. Rule to show cause why scire facias sur municipal claim should not be quashed. 76 City v. Riester, 142 Pa. 39 (1891). 195. Rule to show cause why judgment by default in a mechanic's lien should not be struck off. 77 Ruh- 76 This rule is effective either hefore or after judgment, but if it is taken after judgment on the clause is entered, the rule should provide that the judgment he vacated or " struck off " as it is in the usual term. 77 These objections would maintain in the case of municipal claims. MOTIONS AND RULES AT COMMON LAW. gi land to Use v. Alexander, 41 W. \. C. 16 (C. P. 4, 1897) : Johnson v. Schofield, 8 D. R. 410 (Clearf 1898). 19G. Rule to show cause why judgmenl should not Ik- entered for that portion of the claim for which the affidavit of defence is insufficient. Swenk v. Irwin, 10 D. R. 732 i Delaware, 1901). 197. Rule to show cause why date of claim should not be corrected. 198. Rule to show cause why claim should not be re- stricted to less land than against which it is filed. 78 199. Rule to show cause why plaintiff in a mechanic's claim should not file affidavit of amount actually due. Act of June 4, 1901, sec. 75, P. L. 431. 200. Rule to show cause why scire facias sur municipal claim should not issue. Act June 4, 1901, sec. 15 P. L. 364. Or under this same section. 201. Why defendant in municipal claim should enter security in lieu of the claim. Act of June 4, 1901, sec. 15, P. L. 307. XII. Rules in divorce. 202. Rules to answer libel, etc., in accordance with the rules of court. 203. Rule to show cause why alimony and counsel fee should not he allowed. Reeves v. Beeves, 1 W. N. C. 123 (C. P. Phila. 1874). 204. Rule to show cause why libel should not be amended. Matthvir.s v. Matthews, (I W. X. 0. 117 (C. P. 4, 1878). n T T nder sec. 23, act June 4, 1001, P. L. 431. 82 MOTIONS AND RULES AT COMMON LAW. 205. Rule to show cause why the case should uot be with- drawn from the master and issue awarded. Fougeray v. Fougeray, 5 W. N. C. 38 (C. P. 2, 1878). 206. Rule to show cause why decree in divorce should not be vacated. Peterson v. Peterson, 6 W. N. C. 449 (C. P. 3, 1878). 207. Rule to show cause why answer should not be struck off and issue refused. Jordan v. Jordan, 13 W. N. C, 193 (C. P. 2, 1883). 208. Rule for particulars. 79 209. Rule to show cause why list of witnesses should not be furnished where issue has been framed. Mul- leson v. Mulleson, 13 W. N. C. 314 (C. P. 3, 1882). 210. Rule to show cause why libellant should not have leave to discontinue. 80 79 Under act of May 25, 1878, P. L. 156, this is a rule of course and absolute in first instance. 80 In strict law a discontinuance is always "by leave of the court, and in cases where it will work hardship or injustice to another party, it is not allowed. Kennedy v. McN icicle, 7 Phila. 217 (D. C. 2, 1869). In ordinary cases, however, it is the uniform prac- tice to assume the leave of the court, without any application in fact for it, subject to be rescinded or struck off if the circum- stances are such that the court would not have granted it in the first instance. See Davis v. Sharpe, 5 W. N. C. 404 (C. P. 2, 1878) ; Schuylkill Bank v. Macalester, 6 W. & S. 149; Cooper v. Cooper, 1 Phila. 129 (D. C. Allghey. 1849). In divorce cases, however, the practice is always to take a rule in the form above given. Payne v. Grant, 7 W. N. C. 406 (C. P. 1, 1879); Latouche v. Rowland, 12 W. N. C. 384 (C. P. 2, 1882). Where something more than mere discontinuance is desired, as that it be nunc pro tunc, it is the practice to take a rule; Tisdall v. Paul, 8 W. N. C. 357 (C. P. 2, 1880). MOTIONS AND RULES AT COMMON LAW. g3 XIII. Miscellaneous rules. 211. Rule to show cause why amendment (of record or any part of it) should not be allowed. (See Rules 11, 20, 62, 68, 98, 197, and 215). 212. Rule to show cause why order on sheriff to proceed in an interpleader should not be vacated. Jag- gers v. Bruner, 1 W. N. C. 28 (D. C. 1871). -Or order to produce papers improvidently granted. Sollers v. Dunbar, 1 W. N. C. 313 (C, P. 2, 1875). Or order admitting attorney to practice. In re O' Grady, 4 W. N. C. 199 (C. P. 1, 1877). Or appointment of commissioner. Hortsman v. Kaufman, 7 W. N. C. 487 (C. P. 3, 1879). Or order to pay money in to Court. Garver v. Ward, 9 W. N. C. 192 (C. P. 4, 1880). Or for examination of defendant under Act of 1879. Loewi v. Haedrick, 8 W. N. C. 70 (C. P. 1, 1879). 213. Rule to show cause why order of Court, allowing sheriff to sell goods taken in foreign attachment, or perishable, should not be modified. Green v. Kenney, 6 W. N. C. 574 (C. P. 2, 1879). 84 MOTIONS AND RULES AT COMMON LAW. 214. Rule to show cause why entry of judgment on the index should not be erased or struck off. City V. Scott, 8 W. N. C. 405 (C. P. 1, 1880). 215. Rule to show cause why feigned issue in sheriff's interpleader should not be amended. Horton V. McCurdy, 37 Leg. Int. 377 (C. P. 4, 1880). 216. Rule to show cause why prothonotary should not note on docket certain data. Myer v. Verner, 10 W. N. C. 138 (C. P. 4, 1881). 217. Rule to show cause why chosing of arbitrators should not be set aside. Sicope v. McConsey et ah, 8 D. R. 373 (Lane. 1899). 218. Rule to show cause why decree by divided Court opening a judgment should not be vacated. Hoyt v. Wilmer, 13 W. N. C. 130 (C. P. 3, 1883). 219. Rule to show cause why a party may not act in any respect nunc pro tunc: -To move for a new trial: Hclmbold v. Caw- ley, 1 W. N. C. 41 (D. C. 1874). -To file an appeal: Kelly v. Gilmore, 1 W. N. C. 73 (D. C. 1874). Schveman v. Stern- berger, 7 W. N. C. Ill (C. P. 3, 1879). -To amend assessment of damages. Samuel v. Scott, 7 W. N. C. 438 (C. P. 2, 1879). -To discontinue the action. Tisdall v. Paul, 8 W. N. C. 357 (C. P. 2, 1880). MOTIONS AND RULES AT COMMON LAW. 35 To file answer to libel in divorce. 8chrn id( r v. Schneider, 9 \Y. N. C. 253 (C. P. 3, 18S0). To file statement in interpleader. Kiker v. Weightman, 9 W. N. C. 274 (C. P. 3, L880). To file depositions. Asso. v. Goldbeck, 12 W. N. C. 533 (C, P. 2, 1883). To file affidavit of defence. Brattle v. Deich- ler, 15 W. N. C. 221 (C. P. 1, 1884). To file affidavit under the Act of July 9, 1901, P. L. fill. King v. Grannis, 12 D. R. 3 (Warren, 1903). 220. Rule to show cause why proceedings should not be stayed. Longstreth v. Thornton, 9 W. N. C. 206 (C. P. 2, 1880). Until costs in former action are paid : frmitli v. Urian, 11 W. N. C. 284 (C. P. 3, 1882). 221. Rule to show cause why agreement of parties should not be struck from record. Miller v. Gallagher, 1 W. N. C. 374 (C. P. 3, 1875) ; Hagarty v. Morris, 2 W. N. 0. 154 (C. P. 2, 1875). 222. Rule to show cause why proceedings should not 1m? transferred from another Court and approved nunc pro tunc. 60 In re Baker's Estate, 2 W. N. 0. 198 (C. P. 2, 1875). ""Since the adoption of the method of assigning cases in Philadelphia County by Lot to one of the five Courts of Common 86 MOTIONS AND RULES AT COMMON LAW. 223. Rule to show cause why record and proceedings should not be removed to the United States Courts. Belt v. Montgomery, 1 W. N. C. 265 (C. P. 2, 1875) ; Loffler v. Ins. Co., Ibid. 346 (C. P. 4, 1875) ; Ruddy v. Havens, 3 W. X. C. 342 (C. P. 2, 1877). 224. Rule to show cause why petition for removal should not be set aside. 81 225. Rule to show cause why an exoneretur should not be entered. Com. ex rel v. Moloney, 3 W. N. C. 407 (C. P. 1, 1877). 226. Rule to show cause why order of sale in partition should not be set aside. Young v. Mclntyre, 6 W. N. C. 252 (C. P. 1, 1878). 227. Rule to show cause why a release of mortgage should not be vacated. In re Meloy Mortgage, 8 D. R. 364 (Cumberland, 1899). Pleas of Philadelphia County, this is a rule of course, but not absolute in the first instance, cause must be shown, and the cus- tom prevails to take the rule in the court to which the later case is assigned. It will be made absolute where the question raised by the later case is pending in another phase, in another court, or where the parties are the same, or where proceedings in Equity are the outcome of an action at law determined in an- other court. The reason for the practice is too obvious for ex- planation. 81 It would seem that the object of this rule would be as well attained in the disposition of such a rule as 222 : and it is doubt- ful that this rule would be made absolute unless it were allowed by the court upon peculiar facts which would establish extra- ordinary jeopardy to the party upon the final adverse disposition of rule 222. MOTIONS AND RULES AT COMMON LAW. 87 228. Rule to show cause why one should not be subro- gated to the rights of another. Fox v. Litwiler, 12 L). R. 337 (Columbia, 1902). 229. Rule to show cause why a next friend should not be removed and another substituted. Ruffel v. Po- ller B. A., 9 D. R. 182 (C. IV 4, 1900). 230. Rule to show cause why Plaintiff should not have leave to appear in person before a Commissioner, and orally to examine all witnesses as may be examined, in a foreign jurisdiction under commis- sion issued in behalf of defendant. Parsons, Ad- ministrator v. Middleton, 9 D. R. 53 (C. P. 4, 1900). 231. Rule to show cause why one judgment should not be set off against another, and the difference be- tween them accepted in satisfaction. Wiggins v. Dunkelbcrgcr, 9 D. R. 91 (Schuylkill, 1900). 232. Rule to show cause why judgment should not be vacated and writ of scire facias quashed : Sey- mour et al v. Fulton, 9 D. R. (ill (York, 1900). 233. Rule to show cause why an order to open a judg- ment should not be vacated. Eoyt v. Wilmer, 13 \Y. N. C. 130 (C. P. 3, 1883). 234. Rule to show cause why claim of exemption should not be set aside. Hayes v. Lents, 8 D. R. <*>2S (Montgomery, 1899). 235. Rule to show cause why substituted security should not be struck off and lien reinstated. Sillier V. Ross, 12 Pa. Super. Ct. 206 i L900). 88 MOTIONS AND RULES AT COMMON LAW. 23G. Kule to show cause why an application for a charter should not be withdrawn. In re Philadelphia As- sociation, 7 W. X. C. 140 (C. P. 2, 1879). XIV. Rules provided for by statute. 237. Rule to produce books, papers or documents at trial. Act of Feb. 27, 1798, 3 Sm. L. 303. 238. Rule to show cause why purchase of land at a tax sale should not reconvey to the owner. Act of May 18, 1856. 239. Rule for interpleader. Act of March 11, 183G, (sec. 4), P. L. 7. Vandegrift v. Freeman, 1 W. N. C. 109 (D. C. 1874). Or under act of May 20, 1895, P. L. 95. ( See Meyer v. Jeske, 8 D. R. 229 (Pike 1898). 240. Rule for Bill of Particulars in Divorce. Act of May 25, 1878, P. L. 156. 241. Rule to show cause why Court should not order satisfaction of jududgment. Act March 14, 1876, P. L. 7. 82 Shayler v. Parsons, 1 Pa. Super. Ct. 281 (1892) ; Melan V. Smith, 134 Pa. 649 (1890). 242. Rule to show cause why ejectment should not be brought. Act of June 25, 1885, P. L. 152. Great N. P. Co. v. Yates, 8 D. R, 523 (Warren, 1899). 82 It is doubtful whether this rule is proper in the case of an assigned judgment. MOTIONS AND RULES AT COMMON LAW. gg 243. Rule to show cause why judgment should not be rendered for amount admitted to be due. Act of May 31, 1893, P. L. is:,. Calkins et al v Keely 3D. R. 339 (C. P. 2, 1894). 244. Rule for an issue in Sheriff's Interpleader. Act of May 26, 181)5, P. L. 95. 245. Rule to show cause why plaintiff in Mechanics' Lien should not file affidavit of amount actually due. Act of June 4, 1901, sec. 25, P. L. 431. Same in Municipal Claim. Act of June 4, 1901, sec. 15, P. L. 3G4. 246. Rule to show cause why scire facias sur Municipal Claim should not issue. Act June 4, 1901, sec. 16, P. L. 364, and under section 15. Why defendant should not enter security in lien of the claim. 90 MOTIONS AND RULES AT COMMON LAW. VII. The Statement of Claim. 1. The Act of Assembly approved May 25, 1887, P. L. 271, effected great changes in the forms of practice, actions based on the contractual relation being grouped under assumpsit and those ex delicto iu trespass. The Act was supplemented in Philadelphia by the Rule adopted by the Courts of Common Pleas (Rule 30, sec. 2, 3, and 4). Section 3 of which requires the statement of claim to be fortified by the affidavit of plaintiff as to the truth of the averments, and this whether it is au action in assumpsit or trespass. The act itself does not require it. Under the old practice,, before the act of 1835, the plaintiff filed a declaration, and it was to the cause of action set out therein that defendant made his affidavit. In Dewey v. Dupuy, 2 W. & S. 556 (decided by the Supreme Court in 1841), Judge Sergeant, who had been a judge of the District Court, and had in his mind the old practice, says that the plaintiff may file a declar- ation or statement, and " defendants may be compelled to answer the averments contained in them." The judge was arguing that a declaration was not necessary, though it might be filed, and the point decided in the case, in- deed, was that a narr. was not necessary to support a ' • lament for want of a sufficient affidavit of defence. MOTIONS AND RULES AT COMMON LAW. cji Yet the incidental expression that defendants might be compelled to answer averments (coupled, perhaps, with some expressions by Rogers, J., in Bank of ( 'nited States V. Thayer, at the same term, 2 W. & 8. 447), was made the foundation of a practice extending the affidavit of defence law, by means of supplementary averments, to cases which had not previously been considered with in the act. Without going through the cases in detail, it is sufficient to say that the present practice is settled in Imhoff v. Brown, 30 Pa. 504 (1858) where the rule is laid down by Porter, J., as the better practice k ' to eon- fine the plaintiff to his copy, and a statement respecting the extent of his claim, and his right to sue, and not to permit him to allege facts against the defendant, in the absence of which a recovery would be impossible." In Dickerson v. McCausland, 3 W. N. C. 327 (C. P. 3, 1877), the rule is expressed by Ludlow, P. J. : " The func- tion of an averment supplementing a copy tiled is to liquidate a sum for which the defendant's liability is fixed by the instrument sued on." In Detmold v. Coal Co., 3 W. N. C. 5G7 (U. S. D. C. 1876), Cadwalader, J., says, the " book entries filed to assist the assessment of damages tend to extend, and not to limit the claim, as shown by the copies of the instruments of writing Such a purpose is not within the rule allowing averments to be filed with copies of instruments." Put in Collins v. O'Toolc, 3 W. N. C. 564 (C. P. 4, 1877) ; Koelle v. Eng> bert, 4 W. N. C. 202 (C. P. 4, 1877; Morris v. Ouier, 5 W. N. C. 132 (S. C. 1878) ; Fox v. Mausman, 5 W. N. C. 511 (C. P. 4, 18781 ; Scott v. Loughrey, (J \Y. X. C. 123 (C. P. 1, 1878); Bunting v. Allen, Ibid. L57 (C. P. 3, 1878) ; Oercke v. Montgomery, [bid. 238 (C. 1\ 3, 1878) ; Dundore v. Dobson, Ibid. 2«.»!> (C. P. 1, 1878), and Comth v. Maguire, 12 W. N. C. 2.01 (C. P. 2, L882), the effort was made, unsuccessfully, to help out the instru- 92 MOTIONS AND RULES AT COMMON LAW. ment sued on by an averment altering or extending de- fendant's liability. These were the conditions which developed the act of May 25, 1887, commonly called " the practice act." 2. But for all that, there was no attack made upon the Act itself, its constitutionality does not seem to have been assailed seriously, in fact no case involving the question appears in the State Reports and in the County Courts but one. Honeywell v. Tonery, 5 Kulp, 360, C. P. Luzerne County decided June 29, 1889, by Judge Rice. The report of the case does not indicate that stress was laid on the unconstitutionality of the Act, which was sus- tained in a two line sentence in the beginning of Judge Rice's opinion. The pioneer case under this act in the Supreme Court is Gould v. Gage, ct al., 118 Pa. 559, de- cided Feb. 6, 1888, reversing C. P. No. 4 of this county, which established the practice as to the requisites in the statement, as to a copy of the instrument basing the ac- tion, and also as to the necessity of explicit averments in the affidavit of defence, showed that there was no inten- tion on the part of the Courts to recede from at least the spirit of the earlier practice, even if the ways and forms had to be forsworn. This was followed by Byrne v. Hayden, 124 Pa. 170, decided Feb. 11, 1889. Mr. Justice Sterrett in deliver- ing the opinion of the Court, says: "The Act of 1887 providing for filing statement of claim, etc., was intended to have a wider scope than the old affidavit of defence law. It is necessary, however, that the statement should contain all the ingredients of a complete cause of action averred in clear, express and unequivocal language, so that if the defendant is unable to controvert or deny one or more of the material averments of a claim, a judgment in default of an affidavit or sufficient affidavit of defence, may be entered and liquidated " and again in Fritz v. MOTIONS AND RULES AT COMMON LAW. 93 Hathaway, 135 Pa. 274. (May 26, 1890) Mr. Justice Mitchell speaking for the Court, says: "As to all mat- ters of substance, completness, accuracy and precision are as necessary n<»w to a statemenl as they were before to a declaration in (he settled and time honored forms." And this is reiterated by Mr. Chief Justice Sterretl in similar language in Peale v. Addicks, 171 Pa 543 (1896). Rule 30, see. 3. (Rules Courts C. P. Philadelphia), requires that "Plaintiff's statement of claim shall con- tain a specific averment of facts sufficient to contain a good cause of action. It shall he supported by an affi- davit of the truth of the matters alleged as the basis «.f the claim and shall in all cases where damages are capa- ble of liquidation contain an explicit averment of the amount due." Unless a "good cause of action" be shown in the manner required as to "completeness, ac- curacy and precision/' a rule for judgment for want of a sufficient affidavit of defense will be discharged: Cap- ital City Ins. ('<>. v . Boggs, 172 Pa. 1)1 (1896) ; that is to say, it must aver every fact necessary to constitute the cause of action: Could v. Cage, 118 Pa. .>:>!> (1888). Although informality in averring them will not impair its validity, >s'/„/7// v. Smith, 166 Pa. 353 ( L895) ; Aggue v. Phila. d- Frankford R. A*., 3 D. R. 96 (0. P. 1. 1 893 ) . Section 3 of the above cited rule of court requires that " in all cases where damages are capable of liquida- tion [the statement of claim] shall contain an explicit averment of the amount claimed to be justly due." This was interpreted in the earlier practice under the act, that the averment must be made in haec verba. Could v. Cage, 118 Pa. 559 ( 1888). And while the ex- act point was not the basis of the reversal of the lower court, yd many practitioners considered it authority on the interpretation of the rule, as stated, see Schafer v. Brotherhood, 22 w. x. c. 312, (C. P. 3, i iWvuUH) in lsss 9± MOTIONS AND RULES AT COMMON LAW. after Gould v. Gage. But Smith et al. v. Smith, supra, settles the question that formality in the statement is a non-essential; the court (Mr. Justice Mitchell) saying " The main requirement of the statement under the Act [of May 25, 1887,] is to secure to the defendant clear and exact information as to what is claimed of him." This same rule of court also provides that " the truth of the matters alleged as the basis of the claim " must be sustained by plaintiff's affidavit : the act itself making no such provision; Ehrct v. Lewis, 7 Pa. C. C. 108 (Lu- zerne 1889). Common Pleas No. 2 in 1888 in Krauskopf v. Stent, 21 W. N. C. 185, required an affidavit to a state- ment in trespass. Where the action is on quantum meruit the statement must aver that the prices of goods sold and delivered as set out in the copy rendered are the usual market rates,, and that the goods, etc., were of the standard value: so also where the suit is for services rendered, unless the plaintiff can set up a contract stipulating the recom- pense for the services and that they were rendered, he must aver that the amount claimed is usual for such, services and that they were worth the amount claimed, unless he do this, plaintiff's statement will not entitle him to summary judgment upon an insufficient affidavit of defence, and he will be sent to a jury to prove his claim. Murphy v. Taylor, 173 Pa. 317 (1896)., If Plaintiff's claim be based upon a written instru- ment it must show a prima facie present existing obliga- tion to pay money. Creighton v. Nat'l. Supply Co., 10 D. R. 600 (C. P. 2, Allegheny, 1901), and must be set out in full in the statement, if brief, cheque, draft, note of hand, or a few item bill, let it be incorporated in the body of the statement, but if long, a contract, penal bond, lease, etc., it should be attached to the statement which must contain an averment of its accuracy and it should also by words be made " part of " the statement. MOTIONS AND RULES AT COMMON LAW. 95 VIII. Requisites of the claim. 1. The obligation which is the basis of the claim, must appear to be present at the time of suit. Therefore, if the time for performance, as shown by the instrument, has not arrived (though there may be a present right of action on other grounds), there can be no judgment on the copy. Titus v. Bell, 4 W. X. C. 380 (C. P. 2, 1S77) ; and even if the apparent prematureness of the suit is by a clerical error in the copy. Guskey v. S parte,-, 1 W. X. C. 470 (C. P. 2, 1875 1 ; Crcigliton v. Supply Co., 10 D. R. 000 (C. P. 2, Alle- gheny, 1901). 2. It must be absolute. A conditional promise, there- fore, is not sufficient. Edeline v. Homestead Ass'n., 4 W. X. C. 509 (C. P. 1, 1877). And this rule excludes all promises which are merely to guarantee or indem- nify. Berustine v. Gavaghan, 1 W. X. C. 506 (C. P. 2, 1875) ; Artisans' Ass',,, v. Noris, 1 W. X. C. 110 (D. C. 1874); Hcott v. Loughery, W. X. C. 123 (C. P. 1, (1878). 3. It must be on the defendant. Therefore book en- trios which do not contain any name are insufficient. Wail v. Dovey, 00 Pa. 212; Rothermel v. Polytechnic Coll., 7 \Y. X. C. 16 (C. P. 3, 1879), or which contain only defendant's last name, Williamson v. Earp, 5 W. N. C. 40 (C. P. 4, 1877), or a deed to defendant, doI signed by him, even though it may support an action, Morris v. Guier, 5 \Y. X. C. 132 ( S. 0. L878), or where 96 MOTIONS AND RULES AT COMMON LAW. the obligation does not appear to be from defendant to the plaintiff. Prahl v. Smoltz, 6 W. N. C. 571 (S. C. 1879). 4. It must be to pay money. An agreement to pay in goods, or in trade, etc., is not within the act. Cozens v. Thayer, 1 W. N. C. 207 (C. P. 3, 1875) ; Gould v. Rich- ardson, 33 Leg. Int. 158. But an agreement primarily payable in money, is not taken out of the act by an op- tion on the part of the debtor to pay in goods. See gingerly v. Caldwell, S8 Pa. 312. It is well settled that a promise to pay in goods, not performed according to its tenor, becomes an obligation to pay in money. Moore v. Kiff, 2 W. N. C. 451 (S. C. 1876) ; gingerly v. Arm- strong, 5 W. N. C. 139 (S. C. 1878). The judgment for want of an affidavit of defence, however, being a special statutory remedy, does not necessarily follow a right to recover in money, and in the class of cases last men- tioned therefore, in which the primary obligation is only to pay in goods, the plaintiff will not be entitled to such judgment unless in exceptional cases, where the default of the defendant by which the obligation has become pay- able in money appears on the face of the instrument, as, e. g., where the duty was to deliver the goods at a stip- ulated time before the suit was commenced. Where the goods are to be demanded by the plaintiff, the instru- ment is not within the act. Fox v. Manxman, 5 W. N. C. 511 (C. P. 4, 1878). Nor is an instrument transferring or pledging title, though it contains an admission of debt. Vandike v. Ward, 8 W. N. C. 418 (C. P. 2, 1880). 5. The instrument sued on may consist of more than one writing. Thus, a bond to pay money or lease with covenant of lessee to pay rent and a separate covenant of suretyship is a good instrument against the surety. Korn v. Holil, 80 Pa. 333 (1876) ; or a written contract LAW DEPARTMENT. MOTIONS AND RULES AT COMMON LAW. 97 of suretyship and book entries against the principal. Seltzer v. Greenwald, 2 W. N. C. 395 (C. P. 1, L875) ; Howell v. Herold, 6 W. X. C. 4:51 (C. P. 2, 1878). So where it is desired to obviate a defence which has been rendered inadmissible by writing, as, e. the passage of the act of 28th March, L835. That a.i was the first legislative sanction of judgments for want of affidavits of defence, and it made two notable changes in the exist- ing practice. The old practice had only required the de- fendant to swear that " to tie- best of his know ledge and belief there was a jusl defence" (3 Binn. 417 i ; the new act required him to state in hisaffidavil " the nature and character" of the defence, that is, to submit the suffl- 7 98 MOTIONS AND RULES AT COMMON LAW. ciency of it to the judgment of the court. But, on the other hand, the act relieved the defendant from the necessity of an affidavit, except in the specified cases of actions on bills, notes, and instruments for the payment of money. Of course the question at once arose as to what were instruments for the payment of money within the meaning of the act, and it was held that they must be for absolute payment, and not merely conditional or for indemnity. The special class of executory instruments, in which something still remains to be done by the plaintiff, which we are now considering, came before the District Court in 1830, in Montgomery v. Johnston, 1 Miles, 325, (D. C. 1S3G), and were held not to be within the then recent act. This continued to be the practice until 1850, when the District Court, under the influence of Dciccy v. Dupuy, 2 W. & S. 556, to which reference will be made presently, changed its ground, and in Rile v. Worl, 1 rhila. 45, (D. C. 1850), entered judgment upon such an instrument. How long this new turn in practice continued the reports do not enable me to say, " but " said Mr. Justice Mitchell in his first edition of Motions and Rules, " I have the authority of Judge Hare's recol- lection that it was not long, and I find on the margin of my 1 Philadelphia Reports a note of my own, that in March, 1873, when Rile v. Worl was cited in the Dis- trict Court, it was unanimously repudiated, with the re- mark that the practice was long settled against it." The question, however, would seem to be irrepressible, for it came up again before the Court of Common Pleas No. 4, in Sutton v. Athletic Club, 4 W. N. C. 90 (C. P. 4, 1877) and that court gave judgment upon an executory agree- ment closely similar to the one in Rile v. ^Yorl ;) citing that case as an authority. 81 81 Journal v. Reeves, 17 W. N. C. 222 (C. P. 1, 1885), was decided upon the authority of Sulton v. A. Club. MOTIONS AND HULKS AT COMMON LAW. 99 There docs not seem to be any decision upon tin- ques- tion by the Supreme Court. The our coming nearesl to it is Fertig v. Maley, 5 VV. X. C. 133 (S. C. LS78) in which a judgment was sustained on an agreement by which plaintiff sold to defendant all the ice that should be formed on a certain point, and covenanted not to in- terfere 1 with the Cutting, etc. This case, however, docs not touch the real point of controversy, for the defendant had promised to pay a sum certain at a time fixed, which had expired before suit brought, and the only executory undertaking of plaintiff was not to interfere, a negative which the law would presume for him in the absence of evidence to the contrary. Sutton v. Athletic Club was not followed by any other court, though there are a few cases which indicate that the weight of a considered opinion by the learned presi- dent of court Xo. 4 has not been without its natural ef- fect, in producing a hesitation and uncertainty upon the subject. There are, however, later cases in all the other courts of this county (reference to which will he made presently in discussing the subject of averments) which are inconsistent in principle with that decision, and which must be taken as virtual refusals to follow it. Notwithstanding that decision, therefore, the estab- lished present general rule of practice is that instru- ments for the payment of money dependent on a consider- ation which is executory on the part of plaint ill', are not within the affidavit of defence law, whether aided by supplementary averments or not. 82 7. Besides agreements executory in the sense we have 82 Courl of Common Pica-. X". 2 (1881) in King v. Exhi- bition Co., ]»i W. X. <'. 190, declined t<> recognize Sutton v. Athletic cinli. ae authority and was followed in this dei < by ('. 1'. No. •;. in 1882 in Farren v. Earned, L2 W. X. ('. 16. 100 MOTIONS AND RULES AT COMMON LAW. been considering', there are a large class of cases in which the instrument sued on does not show a complete liabil- ity on the part of the defendant without the aid of sup- plementary averments. The scope of such averments has been the subject of much discussion and some dis- crepancy in the decisions, and though it is now, and has been for a considerable time, pretty well settled, yet the persistency with which it comes up again and again shows that it is one of the questions, like that of execu- tory agreements, which will not stay settled without a considerable effort of the courts to preserve consistency in the decisions. Under the old practice, before the act of 1835, the plaintiff filed a declaration, and it was to the cause of action set out therein that defendant made his affidavit. Under the Act of 1887 the practice has returned to the same rule, and what is said under the present heal (VIII) as to the requirements of the instrument on which the action is founded must be read in connection with that rule. 8. Of course the plaintiff is entitled, in addition to the actual language of the instrument sued on, to the aid of all the facts and the law, of which the court will take judicial notice. Thus the lapse of time, by which the promise to pay has become a present obligation, will be considered by the court; and so the legal effect of acts which appear on the instrument, as, c. g., the indorse- ment of commercial paper, etc. McConeghy v. Kirk, 68 Pa. 200 (1871). 9. The general rule, then, by which to test the suffi- ciency of an instrument of writing, to entitle plaintiff to judgment for want of an affidavit of defence, is that it must upon its face, with the aid of such matters of fact or law as the court trill take judicial notice of, show a prima facie present obligation on the defendant to pay money. The rule is frequently expressed in the concise and admirable pratical test, could the plaintiff go to the jury on proof of the writing filed, without more? Ins Co. V. .motions and rules at common law. ioi Brierly, 10 W. N. C. 45 (S. C. 188] >, sec also Lovi v. />'/ it andby averment made part of it, A erne Co. v. Reid, L81 Pa. 382; and it must Ik- of the whole instrument. Lee v. Cooper, 8 I'm. C. c. isi (('. 1'. 3, L890) ; while tho statemenl Deed do! own that the contract sued on is in parol or writing, Lentz v. Carey, 8 Kulp, 259 (Luzerne L896). If it l»- in writing it is no! Buffi- cienl to charge the defendant unless it i.- set out. /; be al>l<' t<> prove the facts set out. This formula into which the long experience of the District Court had crystallized, has not been always regarded by the Supreme Court in the reported cases, but it has been steadily adhered to by the courts of Philadelphia County, and it is believed will always be recognized by the Supreme Court when their attention is directed to a departure from it. See Black v. Halstead, 3!) Pa. 61 ( 186] ) ; Hermann v. Ram- say, 5 W. N. C. 188 (S. 0. 1878) ; ami Boothe v. Alex- ander, 4 \Y. N. <\ 942 (S. C. 1S77). A rough but excellent practical test of the sufficiency of the averments in point of form is expressed in He' popular way by the question— supposing the falsity of the facts set out, are the averments sufficiently positive 108 MOTIONS AND RULES AT COMMON LAW. and explicit to support an indictment of the deponent for perjury? If the facts are or may be within the defendant's per- sonal knowledge, he should be held to a positive aver- ment; and even when his affidavit is upon information and belief it should be put into the established form, and made as specific and explicit as the nature of the curcumstances will reasonably admit. Loan Association v. Brown, 4 W. N. C. 494 (C. P. 3, 1877). The use of the phrases " verily believes to be true "" and expects to be able to prove " originated in cases, where the defendant was not able from the nature of things, to positively aver essential facts of his own knowl- edge and are allowable, for the purposes of his affidavit to .prevent summary judgment. Boomer v. Henry, 2 D. K. 357 (C. P. 2, 1S93, by Hare, P. J.) ; Pcnn Bank v. Wfg. Co., 4 D. E. 46 (Blair, 1894). Where the defence is in the nature of confession and avoidance, affidavit should specify amounts so as to give plaintiff opportunity to admit and take judgment for balance. Cosgrove v. Hammill, 173 Pa. 207 (1896). 4. If written instruments are referred to in the affi- davit they should be set out as exhibits. Brown v. Rogers, 3 W. N. C. 12 (C. P. 4, 1876) ; Hoorer v. Mun- yon, Id. 356 (C. P. 4, 1877) ; Richards v. Bisler, Id. 485, (S. C. 1877); Marsh v. Marshall, 53 Pa. 396 (1886);. Birkey v. Whitaker, 4 W. N. C. 137 (S. C. 1877). 5. The general subject of the sufficiency of the affi- davit is too large for present discussion, let us therefore pass over it with the single observation that the affidavit must set out facts sufficient to make a prima facie de- fence to the plaintiff's claim, and that it is sufficient if it does so. It must, however, meet the case of the plaintiff fairly,, MOTIONS AND RULES AT COMMON LAW. [QQ and by a statement of facts, not by a mere general denial. Thus, if defendant means to deny a Liability appearing on the copy filed, he must set forth explicitly in his alli- davit the facts on which his denial of Liability rests, as, e. g., that the signature purporting to be his is a forgery, etc.; merely saying that he signed no such writing, or that the signature is not his, etc., being insufficient, un- less the averments are full and broad enough to cover all contingencies, such as signing by another as his agent, or by his request, etc. K needier v. Woodruff, 1 W. N. C. 42 (C. P. 1874) ; Ephraim v. Pollock, 1 W. N. C: 102 (D. C. 1874) ; Starr v. Phil lips, 1 W. N. C. 471 (C. P. 2, 1875 ). 86 A defence good at the time of filing, however, is sutli- cient to prevent judgment, as, e. g., if the affidavit sets up another suit pending for the same cause of action it is sufficient, and a subsequent discontinuance of such 86 In his note (33) on page 57 of " Motions ami Rules in ( !om- nion law" Chief Justice Mitchell humorously comments on the then prevailing practice in the way of allowing defendants to " cobble " their affidavits of defence "Perhaps it was this liberality of practice, or the supposed present tendency of the Supreme Court to greater stringency against defendants on affidavits of defence, that produced the act of 18th April, 1874, P. L. 64, allowing writs of emu- to the refusal of a judgment for the insufficiency of the affidavit. For the principles by which the Supreme Court will be guided in such cases, see Griffith v. Sitgreaves, 2 W. N. C. 707 (s. 0. 1876)." "With the act allowing appeals from preliminary injunctions (vltli February, 1866, P. L. 28), that for appeals from decisions on rules to open judgment (4th April, L877, P. L. 53), and the act above referred to, we shall only n 1 a few more steps in the modern process of getting the carl before the horse, to reach that comfortable state where it shall be the rule to go to the Supreme Court at the outset, and gel the law settled in advance, and then come hack to the court inappropriately termed of first instance, and find out whether there are any facts in the case to whieh the law can be applied/' HO MOTIONS AND RULES AT COMMON LAW. suit will not entitle plaintiff to a judgment for want of a sufficient affidavit in this. G. The affidavit is conclusive, for the purpose of pre- venting judgment, upon all the facts properly set out in it, except so far as they are contradicted by the record. Even the original document cannot be looked at to con- tradict the affidavit, nor can any other paper (e. fj., a declaration of no set-off) unless a copy has been filed in accordance with the statute. Some doubt has existed whether the Court is confined to the record of the case itself, or may look into other matters of record in the same or even in other courts, and in Smith v. Hopple, 3 W. N. C. 27, (C. P. 4, 1876) the Court of Common Pleas No. 4 seems to have looked at the record of an- other suit to determine whether or not it was pend- ing, though the affidavit averred that it was. In that case, however, the affidavit itself referred to the other suit, and should have set out at least the docket entries, in accordance with the rule that writings referred to must be set out (ante, p. 107), and the case was there- fore well decided on the insufficiency of the affidavit in merely setting forth deponent's information and be- lief when the fact was easily capable of positive ascer- tainment and averment. The same remarks may be made in regard to Richard* v. Bister, 3 W. N. C. 485 (S. C. 1877). Both cases are, however, upon the border line. The sound and consistent principle is that the affidavit cannot be contradicted or shown to be false ex- cept by the record in the very case itself. It may, how- ever, be shown to be false by this record, including the copy filed. Warner v. Smith, 2 W. N. C. 107 (S. C. 1875) ; Furst v. Ayres, 2 W. N. C. 722 (S. C. 1876) ; Hill v. Gaw, 4 Pa. 493 (1847). 7. Supplemental affidavits were not allowed in the MOTIONS AND RULES AT COMMON LAW. m early practice, it being thought an unfair advantage, and perhaps an undue inducement to perjury, to tell the de- fendant what to swear to and then give him an oppor- tunity to bring his conscience up to it. It frequently happens, however, that points arise on the argument which had not been anticipated, and statements which seemed full and explicit to defendant are shewn by op- posite counsel or the court not to be so to others nol having his knowledge of the facts. Whenever it appears probable in such cases that there may be a good defence defectively stated (though not intentionally i<> delay the cause), the court usually, as a matter of grace, allows a supplemental affidavit, and the practice in this respect, as already said, is exceedingly liberal. The usual purpose of giving the defendant time to file a supplemental affidavit is of course to remedy de- fects pointed out in the original, but its office is not confined to that, and defendant may set up an entirely new and different defence. If he does so the court is bound to notice it, but such a course is justly open t<» sus- picion and requires a strict scrutiny of the new defence. ('alien v. Lukens, 7 W. N. C. 28 (S. ( \ L879). By an allowance nothing more is meant than that the court will suspend judgment (usually for a week), in order to give time to defendant to prepare his affidavit. A supplemental affidavit may, however, be filed as a matter of right, without obtaining leave of the court. at any time before judgment is actually entered. West v. Simmons, 2 Wh. 261; Bloomer v. Reed, l'l! Pa. 51 (1853). The court may, of its own motion, order a supplemental affidavit of defence. Johnson v. Fenner, 1 W. X. C. 172 (C\ P. 2, 1875). /•:. ff., where it sees that although in- artistically set out defendant has a meritorious defence. Boetner v. Stegmaier, .'} Kulp. 338 < Luzerne, L'885), but in Laird x. Campbell,92 Pa. 470, (1880) it is decided th.it 112 MOTIONS AND RULES AT COMMON LAW. a court while it has power to allow or even order the mak- ing - of a supplemental affidavit of defence it is without power to enforce the order. It is an open question whether our courts, in the earnest desire to execute sub- stantial justice, do not foster carelessness among the bar, by almost invariably allowing defendants a supple- mental affidavit, where the first one is such as to entitle plaintiff to judgment for its insufficiency. At the argu- ment on the rule for judgment for want of sufficiency of his affidavit of defence, defendant can see just wherein his affidavit is wanting, and it does not require much coaxing to fetch the average conscience up to making the affidavit necessary to delay the case to a jury trial. Where time for a supplemental affidavit has been al- lowed by the court but none has been filed, judgment for insufficiency of the first affidavit is not of course, but must be moved for. Conrad v. Rogers, 3 W. N. C. 157 (C. P. 4, 1876). The case having been partly argued is not transferred by the court clerk to the next list, but may be called up on any regular list on forty-eight hours' notice to the opposite counsel, and the court then re- examine the original affidavit on paper books, as in the first instance. But when the court has not specified the time for filing a supplemental affidavit the delay must not be unreasonable: Close v. Hancock, 3 Pa. Super. Ct. 207 (1896). Where a supplemental affidavit has been filed, and plaintiff's counsel deems it still insufficient, the same course is to be pursued of bringing the case up on call. The paper books in such case should contain both the original and the supplemental affidavits. Just what the scope a supplemental affidavit of de- fence may take is not susceptible of adequate discussion here, but the Supreme court held in Callan v. Lukens, 89 Pa. 131 (1879), that it may set out an entirely new or at least a different defence from that set up in the original. MOTIONS AND RULES AT COMMON LAW. H3 See also Slag Works v. Krause, ."> Pa. Super. Court, 622 (1897). An important effect of a supplemental affidavit of defence is, that if it be riled after issue joined, plaintiff may not take a rule for judgment for its insufficiency. Hoke v. Martin. 7 York, Leg. Record, »•.."> I York, 1893). As has been stated, if plaintiff lias properly served his copy of statement and rule to rile affidavit of defence sixteen days after — or rather fifteen entire days having elapsed — lie may on motion in the prothonotary's office take judgment by default. But in eases where no a Hi- davit of defence is required — e. g. } suit on official bonds — if an affidavit be filed judgment cannot be had for want of its sufficiency. Bartoe v. Guckcrt, 158 Pa. 124 (1893). 8 114 MOTIONS AND RULES AT COMMON LAW. X. Rules for judgment for want of an affidavit or sufficient affi- davit of defence. And this leads us to a necessarily brief discussion of the rule to show cause why judgment should not be entered against defendant for want of a sufficient affi- davit of defence. This rule occupies more space in the lists, is more important in its results and raises more questions of law for argument than any other rule in our present practice. But it is not feasible in this work to do more than to touch, in a general way upon the leading points of practice in regard to it, especially such as are not easily accessible in the books at the present time. Judgments for want of an affidavit of defence origi nated in an agreement of the Philadelphia Bar entered into on September 11th, 1795. (See note, which con- tains a copy of the document itself, by Judge Carr to the report of the cases of Detmold et. al. v. Gate Vein Coal Co. and Same v. Fisher, 3 W. N. C. 567 (U. S. D. C. E. D. of Pa. 1876). They were soon after authorized by the rules of the Philadelphia County courts and subse- quently having received legislative sanction in the acts relating to the District Court, eventually became uni- MOTIONS AND RULES AT COMMON LAW. j j ;, versal throughout the commonwealth. In the early stages of the growth of the practice there was much diversity of opinion in the Supreme Courl arising, of course, from the fact thai many <»f the Justices of that Court were not accustomed to the practice, bul even though there was much reluctance to adopt it on the part of some of the members <>f the court, the general trenced of sentiment was favorable to it. Take as an in- stance the final paragraph in Mr. Justice Cordon's opinion in the case of Bardsley v. I>< Ip, ss Pa. -li'O (1879), (a writ of error to the Court of Common Pleas No. 1 of Philadelphia) which reads: " If, indeed, the de- fendant, by this ambiguous wording meant that the plaintiff had taken it as collateral security for a pre- existing debt, he should have said so. If he has qoI been able to make out a prima facie case for himself, we can- not help him by inferences drawn from obscure language which he bw a word or two might have made plain. If a defendant, when he has the stand to himself, cannot make out a case in his own favor, it must be because he has none, and he ought not to ask a court to patch up a case for him." This embodies the true rule upon which the courts have settled. The difference between skilful evasion and mere inadvertence or failure to foresee the precise point of objection, is not always easy to determine, but it is always less difficult in the court of first instance which has the materials before it in a plastie state, than afterwards when they have hardened into judgment, and are brought forward as an exhibit in print. There is seldom an instance where counsel, who is met with a really unexpected objection to his affidavit, and has been willing to state that he is un-insl ructed, or even that he has reason to believe that he can remedy the defect, has been refused an opportunity of doing so by a supplemen- tal affidavit. Where, therefore, the defendant has had a 116 MOTIONS AND RULES AT COMMON LAW. second opportunity, with the deficiency pointed out to him, and fails to make a satisfactory defence, we may well conclude in the words of Justice Gordon, that " it must be because he has none; " and in the present prac- tice of this country, where no leave for a supplemental affidavit has been granted, it may safely be assumed that it was because counsel have not been willing to say that they could essentially fortify the affidavit already filed. 86 Plaintiff must avail himself of his right to this rule promptly and before he takes any step in the case other- wise he will be taken to have waived his rights. O'Neal v. Rupp, 22 Pa. 395 (1853). But unless the statement of claim is complete, accurate and precise, judgment will not be rendered for the insufficiency of the affidavit of defence, if for example the action is in quantum meruit and there is no averment that the price sued for is fair, or usual or that the value of the services for which recovery is sought is of the ordinary standard, the case must go to the jury : Murphy v. Taj/lor, 173 Pa. 317 (189G) : see also the opinion of Mr. Chief Justice Sterrett in Byrne v. Hayden, 124 Pa. 171 (1889). MOTIONS AND RULES AT COMMON LAW. iy XL Rule for judgment for part of claim. The Act of May 31, 1893, P. L. 185, permits plaint ill* " to take judgment" for the part of his claim to which defendant has not filed an affidavit of defence, the act does not specify how the part judgment shall be taken. In this county the practice is to take a rule to show cause why judgment should not be entered for Plaintiff for the amount admitted to be due. It is the practice elsewhere to take the judgment in the Prothonotary's office. The Act has been held to apply only to cases where I he defendants specifically admits a certain amount due, or at all events makes such admission that the amount tan be readily liquidated, irrespective of contents as to par- ticular items of an account which are in dispute. Den,- sem et a!, v. Keily, 3 I). R. 339 (C. P. 2, 1894 ) ; Scranton v. Hall, 3 Lack. L. X. 99 (189G). Under this Act plain- tiff may have judgment upon that pari of an affidavil of defence which is insufficient, and proceed as to that part of his claim to which it is adequate to prevenl judgment Cobom v. Reynolds, 14 Pa. C. C. 157 (Warren, L894). But it is doubtful whether Plaintiff could prevail in a rule to withdraw from his statement a part of his claim, without prejudice t«> proceed for the balance Hill v. Ritter,9W. N. C. 574 (C. P. 3, 1880). Unless the state- ment consists of severable claims. Richard* v. Bieler, 3 W. N. C. 485 (S. C. 1S77). 113 MOTIONS AND RULES AT COMMON LAW. XII. Rules to open or to strike off judgment. The rule to open judgment and let defendant into a defence is peculiar to Pennsylvania practice, and is a clear example of our system of administering equity under common-law forms. By long practice and common understanding it is con- fined to judgments by default, and those entered on war- rants of attorney to confess, etc. It was, however, in- vented in the absence of a court of chancery, as a substi- tute for a bill in equity to enjoin proceedings at law, and in Cochran v. Eldridge, 49 Pa. 365 (1865) (in which a judgment upon an award of arbitrators, in an adverse proceeding, was opened), Chief Justice Woodward, re- capitulating the famous contest between Coke and Lord Ellesmere, asserted in explicit terms the right of the courts of Pennsylvania to exercise in this form all the powers of a court of chancery to relieve against judg- ments obtained by fraud. And see Dorney v. Mertz, 8 Phila. 553 (C. P. Lehigh Co. 1871). Notwithstanding this decision, however, it has not been usual to exercise equit- able jurisdiction in this form, except as already stated over judgments by default, or by confession on warrant of attorney, and it is not likely that a more extended practice would be encouraged since the grant of equity powers, which are ample and afford some facilities for the protection of the rights of parties which the common- law procedure does not, and especially since it has been held that an application to the court to open a judgment MOTIONS AXD RULES AT COMMON LAW. UQ is not a bar to a subsequent bill in equity for the same re- lief. Wistar v. McManes, 54 Pa. 327 i lsr,7). ST When the application is addressed to the equitable power of the Court to permit a defence to a judgment regular on its face, the proper remedy is to open. .1/ UU r V. Glass Works, 172 Pa. 70, (IS!).")) i bul as this admits the validity of the judgment and if this is to be attacked the rule should be to vacate or set aside the judgment. H uber v. dross wan, 14 W. X. C. 157 (C. P. 1, 1883). It seems that the Common Pleas has no power to open a judgment entered on the transcript of a .Magistrate, but may stay execution of it. Singer v. Singer Co., '2 Pa. C. C. 578 (Carbon, 1886). A judgment entered on a verdict after a trial or upon a hearing, e. g. } for want of a sufficient affidavit of de- fence, cannot be opened after the term at which it is en- tered. Hill v. Egan, 2 Pa. Super. Ct. 500 (1800). But there is no limit of time within which a judgment by default can be opened, except, that here as well as in other cases of equitable relief delay amounting to laches will bar the party applying. Vanline v. Finney, 1 W. N. C. 8 (D. C. 1875) ; Citizen's Trust Co. v. Goodchild, 195 Pa. 80 (1900). There is no authority for opening a judgment of non- suit; Liebrccht v. Insurance Co., 1 W. X. 0. $4 (Phila. 1875). It must be remembered thai when the rule is al- lowed or if it be made absolute that the court will make 87 The opening or refusing to open a judgment being matter of discretion, lias been held not to be reviewable on writ of error (except in cases of excess of authority; Huston v. Mitchell, 11 S. & R. 310; Catlin v. Robinson, 2 Watts. :;;:•>). Inn do* bj the act of 4th April, 1877 the unsuccessful party may appeal. The effect of this statutory extension of (lie remedy by rule, on the question of barring a subsequent hill in equity for the same matter, ami consequently on the practice, cannot, perhaps, be safely predicted. 120 MOTIONS AND RULES AT COMMON LAW. some order in protection of intervening rights ; Kalbach V. Fisher, 1 Kawle, 323. Indeed the rights of third parties will be considered in disposing of a rule to open judgment; Vandcrpocl v. Vanderpocl, 162 Pa. 394 (1894). The rule may be made absolute on terms, and where execution has been issued, it is usual for the court to make some order respecting it. Unless so ordered, the rule does not of itself stay proceedings ; Spang v. Com- monwealth, 2 J. 358 (1850). The grounds upon which the rule is founded are, of course, as varied as those of bills in equity, and as in equity, each case must stand upon its own peculiar merits. A discussion of even the principal and most frequently-occurring cases would extend this treatise far beyond its limits, and they must be passed by with the remark, that in general the application is based on fraud, imposition, or mistake, in the execution of the in- strument on which judgment is entered; failure of the consideration for which such instrument was given; wrongful use of the judgment where it was intended for security only; and in cases of judgments by default, ac- cident, ignorance, or other unavoidable cause by which a meritorious defence has failed to be presented in proper time. The rules which, next to those just dis- cussed, occupy the most space in the lists and whose im- portance therefore require some special, though neces- sarily brief mention, are those to open and strike off, or, as it is sometimes expressed, to set aside or vacate, judg- ment. MOTIONS AND RULES AT COMMON LAW. 121 Rules to open or to strike off judgment. 1. These two rules are usually treated together, and indeed they are used and spoken of in the reported de- eisions interchangeably, with hopeless confusion. Bui there is a wide and fundamental difference between them, which is thus tersely and authoritatively expressed in a very recent case by Chief Justice Sharswood : " A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court to let the defendant into a defence." O'Hara v. Baum, 82 Pa. 41G (1876). 2. This distinction had previously been pointed out more or less clearly (especially by the same learned judge while President of the District Court. D< vereux V. Roper, 1 Tr. & Haly, GG2 n. ; and by Judge Hare in the same court ; Dc Crano v. Musselman, 7 Phila. 211 ( I). C. 1870) ; and see Homer v. Horner, 3!> Pa. 126 1 1S61 i ; Humphreys v. Rairn, 8 W. 78) ; but, as already said, the cases have treated the two rules as if they were the same. A notable instance is to be found in Knox v. Flack, 22 Pa. 337 (1853), where the Supreme Court reversed a perfectly regular judgment because the courl below had discharged a rule to strike it off on the ground of r. 21 Pa. 295 i 1854), (a case on the border line), delivered a dissenting opin« 122 MOTIONS AND RULES AT COMMON LAW. ion, in which the true principles are clearly and most forcibly stated, and yet in Hutchinson v. Ledlie, 36 Pa. 113 (1860), he summarily took it all back, and referred to the opinion from which he had dissented, as showing " convincingly " that courts have power to set aside judg- ments " for causes appearing on the record, and also for causes that may be made to appear by evidence." In that case, however, judgment had been entered on a bond and warrant given in the firm name by one partner only. The irregularity, therefore, appeared on the record, and the case was rightly decided. It is referred to only to show the confusion in the language used by an eminent judge to whom the true principles were undoubtedly familiar. In Knox v. Flack the fact of infancy was un- disputed, and the judgment was therefore void, and the difference in the form by which it was got rid of, whether summarily struck off by the court, or opened and a ver- diet rendered for defendant, was practically unimport- ant, and the distinction was not present in the mind of the court when expressing its decision. The same may be said of Martin v. Rex, 6 S. & K. 296, where a judgment was struck off because the warrant on which it was en- tered had previously been exhausted by the entry of judgment on it in another county; of Gordon v. Bartley, 4 W. N. C. 37 (C. P. 1, 1877), where it was admitted that defendant was dead at the time of entry of judgment; and perhaps of other cases that appear to be in contra- vention of the rule. Had the facts in any of these cases been disputed, the form of the rule would have become material, and there is no doubt the courts would have observed the proper distinctions. Whether or not, however, all the cases can be recon- ciled with it, the rule as stated by Chief Justice Shars- wood in O'Hara v. Baum, above quoted, is the true and settled rule, and will always be enforced when the at- tention of the court is directed to it. MOTIONS AND RULES AT COMMON LAW. lL >3 II. To strike off. 3. The rule to strike off judgment is essentially a common-law proceeding, a short and summary substi- tute for an audita querela, a writ of error coram vobis, or a certiorari or writ of error from a superior court, by which the same relief was formerly administered. It cannot be combined with an order to open the judgment Reynolds v. Supreme Conclave, i) D. R. 022 ( Lancaster, 1900). 4. Being for irregularity apparent on the face of the proceedings, it is in the nature of a demurrer to the record, and is not confined to any particular kind of judgments, nor limited as to the time it may be taken advantage of, nor affected by matters dehors- the record, except so far as defendant may have put himself in posi- tion to be estopped from making the objection. Exam- ples of its appropriate use may be found in Scott v. Wil- mer, 1 W. N. C. 41 (D. C. 1874) ; Scott v. Loin/Inn/. ('» W. N. C. 123 (C. P. 1, 1878), and Stadelman v. Penna. Co., Id. 134, where judgments had been improvidently entered for want of affidavits of defence, in cases not within the law; in Tobias v. Dorse,/. 2 W. X. C. L5 (C. P. 2, 1875), where the record showed on plaintiff's sug- gestion, that defendant was dead at the time judgment was entered; and in Rothenhausler v. Rotherikausler, »> W. N. C. 560 (C. P. 2, 1879), where the record showed a judgment entered by default while an order slaying proceedings was still in force. It is to be noted that the reversal of an order of the Common Pleas striking off a judgment is not res ad ju- dicata as to subsequent proceedings in the lower court to open the judgment and let the defendant into a de- 124 MOTIONS AND RULES AT COMMON LAW. fence on the merits ; American Mfg. Co. v. Smith Co. r 28 Pa. Super. Ct. 124 (1905). 5. As already said, this rule occupies a very large portion of the time of the courts on motion days. " Final judgments," says Blackstone, " are such as at once put an end to the action by declaring that the plain- tiff has either entitled himself or has not, to recover the remedy he sues for." Doubtless if the learned commen- tator were to spend a few Motion or Argument list days in our courts, he would be apt to think that by some strange perversion, judgments had come to be only the beginning of most actions. The practice of this county in this respect is extremely liberal, not to say loose, and has been frequently expressed as rule absolute whenever the defendant makes out a fair conflict of evidence for a jury. This rule, eminently proper for cases of default, promptly and fully excused, has, been pushed to such ex- tent in other cases, especially since the acts allowing parties to testify, as to have become a positive abuse. A defendant who has only enough evidence to produce a fair conflict, ought not to prevail against a plaintiff who has also evidence amounting to a fair conflict plus the written instrument. The tendency of Pennsylvania law to reduce the rank of written evidence by allowing it to be freely contradicted (a tendency perhaps unavoidable in the absence of a court of chancery), is in danger of running wild, and should be stayed. The reason for its introduction no longer exists, and since parties have been made witnesses, its dangers have been increased many fold. The true rule, to which the courts must ultimately come, is that the defendant should show such a predonderance of evidence that a jury ought, and probably would, find in his favor. See the opinion of Dana, J., in Philbin v. Davinger, 29 Leg. Int. 325, and that of Meyers, P. J., in Wilson v. Leinbach, 6 MOTIONS AND RULES AT COMMON LAW. J05 6 W. N. C. 483 (Northampton, 1879); Early's Ap- peal and Hockernell v. Fleckenger, 7 \Y. X. C. 515 (S. C. 1879) ; Knarr v. Efgrrew, 19 \Y. X. C. 531 (S. C. iss; > ; Jenkintoum Bank v. Fulmer, 124 Pa. 337 (1889). It hardly need to be said that in the striking off a judg- ment only defendant can have the rule, and in opening while this is not always so, yet the petition for the rule must be very specific in the allegations of interest of the party asking for the rule or, rather, as it is said in Creighton v. Scranton M'fg Co., 191 Pa. 231 (1899) ■" the averments * * * must establish a prima fade case for the relief asked:" see also, Cutler v. Magraw, 10 I>. R. 146 (Crawford, 1900). A mortagee or a plaintiff in execution who purchases the land levied on and sold un- der their judgments having purchased the same at the sheriff's sale at a price less than that which satisfy their claims, may attack any judgment undischarged by the sale if the defence set forth in the petition for the rule to open a judgment and to intervene is meritorious. And note that, even as to a judgment entered by default on a record faulty on the face the rule of a stranger must be to open and to intervene. Although junior judg- ment creditors have no standing to have a judgment opened of prior lien to them, Forbes v. Adams, 17 Phila. 222 (C. P. 3. 1885) ; an allegation of fraud in the petition for the rule will cause the court at least to entertain the application ; Campbell v. Kent, A P. & W. 72; Lewis v. Rogers, 1G Pa. 18 ( 1851 ) ; Clark v. Douglas, G2 Pa. 408 (18(59). A rule to open will not be granted when the gist of the defence is the statute of limitations; Woods v. Inrin, 141 Pa. 27s (1891), the application being to the equitable power of the court it must show a meritorious claim not a technical defence especially BO if the defendant has had his opportunity to offer that defence. The most, numerous instances of the rules will be Ijij MOIIONS AND RULES AT COMMON LAW. found in judgments entered by virtue of warrant of at- torney and it may be said, that the courts are well dis- posed towards applications in these cases; the defence to such judgments nearly always bear the features of injury done. In Muller v. Schenck, 94 Pa. 37 (1880), a judg- ment was entered by virtue of a warrant of attorney at- tached to a promissory note, known as a "judgment note," to stay an impending execution defendant exe- cuted and delivered plaintiff's other notes of similar form, upon which judgment was entered; defendant sought relief from the later judgments on the ground of fraud in the first, but his rules could not be made abso- lute because, by giving them he was estopped from de- fending against the first. His right course would have been to ask for a rule to open the first judgment to make the defence and for a stay of, or to set aside the pending fieri facias. A judgment confessed on a warrant of attorney in- corporated in a form of lease which stipulates that the lessee will not apply for an opening of a judgment if en- tered, cannot be opened at the instance of a sub-tenant, because he is bound by the covenants of his lessor in the lease under which he claims ; Gucnthcr v. Gilchrist, 28 Pa. Super. Ct. 232 (1905) . It is a matter of importance that the rule taken should be appropriate in form to se- cure the relief asked. A rule involving a defence on the merits should be to open, not to strike off and yet, in a recent case a judgment was entered on a warrant to con- fess, to which the defence was, that an essential condition of the right to exercise the warrant was unfulfilled, a condition which could not possibly appear on the face of the record and, even if it did, was in no sense a legal ir- regularity, we find this essential difference overlooked by the lower court and waived by the appellate tribunal both of which decided the case on its merits, rightly as far as the result was concerned, for the rule was dis- MOTIONS AND RULES AT COMMON LAW. [27 charged; Singer v. sheriff et. al. } 28 I'a. Suiter. Ct. 305 (1905). The validity of a judgment may not be assailed on a rule to stay a /?en facias unless the prayer to open be a part of the rule. Anderson v. Wordsworth, 1 Lack. L. N. 264. A rule to open judgment may be made absolute as i<> part and discharged as to part. Ansley v. Ami . :\ Kulp, 152 (Luz. 1881). As to the time within which a rule to open should be asked, it seems that there is no lapse of time to the ex- ercise of the power of the court over judgments entered by default or confession. King v. Brooks, 72 Pa. 3<*>3 (1872). 128 MOTIONS AND RULES AT COMMON LAW. XIII. Rules relating to Mechanics' Liens and Municipal Claims. 1. Mechanics' Liens and Municipal claims are estab- lished in our system of jurisprudence by what may fitly be called artificial and unnecessary legislation. With regard to the former the report of the Committee on Law Reform of the Bar Association, (Fifth Annual re- port of the Pennsylvania Bar Association p. 27) gives as the judgment of the Committee that the ends of jus- tice would best be served by a repeal of all laws relating to Mechanics' Liens. The legislation in respect to Me- chanics' Liens at present is a development of the Com- mon Law right of an artisan or mechanic to a lien on his work for compensation, this right existed in all kinds of handicraft and was enforced by possession or if this which were delivered to him at whose instance it was fashioned before payment, an action of trover would lie for its return as well as debt to recover its value. Prob- ably because in most instances the articles made were for use in the construction of dwellings or places where business was conducted, and were furnished in their con- struction, that the lien followed the article into its place. Thus the lien was extended to the whole building, and was given a tangible form in the way of recording or fil- ing it in the court office and the law was formulated so that we find tradesmen whose calling was in furnishing items in the sum of building are protected, while none others, not even those who work up the raw material that goes into such constructions are. The exact reason for MOTIONS AND RULES AT COMMON LAW. 109 this favoritism is difficult to sec, the more so, because in the course of trade development, we find corporations, and limited partnerships, having for their object the man- ufacture of house building material enjoying the fruit of the application of a principle established and pursued for the benefit of individual mechanics dependent on their hands for their daily life. 2. It does not require extended argument to prove the righteousness of the opinion of the Pennsylvania Bar Association as to the advisability of repealing Mechanic's Lien laws. It is a species of class legislation and mighl he reasonably attacked on that ground, but having run the gamut of nearly a hundred years we must ac- quiesce in the judgment of the Law Reform Committee that it has "come to stay.'" But it is not too much to hope that the century of experience with this most par- ticular of " special Legislation " — some sixty acts of as- sembly being found necessary to give the principle po- tency — may not far off lead to its being legislated to the " scrap basket." 3. It may, moreover give us some difficulty to explain why this legislation does not come under the consti- tutional inhibition, expressed in Article III. sec. 7, par- ticularly since Judge Sulzberger's convincing opinion in Tennessee Producers Marble Co. v. Grant et ah, 14 I). R. 453 (C. P. 2, 1905), where he held that the sec- tion 28 of the Act of June 4, 1901, ( Mechanic's Liens i was unconstitutional as an attempt by special legislation to provide and change "the method of collecting debts." The whole statute would seem to be open to the same criticism. It offers opportunity for merrimenl to ob- serve that the same protection which was afforded by the common law to the hard working blacksmith or stone- cutter for the return of his labor, has been extended b.\ intricate confusing legislation and decisions to incor- porated manufacturers and "prosperous" partnerships, 9 130 MOTIONS AND RULES AT COMMON LAW. the blacksmith and stonecutter, and all other trade fol- lowers being to all intents and purposes, left to play with the shell of the right once their own. 4. Legislation establishing Mechanic's Liens in our juris- prudence began with the act of April 16, 1803, P. L. 591, but the basic law, at least so far as the practice is con- cerned, is the Act of June 16, 1830, P. L. 695. Chief Justice Gibson's opinions in Mclntyre v. Warner, 2 W. & S. 392 (1811) (the first case in the books which treats of the subject) is interestingly instructive. The last legislation is the Act of June 4, 1901, P. L. 431, which was suggested by the Pennsylvania Bar As- sociation at its Annual meeting in 1899; {Vol. v. An- nual Reports of Pa. Bar. J_.s-.so.,) and passed somewhat as formulated by the committee of Law Reform of that body. It is a codification of the laws under which our practice in this branch of the profession has developed and if it has done no other good it has repealed all of the heterogeneous and conflicting laws which were in force up to the time of its approval. 5. Rules arising from this class of cases are for the most part directed against some technical informality or fail- ure to conform to the requirements for being purely statutory compliance with statutory requirements is necessary to give it validity; Knelly v. Hoicartli, 208 Pa. 487, (1904) : but in taking such rules, which may be done at " any time,'' scan sec. 59 of the act, sec. of Act of June 4, 1901, P. L. 431, sec. 59 (Mechanic's Liens). 6. A lien is defective on its face when it fails to particu- larly set out the contract under which it claims, and quantity of articles or materials furnish. Howard v. Allison, 12 D. R. 117 (Venango, 1902). This defect is doubtless curable by amendment but where the notice by a subcontractor to the owner is not filed within three months after the work is done or the last of the materials furnished by him which he contracted to furnish the MOTIONS AND RULES AT COMMON LAW. [3] chief contractor for the work the lien is fatally bad. Stover v. Folz, 13 D. R. 636 i Franklin, 1 '.mm i ; U olf Co. v. /'. R. R. Co.; Collins v. Same, [bid. 701 (C. P. L, L904 |, For the failure to give proper preliminary notice can- not be amended; Think v. Evans, 211 Pa. 239; see also Lofink v. Schuette, 14 D. R. 558 (C. P. Allegh. L905). A claim is also fatally had when the extent of the estate against which it is tiled is not stated as required by sec- tion 11 of the act; Maddocks v. Medium, 12 D. R, 701 (Lackawanna, 1902). The lien is had, if when the con- tract is not with the owner or not for an agreed sum a copy of correspondence developing the contract is substituted for the " detailed statement of the kind and character of the labor or materials furnished " as required by the same section paragraph 0; King v. Church. 14 D. K. 205 (C. P. 3, 1905). The notice re- quired l»y section 21 to be given by a contractor to the owner after he has tiled a lien, applies to a suh- contractor and the claim is bad without this appear- ing; Compton v. Sankey, 13 1). R. ~u>~> ( Dauphin, L903). In the matter of amendments allowed by section 51, it may be broadly stated the amendments contemplated by the section are those as to form of the lien, and they may he had even after the time within which a lien may be filed has expired; Hoover v. Lebo, 14 D. R. 238 (Clear- field, 10()r>); appeals may ho taken from the action of the court upon rules to show cause why a lieu should not be stricken off if the order or judgment he definit ive or final hut a rule "to show cause why an attorney should not enter an appearance and si like oil" (sic.) a mechanic's lien is not "a definite judgmenl or decree" from which an appeal will lie; Kurrie v. Cottingham t 200 Pa. 12 1 100 1 1. AH the instances mentioned are suh- joets of rules to show cause why the lion should QOt be struck off ami are of course, and even if judgment by do- fault he entered on the lien the rule would slill he of 132 MOTIONS AND RULES AT COMMON LAW. course, but should take the form of " to show cause why the judgment entered should not be vacated and the scire facias" where one has issued, upon which judgment has been entered quashed. After judgment has been entered upon a scire facias sur claim if defendant — or a terre- tenant has a defence on the merits. As for example to the character of the work, cost, etc., an allocatur must be sought and the rule be to open the judgment. 7. The test of the strength of rules of this kind is, is the reason of the rule such as would constitute a valid defence to a scire facias which if established by proof, either by inspection of the record or by verdict, w r ould entitle defendant to final judgment. As a general rule, no objection to the scire facias sur claim can be made by way of defence to a scire facias in revival of a judg- ment entered thereon, but if the defence is to the legality of the scire facias sur claim itself and is raised by a party of right the court will entertain it. II. Municipal Claims. 1. In respect of Municipal Claims as little can be said in justification of the legislation which has been perpe- trated in their interest as in Mechanic's Liens; perhaps indeed not as much for a municipal claim arises from the inherent right of government to tax the owner of the ground subject to the lien, and to enforce payment from all citizens. The basis of taxation of course is naturally land, and for the support of the local municipality the ratio of taxation is established by the value of the tax- able real property which must also in every case of im- provement be the measure of the proportion he must pay as his share. The right to assess and the duty to pay can be easily established, the tax is fixed and remains so MOTIONS AND RULES AT COMMON LAW. [33 until it is paid, needless then the more than fifty laws passed on the subject since the Act <>f .March 28, L81 1. See Law 223. All of which are responsible for the con- flicts of decision, on the subject so forcefully set out in the report of the Committee of Law Reform at the An- nual Meeting of the Pennsylvania Bar Association of 1900. See Vol. VI. of Proceedings of Penna. Bar Asso- ciation, page 21. But it is not the province of this book to proceed the discussion on these lines as are developed in the legisla- tion and it is to the practice under it we must confine our- selves, so that, with expressing the belief that a far less complicated system of enforcing municipal claims of all kinds could be, and ought to be, adopted we proceed to the discussion of the rules which prat ice has developed. 2. Rules relating to municipal claims are of two classes those which attack the validity of the claim for irregu- larity in the lien itself apparent on the face of the record and are available at any stage of the proceedings, and those which are directed against the lien on account of error in the claim not apparent on the face of the record, e. (/., misdescription of the property, naming as defend- ant one who is not the registered owner of the property when either the lien is filed or at the time the scirefacias issues, in the two last named instances the rule is not of course, but must be allowed upon a petition verified by oath which must precisely state the petitioner's whole case. All instances of irregularity in the claim, mis- description or giving the wrong person as defendant are of course available by affidavit of defence, but practi- cally, one who is not interested in the land is not apt to trouble himself to make an affidavit of defence particu- larly as a judgment by default is not in personam. Therefore, it behooves an actual and registered owner to move to he admitted to tin- record to take the rule Qeces- 13 J: MOTIONS AND RULES AT COMMON LAW. sary to free his land from the cloud of an imperfect lien or a wrongful judgment. 3. A good example of what is such irregularity on the face of the record as will permit a rule to show cause why the claim shall not be struck off is found in the case of Connellsville v. Gilmore, 15 W. N. C. 343 (S. C. 1884). The lien was filed for the expense to the Borough in re- moving an obstruction in the highway upon which de- fendant's property abutted, the defence was that the claim did not contain an averment of service of notice on defendant to remove the obstruction. The court below made absolute the rule and the Supreme Court affirmed. The opinion was by the late Chief Justice Paxson who, after calling attention to the fact that the amount in- volved in the case was $4.44, remarks : " The maxim de minimis non curat lex does not appear to prevail in this State." This same rule was available in Phila. v. Han- best, 15 W. N. C. 349 (C. P. 4, 1884; where no aver- ment was made in the claim that the preliminary notice to the owner of the land to do the curbing, to recover the cost of which the lien was filed. To cite examples of what irregularities on the face of the record will result in the summary removal of the lien from the index and the numerous authorities therefore would extend the dis- cussion to the limits of weariness, so it is sufficient to say broadly that any failure to comply with the mandates of the law then in force at the time the right to file the claim accrued and under which it was filed either in form or as to time of procedure is death to the claim by a rule to strike off. The entry of judgment on the scire facias or even after revivals of the same, a rule to strike off will prevail. A defence to the form of or failure in some es- sential statutory requirement is never too late where the party claiming protection of the statute never had op- portunity to present it; City v. Nell, 25 Pa. Super. Ct. 347 (1904). And indeed it inav be stated that even the MOTIONS AND RULES AT COMMON LAW. 1;; -, apparent neglect of a land owner in sleeping on j,j s rights and penalty the claim to get to judgment will net give it force for as Judge Arnold remarked in Phila. v. Hanbest, (.supra). "A valid judgment can never be entered on the claim." But there is an exception to this proposition, if a claim be good as to pari but had as to part, and defendant has had his day in court without ma- king his defence so that a default judgment is entered, a rule to strike off the judgment— a very questionable rule in such a case, at any rate — will be discharged be- cause the judgment is the sum of all the items of the claim some of which were good; Phila. v. ^Yal1acc, 7 D. R. 721 (C. P. 1, 1898). 4. Failure to issue or prosecute to judgment a scire facias within five years (prior to the Act of 1897) are other examples of fatal faults in the record. Phila. v. Reeder, 13 D. R. G14 (C. P. 2, 1901). As an example of the rigor with which this principle maintains look at Hunter v. Lanning, 72 Pa. 25 (1872), there the omission was actually induced by defendants attacking the claim and yet the claim was held invalid because it was not re- duced to judgment within five years from filing. Where the scire facias sur claim has issued too late a judgment entered thereon is wholly void and would not sustain a valid execution. The proper rule is to show cause why the scire facias should not be quashed, judgment vacated and all subsequent proceedings set aside. Cases in the line of Simons v. Kern, 92 Pa. I".; Phila. v. Cooper, 212 Pa. 306, imperfect execution of the scire facias; of Phila. v. /Hester, 1 12 Pa. 39, issuance of scire facias after the lien of the claim had expired; may be added to the foregoing as types of the prevailing ones under the authority of which rules are taken. 5. A further function of rules in general, is applied in Municipal claims, where interpretations of Hie meaning of a statute is obtained; an example of this is found in 136 MOTIONS AND RULES AT COMMON LAW. Phila. v. Sciple, 12 D. R. 582 (C. P. 2, 1903). The Act of July 26, 1897, P. L. 420, while requiring a scire facias " to revive and continue " the claim to issue within every five years of the duration of the lien exempts the thith- erto essential under the Act of April 16, 1840, P. L. 410, of entering a judgment on the revival, the mere issue of the scire facias being sufficient. To the scire facias sur claim defendant filed an affidavit of defence which the plaintiff did not attack nor took any further steps until within the five years there current where a scire facias to revive the claim, as provided by the statute went out. Defendant took a rule to show cause why this writ should not be quashed on the ground that he had offered his defence to the claim. The court made the rule absolute, holding (Wiltbank J.) that the act con- templated only undefended claims and that where an affidavit of defence has been made to a scire facias it must be disposed of before another writ can be obtained. 6. In rules in Municipal, and for that matter, Me- chanic's Liens also, it must be remembered that while this class of claims are dependent for their validity upon their adherence to the requirements of the statutes which give them standing yet this very condition appeals to the equitable sense of the courts, and the petitioner for the rule had better be equipped with some meritorious de- fence if he hopes to get rid of an obnoxious claim on a mere technicality. The importance of strictly observing the statutory re- quirements in pursuing a municipal claim will be recog- nized when it is remembered that unless this be done the judgment will not sustain execution and the purchasers at a sheriff's sale under a levari facias on the judgment will take no title; Simon v. Kern, 92 Pa. 455. There is neither space nor occasion to comment at large on the difference between such error in the proceedings as is cured by judgment and such a judgment will not rem- MOTIONS AND RULES AT COMMON LAW. [37 edy, but in general it may be stated to be tin- law, that the mandates of the act which gives the right to lien for the claim which relate to proceedure, such as notice to the proper party and service of writs must be followed without any deviation, to preserve a title giving power to the judgment on the claim. But this only if there has been no neglect of the defendant in the performance of his part under laws to which he as a property owner is subject. Laches will prevent the prevailing of an oth< 1- wise good defence: Phila. v. Unknown, 20 Pa. Super. Ct. 203 (1902) ; but it is a question whether a too much belated attack upon a municipal claim validates the judg- ment on the claim to the extent of sustaining an ex< cu- tion sufficient to give good title. 138 MOTIONS AND RULES AT COMMON LAW. XIV. Rule to set aside sheriff's sale. A few words on the rule to set aside a sheriff's sale must conclude our subject. 1. Notice of this rule must be given to all the parties interested, that is to plaintiff, defendant, sheriff, and purchaser. This last is frequently overlooked, but is essential, as by his bid the purchaser has acquired an inchoate title, of which he cannot be divested without opportunity to be heard. 2. It was the settled practice, established in the Dis- trict Court and followed by the present Courts of Com- mon Pleas, though not made a rule of court, that on the hearing of a rule to set aside a sheriff's sale for irregular- ity in posting bills, etc., the deposition of the sheriff's billposter is a necessary part of the testimony. The evi- dence on the point of omission to post, etc., is not only commonly interested, but is almost always merely nega- tive, and experience has shown how often it is unreli- able. The testimony of the billposter, therefore, as that of the person whose duty it is to be informed on the ques- tion, and as in most cases the only affirmative evidence attainable, must always be taken, not as necessarily con- clusive, but as an indispensable part of the evidence to which the court is entitled. MOTIONS AND RULES AT COMMON LAW. [39 3. Another point of practice, under this rule, in con- nection with the rule to set aside execution which is com- monly joined with it, also settled and regarded as equiv- alent to a rule of court, is that after the sheriff's ad- vertisement has begun, or any of the expenses of the exe- cution incurred, no stay of proceedings shall he granted with the rule until after the sale. Where the cause al- leged is such that the judge allowing the pule can see from the record that the record is fatally irregular this practice is occasionally departed from, hut only in very clear cases. The reason of the rule is obvious; the ex- penses of advertisement are usually considerable, and after they have been partly incurred it is better that they should go on to completion, for if the rule is discharged then the expenditure has not been lost, and the plaintiff has not been delayed; while if the rule is made absolute, the whole matter, being inchoate until delivery of the sheriff's deed, remains under the control of the court. After the sale, however, the acknowledgment of the sheriff's deed will always be stayed pending the hearing of the rule. 4. The rule to set aside a sheriff's sale should he ap- plied for promptly; Young v. Wall, 1 IMiila. ('»!) il>. C. 1850) ; but it may, and where the delay is properly ac- counted for, will be granted at any time before delivery of the sheriff's deed. Some conveyancers hold that the acknowledgment of the sheriff's deed is tantamount to a delivery, especially as under the practice in this county the registering and recording of the {\i'c(\ are done for the vendee out of which incidents are clearly construc- tively the act of the vendee, and he does not receive his t]vc(l until after it has been registered and recorded. Perhaps it comes from this, that there has always been reluctance on the pari of the court to give the role afU r acknowledgment. It is true that sheriff's y\r^\ poll like 140 MOTIONS AND RULES AT COMMON LAW. an indenture deed between parties is effective only from delivery, but the question is what constitutes delivery? After the purchaser's title has vested it cannot be taken from him by the summary process of a rule, it must be if at all by a bill in equity, or an action of eject- ment. Carr v. O'Neill, 1 W. N. C. 41 (D. C. 1874); Wrode v. Bancroft, Ibid. 374 (C. P. 1875) ; Stephens v. Stephens, 1 Phila. 108 (D. C. Allegh., 1850) ; Vauer- man v. Cooper, 9 Penna. L. J. 265; Evans v. Maury, 17 W. N. C. 377 (S. C. 1886). Nor should there be any delay in performing the con- ditions if any are imposed by the court in granting the rule ; Association v. Adams, 1 W. N. C. 160 (C. P. 4, 1875). 5. The grounds for setting aside sheriff's sales are many but an examination of the reported cases in the Weekly Notes of Cases, and other Common Pleas Re- ports ; will lead to grouping them under two heads ; where there is any statement or mistake in the adver- tisement of the sale which would tend to impair the value of the property and where there has been a mis- take in the process of the writ of execution. Of course, fraud and collusion between plaintiff and purchaser, or defendant and purchaser will operate as reasons for granting and making absolute a rule to set aside a sale. E. g., such action between the interested parties so that bidders were deterred. Conrad v. Ed- wards, 7 Pa. C. C. 342 (Chester, 1892) ; United Security Co. v. Safford, 3 Lack. L. N. 51 (Lack. 1897). As to causes coming under the head of errors in ad- vertisement, it must be remembered that the mistake complained of is in the " hand bills " of the sale. An error occuring in a newspaper advertisement not found in the hand bill is not sufficient ground to set aside the sale ; Building Asso. v. Silvy, 4 Phila. 17 (D. C. 1860). Where a levari facias in execution of a judgment on a MOTIONS AND RULES AT COMMON LAW. 141 scire facias sur mortgage fails to describe the property as it stands at the time of sale it having been materially improved since the date of the mortgage the sale will be set aside. And if it appear by the depositions taken under the rule, that the character <>f the property is su- perior to the description in the hand bill the rule will be made absolute; Trust Co. v. Herr, 14 W. X. C. 390 (C. P. 4, 1884). As to misdescription in general, sec Broum v. Shep- pard, 1 W. N. C. 103 (1). C. 1874) ; Mole v. Doemer, 1 Ibid. 113 (C. P. Phila. 1874), and Moyer v. Ibbotson, 2 W. N. C. 29 (C. P. 2, 1875). Inadequacy of price is not a cause for but an element in the case of a defendant who seeks to set aside a sheriff's sale. Whitaker v. Berky, 2 W. N. C. 470 (C. P. 1, 187(i). For advertisement in- sufficient under the Act of Assembly a sale will be set aside. Haas v. Fisher, 10 D. R. 150 (Clearfield, 1901 i. 6. While " caveat emptor " applies to tin' purchaser at a sheriff's sale; Hcrr v. Draucher, 7 Lane. L. K. 383 (1890) ; a mistake of law on the part of a purchaser at sheriff's sale as to the discharge of liens, will permit relief; Vincent v. Eunsinger, 7 Pa. C. <\ 331. (Sul- livan 1889). But a plaintiff in execution who failed to attend a sheriff's sale which discharged his lien cannot have the sale set aside for that reason : Building Asso. v. Nesbitt, 21 Pa. Super. Ct. 150 ( 1902). 7. On a rule to set aside sheriff's sale depositions must invariably betaken, unless, of course, tie- parties agree ;is to the facts formally so that tie- agreemenl may be made part of the record. Even if the irregularity complained of is patent in the advertisement it must be shown in evi- dence under deposition, it does not sufficiently appear by being averred in the affidavil in support of the rule qo1 only because the affidavit is only available for i he purpose of having this rule allowed, but because the advertisement is evidence and subject to contradiction or explanation. 142 MOTIONS AND KULES AT COMMON LAW. A rule to set aside a sheriff's sale of personalty is of comparatively rare occurrence. The authority for it, before delivery of the goods is, however, expressly given by statute (act of 10th April, 1849, Purdon, 645, pi. 49), and it is sometimes used. See Yocum v. Specht, 1 W. N. C. 6 (D. C. 1874). MOTIONS AND RULES AT COMMON LAW. 14 3 XY. Whilst there is a theoretical procedure in the argu- ment on the return or the hearing of a rule as stated, yet in many cases this is not adhered t<> and almost informality prevails, this is owing to the desire cm the part of the court to thoroughly understand, noj onlv the facts of the case but also the state of record, ami course of pleading,as well as the view of the law held by the respec- tive sides of the controversy. Side light often musl be sought to render this comprehension complete, and fads not raised formally by the rule and answer — for often the cause required to be shown amounts to an answer — are presented by mere statement of counsel. It is here that the professional stains of the lawyer is relied upon by the court. As the profession derives its dignity from its ecclesiastic origin it can only be maintained by the learning and personal character of the advocate. Ami while the spirit of the age does seem to have caused a departure from not only the forms and met hod of thirty years ago, but also a marked change in the ethics of the profession and although the practice of these days places it perilously near commercialism, we must remem- ber that the aim of our calling is the ad in i nisi rat ion, the effecting of justice; honest differing in I he construing or statute or applying a principle of law to (he particular facts of a cause, must occur and is the real motive of nil litigation, but fairness in presenting of facts and exacl ness in stating tin- proposition raised by the law as to 144; MOTIONS AND RULES AT COMMON LAW. the facts are essential to the successful and convincing argument. Mistakes will happen, errors occur ; but none that can- not be cured or at least mitigated, and all we do we must do with our might. Diligence, exclusive application, persist- ent industry is exacted of us all on bench or at bar by our profession. Personal integrity, purity of life cannot be omitted or ignored in any servants of the community and as we are entirely dependent upon the confidence of our fellow citizens we cannot win their esteem otherwise than by learning and zeal. Kindness and consideration for each other is demanded by the most necessary spirit of unity, but we must exercise care not to trade upon our privileges as lawyers. Courtesy to our adversary sel- dom imperils our client's case and frankness to the court is never wasted. The privileges of the lawyer to-day have descended to him from his clerical predecessors and as those privileges were bestowed upon the clergy out of respect to their calling, it is enough to consider their origin that we may see to it that we do not abuse them. Gilbert makes his Lord High Chancellor say in " Iolanthe: " "In other professions in which 'men engage, The army, the navy, the church and the stage, Professional license if carried too far One's chance of promotion must certainly mar, And I fancy this rule might apply to the Bar — " We have a rich heritage capable of richer result, it is for all; let every one, then, do his part to develop his share so that in the great sum the whole people will be bettered by what we have done. It is fitting that we con- clude with the final paragraphs of Judge Mitchell's ad- dress to the Law Academy, delivered on May 15, 1879, on " Motions and Rules at Common Law," itself the sub- stance and foundation of this attempt. MOTIONS AND RULES AT COMMON LAW. | j;, "The members of the bar must come in constant con- tact with each other; for better or for worse they arc tied together in their business relations so Ion-; as fchey pursue a common profession, and without a constant cultivation of the kindlier feelings, their intercourse must degenerate into an intolerable Ishmaelism. There is a line not always easy to be drawn, especially by a young man, between the sacrifice of clients' rights and the accommodation of adverse counsel. But it is a line which generally is soon learned, and in doubtful cases it is always well to lean to the amiable side. The ac- cidents, and hardships, and difficulties of practice are such that the best and most careful practitioner has sometimes need to ask indulgence. A favor done seldom goes amiss, and if it is occasionally thrown away, there is always left the satisfaction of having at least done your part. The Philadelphia Bar have always been as celebrated for their courtesy towards each other, as for their learning and abilities. I am quite sure, gentlemen of the Law Academy, that you will not allow it to fall short of its established character in that or any other respect." THE END. 10 INDEX. A. F.MiK ACTION. Affidavit for rule to show cause of may not be ami tided 19 By court of its own motion 2 Rule to show cause of in Under the Act of May 25th, 1887 90 AFFIDAVIT. As foundation for a rule must make prima facie case 1!> Attorney in the case may not take 19 Exceptional cases 30 In support of petition for rule may be amended. ... 1!> Must conform to language of statute 20 Not admissible as evidence at the hearing 30 Presentation of to the court for an allowance of rule 20 AFFIDAVIT OF DEFENCE. Defence good at time of filing affidavit is sufficient ... 109 Estahlished formula where facts are not averred as of affiant's own knowledge L0*3 Form of affidavit 10*3 General remarks in I Is conclusive upon all facts properly averred 1 U> Judgment for want of Ill plaintiff if not filed in I ime 113 whether for part or whole of claim, is final L17 List of rules relating to 147 148 INDEX. AFFIDAVIT OF DEFENCE.— Continued. page Supplemental affidavits liberally allowed 110 Time of filing affidavits 101 Withdrawing part of claim and taking judgment for balance 117 Written instruments should be set out 108 ALLOCATUR. List of principal rules not requiring 12 Stay of proceedings required 20 When not required , 9 AMENDMENT. Rules in regard to 83 Tendency to confusion between power of amendment by adding parties and the acquisition of juris- diction 4 APPEARANCE. Rule to withdraw 47 APPEAL. Rule to enter, from award of arbitrators 42 to strike off, from award of viewers 42 to vacate 40 APPRAISEMENT. To amend 74 set aside 75 ARGUMENT. Order of generally 31 Rules for new trial and to take off nonsuit excep- tions 33 ASSESSMENT OF DAMAGES. Rules in regard to 58 to amend 59 set aside, by jury of inquest 60 vacate, Prothonotary's 59 ATTACHMENT FOR CONTEMPT. Ground for must be laid by personal service on party 22 Rules in regard to 69-76 ATTACHMENT FOR COSTS. Rule for 69 INDEX. \rj PAGB 'ATTACHMENT EXECUTION. Rules relating to 40 ATTORNEY. Notice to. is notice to client, except where attachment of the person is asked for Rules relating to 46 to file warrant of 1 ,; set aside summons on 1* strike off paper filed as a warrant of 1" entry of appearance of 4? from roll of 48 to produce papers 48 withdraw appearance of 47 vacate, order admitting 48, 83 AUDITA QUERELA 2 AUDIT. Rule in regard to costs of ,,: ' to file testimony 5 ? AWARD. Rule to set aside CO B. BAIL. List of rules relating to 43 Must be allowed Rule to discharge on common bail 43 for one bond in several interpleaders 45 to reduce 43 BEGINNING AND CONCLUSION. On the argument of rules generally 31 Practice very informal 143 Rules for new trial and to take off non.-uit exceptions 33 BILL OF PARTICULARS. RUle to amend furnish •'' ** furnish more particular 51 in regard to I 1. ■> I , Works stay of proceedings -' I BOOKS AND PAPERS. Rule to produce al the trial ' r,r » 150 INDEX - C. PAGE CALLING UP RULES, 23. CAPIAS. Rule to abate 40 - amend writ, 39. discharge defendant on common bail, . . .39, 40. set aside service of, 39. CLAIM. See Statement of Claim. CONTEMPT. See Attachment. CONTINUANCE. Of rules on the lists 25 CORAM VOBIS. See Audita querela 2 COSTS. Rule to enter security for • • 67 enter security for damages, rule to set aside ca. sa. for 68 pay, of lunacy proceedings 69 Rules in regard to 67 CURRENT MOTION LIST 23 D. DEPOSITIONS. All rules to show cause imply authority to take 30 By whom to be taken 30 List of rules in regard to 56 Rule to enlarge time to take 49 examine opposite party under 56 file names of witnesses to be examined under 56 file 57 take ••• 56 take testimony of party as in cross examina- tion 57 transmit written instrument to be shown witness in commission 57 When dispensed with 30 DISCONTINUANCE. Rule to •••• 84 Rules relating to 53 INDEX. 151 PAGE DIVORCE. Motion for final decree in 7 master in 8 Rule to amend libel 81 file answer 85 for alimony and counsel fee 81 Rules relating to 81 to answer libel, &c 81 E. EVIDENCE. Rule to produce books, &c, at trial 55 Rules relating to 55 EXECUTION. Against real estate, not stayed after sheriff's adver- tisement has begun 1 39 List of rules relating to 71 Rule to set aside 39, 73 mark to use of one defendant, judgmenl against himself and otbers, paid by him. . GG stay 73, 74 have court control the order and manner of Sheriff's sale 74 for execution should not issue for balance due on judgment 71 on Sheriff to proceed with execution which had been stayed 71 EXEMPTION FROM EXECUTION. Rule in regard to 71 Rule for appraisement on claim for 7 1 to allow 75 disallow " 5 strike off from Fi. Fa set aside claim of 87 F. FEME SOLE TRADER. Bond of in interpleader 1,; FIERI FACIAS. Rule to stay • , ;' { set aside, etc • '-'• *« 152 INDEX. PAGE FOREIGN ATTACHMENT. Rule to proceed 52 FREEHOLD. Rule to justify claim of 44 strike off plea of 44 G. GARNISHEE. Rule to allow expenses and costs to 68 by to discharge rule to answer 53 pay counsel fee 53 strike off rule and interrogatories 53 on to answer interrogatories 53 pay into Court 53 Rules relating to 53 GENERAL MOTION LIST 25 GUARDIAN AD LITEM. Motion for appointment of 7 H. HEARING. The call of the lists for 24 Postponement of 25 I. IMPERTINENT MATTER. Rule to strike out 55 INTERPLEADER, The Sheriff's rule for 53 Rule by claimant to file his own bond 44 for costs against claimant who ordered fund into Court 69 defendant to pay into Court and claim- ant's interpleader 54 execution to issue for costs of 68 leave to proceed where no bond is filed. . 71 one bond in several 45 INDEX. INTERPLEADER.— Continued. PAGE issue under Act of 1897 on claimant to give bond in double 46 to allow claimant's costs, &C file statement strike off declaration, &c 54 strike off bill of costs, filed set aside Fi. Fa. of costs in Bond of married women and feme sole traders 4(> J. JUDGMENT. List of rules relating to Motion, for, non obstante veredicto 8 On points reserved " In arrest of The rules to strike off, and to open 118 Distinction between opening and striking off. ... 121 Struck off only for irregularity appearing on the record 121 Opened to allow any equitable defence 11!' Confusion in the language of the cast- 121 The rule to strike off 64, 118, 1 23 Common-law rule 124 Applicable in anv kind of judgments 123 The rule to open. 64, 118, 121 Award of arbitrators ,; '> Equitable relief under common-law form.. 118 Confined to judgments by default and on con- fession 118 No limit as to time 119 May be granted on terms 1 20 Grounds of the rule in general 120 Rule for, against garnishee for amount admitted to be due 63 amount admitted to be due 61 de bonis testoris 62 want of sufficient affidavit of defence. 61 on conditional verdict 61 on warrant attorney over twent) years old 61 on whole record 62 wit bout costs 69 Rule to re-instate judgment 62 154 INDEX. JUDGMENT.— Continued. page strike off, for want of affidavit of de- fence 62 strike off, entered for want of plea same day plea filed 63 enter on docket, nunc pro tunc 63 set off one judgment against another, 63, 87 correct error in entering 64 modify 65 vacate marking to use 66 on Prothonotary to satisfy 66 to strike off of index entered on verdict in interpleader 66 strike off of index 84 amend assessment of damages 84 vacate decree opening 84, 87 vacate judgment and quash scire facias. 87 JURISDICTION. Not acquired by rules 2 L. LETTERS ROGATORY. Rule to issue 57 LOST PAPERS. Rule to substitute copies 54 M. MANDAMUS. Rule on magistrate 38 MARRIED WOMAN. Bond of in interpleader 46 MECHANIC'S LIEN. Rules relating to • 78-128 Rule to amend 79 amend as to date 81 pay into court 79 restrict claim to less land 81 strike out item in 80 strike off judgment by default 80 index. l55 MECHANIC'S LIEN.— Continued. PAQS strike off 78 for judgment part of claim ?!», M MOTIONS. See Rules. Defined 1 Must be in writing For judgment non obstante veredicto 8 judgment on points reserved 7 In arrest of 8 Made in open Court 7 MOTION LISTS 24 MUNICIPAL CLAIM. Rule to amend 79 Rules relating to 78, 132 apportion 79 consolidate 80 enter security . . 81 issue sci. fa 81 open judgment and admit terre* tenant to defend 80 quash scire facias 80 strike off non pros on scire facias. 7!) vacate judgment in 80 N. NEW TRIAL. Rule for 58 NON OBSTANTE VEREDICTO. Motion for judgment 34 NONSUIT. Rule for 62 Rules in regard to ? . M nonsuit for failure to furnish l»ill of particulars to take off compulsory 62 The motion for 7 tfOTTCE. Giving notice and serving copy of rule on other party. 21 156 INDEX. NOTICE.— Continued. page To lay foundation for attachment must be on party himself 22 Of calling up a rule after it has been passed 24 insisting on argument when the case is called 25 taking depositions 30 o. OFFICE RULES. See Peremptory Rules. OPENING JUDGMENT. See Judgment. P. PAPER BOOKS. Who to furnish 26 Required in all cases 26 Origin of term 26 Office of 27 What they should contain 29 To be legibly written or printed 28 PARTIES. Bringing in new parties by rule 4 Distinction between putting on the record by amend- ment and acquiring jurisdiction over 4 PAYMENT INTO COURT. By sheriff of proceeds of sale of personalty 72 PEREMPTORY RULES. Examples of 10 Entered in office and do not go on the lists 9 Do not require allocatur 9 PLEADINGS. Rules relating to 48 PLEAS. The rule to strike off 40 Rule to plead 49 withdraw rule to plead 49 plea 50 strike off rule to plead 49 file additional 50 INDEX. 157 PAOK POINTS RESERVED. Motion for judgment on ? PRACTICE. Importance of accuracy in 11. ", Act of May 25th, 1887 90 PROCESS. Rules relating to 37 R. RETURN DAY. Of rules is the next Monday Exceptional cases 23 RECORD. Rule to amend 83 RULES. Defined 1 Enlargement in modern practice :* Scope not without limits :'» Court must have acquired jurisdiction over person or subject-matter .! Some apparent exceptions where rules are equivalent to original process ."> Tendency at present to enlarge the office of 5 True distinction and correct practice t» Rules are either peremptory or to show cause !» List of peremptory rules in Do not go on the lists !» How enforced 23 Largest body of rules [g of the second kind !» Rules are also divisible into those which are of course and those which require an allocal ur is, 19 Practical importance of this classification 18 Principal suggested as basis for classification. . . is Last of principal rules which are of course 1 2 Stay of proceedings upon such rules 20 Rules to show cause, requiring an allocatur 19 Founded on affidavit 19 Bad practice in regard to counsel adminis- tering the oath lit 158 INDEX. RULES. — Continued, page Presentation for allowance 20 Proper mode of making applications to the court 22 Motions and rules must be in writing 22 Notice to opposite party 22 Not necessary in default rules 21 Pules peremptory do not go on the lists. . . . 23 to show cause go on the lists 23 Keturn days for rules 23 The lists 24 Transfers from one list to the next .... 24 Calling cases 25 Discharged if not answered to on third call. 25 The hearing, practice in regard to postpone- ment 25 Paper books 26 Depositions in support of and against rules. 30 When dispensed with 30 Right to begin and conclude 31 Exception 31 Rules for new trial and to take off non- suit 33, 35 Motions for judgment on points reserved. .. 34 Second rule not allowed after discharge of first 35 Withdrawing rules 35 List of the principal rules 37 Rules relating to attorneys 4(> bail, security, etc 43 costs 67 evidence 55 execution 71 judgment GO mechanic's liens and munic- ipal claims 78. process 37 the pleadings 48 trial 58 verdict and assessment of damages 58 in divorce 81 Miscellaneous rules 83 Statutory rules 88 INDEX. 159 S. PA(iE SATISFACTION OF JUDGMENT. Rules in regard to SECOND RULE. Not allowed after discharge of similar 35 SECURITY. List of rules relating to -13 Rule to enter additional, etc 44 justify 43 strike off 41 allow terre-tenant to enter for stay of execu- tion "1 for, for costs only 44 SERVICE. The rule to set aside 38 SHERIFF. Motion for acknowledgment of Deed 7 The rule on to return writ Rule to set aside amended return 39 to amend return 4 1 assign bond 4 1 be restrained in execution to certain property. " 1 make special return "1 pay proceeds of personalty into Court 72 sell perishable goods 12 strike off return 41 SHERIFF'S INTERPLEADER. See Interpleader. SHERIFF'S SALE. Rule to set aside Notice to part ies ' ;s Testimony of billposter 138 Sale may be sel aside at any time before delivery of the Sheriff's Deed ' 139 Stay of proc lings after advertisemenl 139 Setting aside sheriff's sale of personalty 142 STAY OF PROCEEDINGS. Rules in regard to for bill of particulars '" 51 On rules not requiring an allocatur 17 160 INDEX. STAY OF PROCEEDINGS.— Continued. page Rule to file warrant of attorney works 46 Rule to open judgment does not stay proceedings un- less so ordered 41, 120 Not granted to stay sheriff's sale after advertise- ment 139 STATEMENT OF CLAIM. Rule to amend 50 file more specific 52 Copy of instrument sued on, requirements as to 101 How accuracy of, tested 102 May contain abbreviations 102 Obligation sued on must be on defendant 95 raise present obligation 95 must be absolute 95 to pay money 96 Instrument sued on may consist of more than one paper 96 Executory cases 97 General test of sufficiency of Statement to entitle to affidavit of defense 100 Statement of claim 90 Act May 25th, 1887, P. L. 271 90 constitutional 92 Must contain explicit averment of amount due 93 Requisites of valid claim 95 No intention under Act of 1887 to depart from old principles of accuracy and precision 92 Rule of Court Philadelphia County— 30— Sec. 3 93 SUIT. Rule to mark to use of assignee in bankruptcy 48 STRIKING OFF JUDGMENT. See Judgment. T. TERRE TENANT. Rule to intervene 41 strike off appearance 41 TRESPASS. Act May 25th, 1887 90 Affidavit of defense in actions 94 INDEX. 161 PAGE TRIAL. Rules relating to for plaintiff to produce original of papers sued on ' 60 new trial to take off nonsuit vacate order to produce papers V. VERDICT. Rule to set aside on plaintiff to remit part of for judgment on conditional 6] Rules in regard to w. WARRANT OF ATTORNEY. Rule to file IT. 4G WITHDRAWING RULES. When leave is required 33 the proper course 33 WRIT. Rule to amend 39 amend return to 41 quash, 38, 42 vacate -4^ LAW DEPARTBEN7