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Beedle et al. vs. Monongahela Valley Brewing Company.

thereof, in about four years from the date. The mortgage is executed by the officers of the company and contains a recital of meetings of the stockholders and directors by which the making of the mortgage was authorized. The affidavit of claim also sets up two several agreements for renewal of the mortgage and certificates of no defense, which are in like manner recited to have been made by authority of the stockholders. The affidavit of defense, which is made by a Receiver in Bankruptcy, alleges that the mortgage was executed without authority from the board of directors of the defendant company, and that the mortgage shows that it was executed on April 9, 1904; and avers that the execution of the mortgage was not authorized by the Board of Directors on that day or at any time prior thereto. It appears by the record that the mortgage is dated April 25, 1904, and it recites a meeting of the Board of Directors on that day. The certificate of the notary is dated April 9th, but as between the parties that is no part of the mortgage, so the statement in the affidavit that that no mortgage was authorized by the Board of Directors on or before April 9th is immaterial. It is further alleged that the proceedings at the stockholders meeting held on September 26, 1903, were illegal and that it was not conducted according to law; but there is no allegation as to the character of these illegalities; and it is further alleged that no return of this election for increase of indebtedness was made to the Secretary of the Commonwealth. This is not a matter which can in any way affect the validity of the mortgage. It is further alleged that Evan Beedle, the mortgagee, whose executors are plaintiffs, was indebted to the Monongahela Valley Brewing Company in a large sum of money, and that his estate is indebted to them upon this state of facts, that in January, 1902, Evan Beedle, then being treasurer of the company and one of the directors, fraudulently took from the treasury of the company 880 shares and paid into the treasury only one-half of the par value thereof, or $25.00 a share, and that this fraud was concealed and was not discovered "by the present stockholders of said company" until January, 1912, and that Evan Beedle, or his representatives, is indebted to the Monongahela Valley Brewing Company in the sum of $22.000.00 with interest from January, 1902, being the sum of $25 a share for 880 shares, and that there is pending a bill in equity by the defendant company against the executors of Evan Beedle, deceased, for an accounting of this stock. The affidavit does not deny that the company received value for the mortgage, but demands proof that it did. We are of opinion that the set-off attempted to be set up by the affidavit cannot avail the defendant, for several reasons. In the first place, it is not alleged in what the fraud charged against the mortgagee consisted; and further that it would seem to be a claim arising ex delicto; and further, that it is barred by the statute of limitations. The right of action, if there is any, arose in 1902, and the only thing that is suggested as taking away the bar, of the statute is that the present stockholders did not discover the matter until later. That would not excuse the delay of the corporation, although it might excuse that of certain stockholders, if they chose to insist upon their rights.

We are of opinion that there is nothing in the affidavit of defense to prevent judgment, and the rule is therefore made absolute.

Kelly vs. Pennsylvania Company, etc.

Bill of Particulars-Trespass-Judgment by Default-Rules of CourtCommon Law--Practice Acts of 1887 and 1915.

In an action of trespass, plaintiff ruled defendant for a bill of particulars. Instead a plea of "not guilty" was filed. Plaintiff entered judgment "for default by defendant of a bill of particulars of its defense, sec. reg." An order in the nature of a writ of inquiry was made and the case put down to assess the damages by a jury. Defendant moved for a rule to strike off or open the judgment which rule was granted. Plaintiff answered citing Rules of Court Nos. 92 and 119. This rule was made absolute. Plaintiff's application to have the case reinstated on the argument list was refused without an opinion. On appeal to the Supreme Court, the case was returned to the lower court for an opinion.

Held: There is no rule of court authorizing a judgment in an action of trespass in default of a bill of particulars, nor is it allowable either under the Common law or the Practice Act of 1887. Under a plea of "not guilty" defendant may defend upon matters of law, in confession and avoidance and upon the statute of limitations.

Rule for Bill of Particulars. No. 2208 July Term, 1914. C. P. Allegheny County.

C. S. Cochran and Oscar T. Taylor, for plaintiff.
Dalzell, Fisher and Hawkins, for defendant.

BROWN, J., November 3, 1915.-Plaintiff perfected an appeal to the Supreme Court at No. 136 October Term, 1915; and that Court, by order dated October 26, 1915, remitted the case to the lower Court:

"To enable this Court to pass intelligently upon the error alleged to have been committed by the Court below in making absolute the rule to show cause why the judgment against the defendant by default should not be stricken off, there ought to be an opinion from said Court giving its reason or reasons for striking off the judgment. It is therefore ordered that the record be remitted that such an opinion may be filed. Upon return of the record, either side may make an application to advance the hearing of the cause.

Per Curiam."

Plaintiff commenced an action in trespass to recover damages for personal injuries on June 25, 1914. After an appearance had been entered on behalf of the defendant, counsel for plaintiff entered a rule upon defendant to plead within fifteen days and to file a bill of particulars within twenty days. Thereafter defendant filed a plea of "not guilty." Plaintiff on October 19, 1914, filed a praecipe with the Prothonotary to enter an unliquidated judgment against defendant "for default by defendant of a bill of particulars of its defense, sec reg." The following day counsel for plaintiff made an ex parte application to the judge presiding in the Assignment Room, and an order was made by that judge in which the action of the Prothonotary was "confirmed as if entered in open court, and the court hereby makes this an order in the nature of a writ of inquiry, to charge the jury attending the court to inquire of the damages and costs sustained by the plaintiff in this action. And this case is ordered to the foot of trial list No. 20." Three days later counsel for defendant appeared before the same judge with a motion to strike off or open the judgment; and the court granted a rule upon plaintiff to show cause why the motion should not be granted. To this rule plaintiff filed an answer reciting the proceedings and setting forth verbatim the provisions of rules 92 and 119 of this Court.

The rule ex parte defendant to show cause why the judgment in default should not be stricken off came upon the regular argument list; and after

Kelly vs. Pennsylvania Company, etc.

argument by counsel for the defendant Court made the rule absolute on November 5, 1914.

On December 9, 1914, plaintiff presented a petition asking that the rule be re-instated upon the argument list; but this application was denied in a brief opinion filed by Judge Cohen. Plaintiff then perfected an appeal to the Supreme Court.

It is to be doubted whether plaintiff had the right to enter a judgment upon the mere filing of a praecipe with the Prothonotary. Rule No. 92 (Now 113 in the 1915 edition) of this Court provides:

"A defendant having appeared may rule the plaintiff to declare on fifteen days notice, and the plaintiff having declared may rule a defendant who has appeared to plead on like notice; and either party may take judgment against the other on proof of default filed."

This rule No. 92, does not in express terms authorize the entry of judgment of course in default of a bill of particulars; and therefore, plaintiff, if entitled to judgment in default of particulars, should and did ask the Court to enter judgment in open Court.

The present rule No. 140 in the 1915 edition of the rules of this Court was known as rule No. 119 in the editions of 1889 and 1906. Since 1889 the rule has been in the following form:

"In actions of assumpsit and trespass the plaintiff may at any time before the cause is put on the trial list, and thereafter by leave of court, rule the defendant to furnish him with a bill of particulars of his defense. And in default thereof for 20 days after notice judgment may be entered against the defendant on proof of notice and default; and on the trial the defendant shall be confined to the defense he may have set forth in answer to the rule, unless amendment be allowed by the court for cause shown." No such rule appeared in any of the editions of the rules of this Court prior to 1889. The nearest approach was rule No. 119 in the 1879 edition:

"The plaintiff may at any time before the cause is put on the trial list rule the defendant to plead at length; and where defendant has so pleaded, he may rule the plaintiff to reply at length. The party neglecting to take such rule shall not be at liberty to object to any short plea added on the trial for want of form, or require the same to be set forth at length, or be allowed to demur specially to the same."

By the strict letter of rule No. 119 as it has existed since 1889, plaintiff may secure judgment in default of a bill of particulars of defense, or plaintiff may ask that the evidence offered by defendant at the trial be confined to the defense defendant may have set forth in a bill of particulars.

We know of no reported case in Allegheny County or in the Appellate courts in which the precise question in this case has been passed upon; nor of any case in which it has been held that a defendant may be required to file a bill of particulars of defense in an action of trespass to recover damages for personal injuries. It is true that the case of Goldstein vs. Fritzius 41 Superior, 219, involved a bill of particulars in an action of trespass; but that bill of particulars was filed by defendant voluntarily. The error complained of in that case was that plaintiff had taken judgment because plaintiff's counsel thought the bill of particulars was insufficient.

There are instances in which a defendant in an action of trespass or assumpsit may ask plaintiff to file a bill of particulars; especially when it is important that there be particularization of some matter alleged under a videlicet; and instances in actions of assumpsit wherein plaintiff may ask for a bill of particulars, in which defendant is asked to particularize some

Kelly vs. Pennsylvania Company, etc.

matter alleged under a videlicet in the affidavit of defense or in a claim of set-off made by defendant.

This court is unwilling to hold that a defendant in an action of trespass to recover damages for personal injuries may, since the Act of 1887, be required to particularize its defense-as the Act has by its terms abolished special pleading and made the only plea "not guilty." Under this plea a defendant may defend upon matters at bar, in confession and avoidance, and upon the statute of limitations: Martin vs. Pittsburgh Railways Co., 227 Pa., 18; Johnston vs. P. & R. R. R., 163 Pa., 127; Clark vs. Lindsay, 7 Pa., Superior, 43. If a corporation intends to deny its existence, it should do so in limine under the provisions of the Act of June 9, 1911, P. L., 723, in libel or slander a defendant may plead "not guilty" or "justification" by the provisions of the Act of April 11, 1901, P. L. 74.

This Court is unwilling to construe its rule so as to justify a judgment in default of a bill of particulars of defense in an action to recover damages for a personal injury-for the reason, that there is no common law practice, no statutory provision and no well-established practice of entering judgments in default of a bill of particulars of defense. The only statute relating to bills of particulars is that relating to actions of divorce, the Act of May 25, 1878, P. L. 156 (Purden, Vol. 1, page 1242). We know of no common law practice authorizing such a judgment; and such judgments were not authorized by any practice which had become well-established in this County or generally throughout the State. The practice had grown up in some of the counties of ordering cautionary judgments-particularly when an application was made by petition alleging that a defendant was wasting or concealing his assets in anticipation of an adverse final judgment: Seisner vs. Blake, 13 Pa., C. C., 333; Whitmer vs. Association, 17 Pa., C. C., 38; Pershing vs. Improvement Co., 46 Pgh. L. J., 167. President Judge Rice in Monahan vs. Auman, 42 Superior, 480, ruling that such cautionary judgments could not be ordered, said:

"No statutory authority exists for entering such interlocutory judgment and no common law principle has been suggested, and there is none that we are aware of that will sustain it. It would be contrary to wellsettled common law principles, and it is not established by authoritative precedent. We are constrained to hold, therefore, that the judgment was unauthorized."

The Legislature has seen fit to require of defendants in actions of trespass something more than a plea of "not guilty," by the enactment of Section 13 of the Practice Act of May 14, 1915, P. L. 483:

"In actions of trespass the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with Section 6; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted."

This Practice Act of 1915 has no application to the case at bar-and is referred to simply as some indication of necessity for legislative action if a defendant is to be required to particularize a defense in an action of trespass.

From the nature of the case no more is required in advance of trial from the defendant than the statutory plea of "not guilty." For the plaintiff in his declaration has stated with minute particularity the grounds upon

Kelly vs. Pennsylvania Company, etc.

which he seeks recovery; and to this cause of action defendant plead "not guilty"-the only plea permissible by the Act of 1887-a plea beyond the power of the Court to require amplification by special pleas or bill of particulars.

In compliance with the order of the Supreme Court this opinion is filed as an expression of the reason or reasons upon which the lower court on November 5, 1914, made absolute the rule ex parte defendant on plaintiff to show cause why the judgment in favor of plaintiff and against defendant entered October 20, 1914, should not be stricken off.

We regret the inconvenience caused to the Supreme Court and to litigants and counsel by the failure to file an opinion with the order of November 5, 1914, making absolute the rule of October 20, 1914.

And now, November 3, 1915, an exception is noted to plaintiff and a bill of exceptions sealed.

Sales Service Company of Pennsylvania vs. Mutual Orange Distributors. Foreign Attachment-Pleadings-Measure of Damages——Bail.

Plaintiff issued a writ of foreign attachment to attach certain property of defendant corporation, asking bail in $13,000. Defendant moved to dissolve the attachment or reduce the bail alleging that plaintiff statement was too indefinite and if definite enough the bail was excessive.

Plaintiff alleged that it agreed to become the exclusive agent for defendant in the sale of oranges and cantaloupes for a stated commission in the Pittsburgh district whether sales were made by plaintiff directly or indirectly through customers. For oranges sold $3,000 commissions and for cantaloupes $1,000 commissions were claimed. In addition plaintiff claimed $7,500 commissions on goods ordered but never shipped by defendant; and as the contract had been merely cancelled without giving the ten days' notice required, an additional $1,500 was claimed for goods that might have been sold in that period, and $1,500 general damages for the unlawful cancellation of the contract.

Held: That there was no justification for the $1,500 general damages for cancellation of the contract, nor for the $1,500 for goods that might have been sold, as this was not the proper measure of damages. That the allegations as to not shipping the goods ordered, they were too indefinite. Motion to dissolve refused, but bail reduced to $8,000.

Foreign attachment. No. 1986 July Term, 1915. C. P. Allegheny County.
Geo. E. Reynolds and Louis Caplan, for plaintiff.
R. T. M. McCready, for defendant.

EVANS, J., October 20, 1915.-The plaintiff issued a writ of foreign attachment to attach certain property of the defendant, a foreign corporation, asking bail in $13,000. The defendant files a motion either to dissolve the attachment or reduce the bail, alleging that the plaintiff's statement as to the cause of action is not sufficiently definite to sustain the writ of foreign attachment, or, if certain items of the statement to the cause of action be sufficiently definite, the bail should be reduced. The plaintiff is a corporation of Pennsylvania and entered into a contract with the defendant by which the plaintiffs became the exclusive agents for the defendant for the sale of oranges and cantaloupes and agreed not to sell for any other concern. The plaintiff alleges that there was a contemporaneous parol agreement by which the defendant agreed to pay to the plaintiff a commission of five cents a box on all oranges sold in the Pittsburgh district, whether through plaintiffs or directly to the customers, and alleges that there were 150 cars of oranges sold, averaging 400 boxes to the car, which, at five cents a box, would aggregate $3,000; that the same oral

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