ments under it.

A modification of the rule (permitting the plaintiff to direct that judgment by default for want of an affidavit of defence should be entered as of course) was afterwards adopted by the Supreme and Circuit Courts in 1799; and a further modification was adopted by the Court of Common Pleas in 1809. (See Vanatta v. Anderson, 3 Binney, 417.) The latter rule provided that, in all actions of debt or contract where special bail was not required, the plaintiff might direct judgment to be taken by default, at any time after the fifth Monday of the next succeeding term to which the process was returnable, unless the defendant had made an affidavit, and previously filed the same in the prothonotary's office, stating that, to the best of his knowledge and belief, there was a just defence, in whole or in part, in the said cause; and, if the defence was to part only, the defendant should specify the sum which he admitted was due; provided always that no judgment should be entered by virtue of this rule unless the plaintiff had filed a declaration during the term to which the process was returnable. In actions where special bail was required, if the plaintiff filed his declaration within the first three days of the next term after special bail was entered, and the defendant did not make an affidavit before the fifth Monday of that term, the plaintiff could enter judgment.

The District Court of Philadelphia County also, after its establishment in 1811, adopted a similar rule, which provided that judgment could be taken at the third Monday of the next succeeding term, if the plaintiff had filed his declaration before the third day of that term. (Walker's Court Rules, Ed. E. W. Davis, 1847.)

The remark of READ, J., in Sellers v. Burk (11 Wr. 350, decided in 1864), that the provisions of the Act of 1835, and its supplements, "giving power to the Courts in this county to enter judgment by default for want of an affidavit of defence in certain specified cases, have, in a great measure, superseded all former rules on the subject"-and the intimation of CADWALADER, J., in the above-reported case, would seem to imply that the old practice which obtained before the Act of 1835, and its supplements, may still be invoked in cases which, though not within the Act, would be within the old rule of Court. It is believed that in the U. S. Court for the Eastern District of Pennsylvania, such judgments have been occasionally

granted, probably in conformity to the practice in some of the counties comprising that district.

It would seem, however, as stated in 1 Tr. & H. Pr. 368, that in Philadelphia County "the rules of Court which preceded these statutes have now been repealed;" and that the practice is now entirely regulated by the provisions of the Act of 28 March, 1835, sect. 2, relating to the District Court for the City and County of Philadelphia, and its supplement, Act of 14 April, 1846, relating to the Court of Common Pleas. The latter Court in Nov. 1848, repealed its rule, "being of opinion that it was sufficiently supplied by the Acts of Assembly" (Walker's Court Rules, Ed. F. C. Philpot, 1850, p. 14); and the District Court, in 1857, by omitting its former rule on the subject from among those adopted and published in that year, thereby repealed it under an order of January 3, 1857, repealing all rules not then re-announced. (Walker's Court Rules, Ed. E. T. Chase, 1857.)

The Court of Nisi Prius, which was established under Act of 26 July, 1842, was empowered under the provisions of that Act to enter judgment by default for want of an affidavit of defence, as under the Act of 28 March, 1835, and its supplements; and it would appear that it did not establish a practice by rule of Court similar to that under the second-term rule, or like that which had been in force in any of the other courts prior to the Act of 28 March, 1835. (See Rules adopted January 15, 1849: Walker's Court Rules, Ed. 1857, p. 99; New Court Rules, Ed. Davis & Simpson, 1870, p. 248.)

The United States Circuit Court made its practice conformable to that of the Nisi Prius by a rule adopted January 10, 1861 (New Court Rules, p. 353). By Act of Congress of June 1, 1872 (Rev. Stat., § 914), it is provided that the practice of the United States Courts, in civil causes, shall conform to that existing in the Courts of the State in which such United States Courts are held.

It may be added that the Act of 21 March, 1806 (4 Sm. L. 326, P. L. 561), to regulate arbitrations and proceedings in courts of justice, provided that, in all suits for the recovery of any debt founded on a verbal promise or a book account, the plaintiff should file a statement of his demand on the third day of the term to which the process was returnable; and the defendant at least twenty days before the next succeeding term should file a statement of account, if any, against the demand, and particularly stating what was justly due. It was the practice under this Act to take judg ment by default for want of a counter-statement as of a plea; and if instead of a specific statement a formal plea was entered, as payment, the cause was at issue. An "affidavit of defence," however, was not required. (3 Penua. Blackstono, p. 205.)

Numerous special Acts of Assembly have been passed extending the Philadelphia affidavit of defence law to other counties of the State (Purd. Dig. 1165, note g); and in others it has been adopted, with or Chief Justice without modification, by rule of Court. BLACK remarked, in Lord v. Ocean Bank (8 Harris, 387), that "the only regret of those who are well informed on the subject is, that it is not universally adopted in all the courts of the State." The power of a Court, in the absence of a statutory provision, to make and enforce such a rule, has not been seriously doubted since Vanatta v. Anderson (3 Bin. 417). Several subsequent cases, in which the power of County Courts to make similar rules has been sustained, are referred to in Linn's Analytical Index, and Landis's Supplement, under the case of Vanatta v. Anderson. W. W. C.]

ACCORD AND SATISFACTION—Continued. desires to set up such an agreement as a defence to the original cause of action, must be prepared to prove either performance or a tender of performance on his part. Weichart v. Hook. 488

ACTION. Change of cause of. What amendment allowable under Act of May 10, 1871. See AMENDMENT (b). Tatham v. Ramey. 3.

ADVANCEMENT. Statute of limitations does not bar any instrument which in reality represents an advancement. See DECEDENTS' ESTATES (). Pillings' Appeal. 252.

ADVERSE POSSESSION. Some clear, positive, and unequivocal act is necessary to give an adverse character to a possession originally subservient to the title of the owner. Cadwalader v. App. 1

AFFIDAVIT OF DEFENCE LAW. (a) Generally. In a sci. fa. against an executor or administrator to revive a judgment against a decedent, judgment on the sci. fa. cannot be taken for want of an affidavit of defence. Seymour v Hubert. 423.

(b) What is a sufficient instrument within the Act. The exemplification of the record of a judgment of Court of another State. Power v. Winsor. 360. A copy, if in form it appears to be a copy of a book of original entries, although it be styled copy of book account." Loucheim v. Becker. 449. To a copy of original book entries for goods sold and delivered was added an item "cash paid, draft returned, $300," to counterbalance a credit given the defendant of a draft, which was subsequently returned unpaid: held, not to vitiate the copy as one of "original entries." Binswanger v. Fisher. 340.

It is a question of grave doubt whether a replevin bond is an instrument within the affidavit of defence law. Sands v. Fritz. 531.

(c) What is a sufficient affidavit of defence. In an action against M. and three others, "trading as the C. S. & M. Co., and also as B. & W.," for goods sold and delivered, M. filed an affidavit of defence denying that he was a partner in the firm of B. & W.; and that the goods, charged in the copy filed to the C. S. & M. Co., of which he was a member, had not been purchased by them, nor by any one authorized to purchase for them, but by B. & W., which last firm was in debt to the C. S. & M. Co.: held (reversing the Court below) that this affidavit was sufficient. Martien v. Manheim. 10.

In a suit on a mortgage, payable in one year from its date, an affidavit of defence set out that the defendant, a woman, had agreed to give the mortgage upon the express understanding that it should be drawn payable in three years; that, at the time of her signing it, seeing that it was drawn for one year, she remonstrated with the plaintiff, whereupon he assured her that, if she signed, the mortgage should run for three years, and payment of the principal should not be enforced until the expiration of that time: held (reversing the Court below) to be sufficient. Lippincott v. Whitman. 313. In an action upon a promissory note, the affidavit of defence set out a valid defence against the party from whom the plaintiff received the note, and proceeded "the affiant avers, expects to be able to prove," and show on the trial of the cause, that the plaintiff is not the owner and holder for value, but that the same was handed him for the purpose of debarring the defendant from a valid defence: held (reversing the Court below), that the phrase "avers, expects to be able to prove," was legally no weaker than the usual phrase "verily believes, etc. ;" and that the affidavit was sufficient. Moeck v. Little. 341.

In a scire facias to revive a judgment originally obtained on a promissory note, the affidavit set out that

AFFIDAVIT OF DEFENCE LAW-Continued. it had been paid by illegal and usurious interest: held (reversing the Court below) to be sufficient. Seymour v. Hubert. 423.

See PARTNERship. Hart v. Kelley. 336.

(d) What insufficient. In an action for work and labor done, an affidavit alleging as a set-off that the work was not done in the time agreed upon, must set out with particularity the items of damage, and the time within which the work should have been done. Loucheim v. Becker. 449.

In an action upon a note for goods sold and delivered, an affidavit alleging as a set-off that the plaintiff-, auctioneers, had failed to deliver goods subsequently knocked down to the defendant, although he had tendered in payment therefor his note for the price of the same; there being a continuing offer from the plaintiffs to the defendant to sell on four months' credit, and that, by reason of the non-delivery of these goods, the defendant had suffered damage greater in amount than the note sued upon: held (by an equally divided Court), that the affidavit was insufficient. Hopple v. Bunting. 472.

An affidavit of defence referring to a matter of record should set it out ipsisimis verbis, or by a prout patet per recordum. In an action upon a book account, the affidavit set up that the same account had been sued upon in a former suit between the same parties, together with a note, and the plaintiff took judgment in the former case for the amount of the note; and that the balance of the plaintiff's claim was allowed by the plaintiffs: held to be vague and insufficient. Richards v. Bisler. 485.

In an action on a bill of exchange by the holder against the acceptor, an affidavit containing merely general allegations that the acceptance was procured out of the usual course of business, and by means of false statements, is insufficient. It should have stated facts distinctly to show how the acceptance was procured and what false statements were made. Matthews v. Long. 512.

The action of the Court below in discharging a rule for judgment for want of a sufficient affidavit of defence will not be reviewed when the affidavit seems to disclose questions of fact which need the intervention of a jury. City of Philadelphia v. P. & R. R R. Co. 492.

AGENT. (a) Extent of authority. The powers of the substitute of an attorney in fact cease upon the death of such attorney. Lehigh Nav. Co. v. Mohr. 322.

Where the power given to an attorney in fact is coupled with an interest, the death of the attorney does not revoke the power. Lightner's Appeal. 295.

Although an agent for making sales and collections has no authority to indorse notes for discount with the name of his principal, if the principal receive and appropriate the proceeds of such discount, such action wil operate as a ratification of the unauthorized act, and render the principal liable as an endorser. Horter v. Silliman. 405.

Where goods are consigned on condition of payment by the consignee of a draft drawn on him, no property in the goods passes to the latter under the bill of lading until the payment of the draft.

Such a condition will be inferred from forwarding, with the bill of lading, the draft drawn on the consignee for collection.

If the consignee take the goo ls, without payment of the draft, the consignor may maintain trover for them. Millar v. The Ass'n. 480.

See INSURANCE (a). Leonard v. Lebanon Ins. Co. 527.

(b) Liability of, as regards third parties. An agent of a corporation who enters into a contract under his hand and seal is individually liable thereon, although

AMENDMENT. (a) Addition of new parties. The statutes relating to amendments do not authorize the addition of parties to a suit in ejectment who are not connected either in person or title with the original parties thereto.

ARBITRATION-Continued.

But an award against one who was not a party to the suit is so palpably erroneous that it will be stricken off as against such third party as surplusage. Danville, Hazleton, etc. R. R. Co. v. Ashton. 281.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS. An assignment for the benefit of creditors, if not recorded within thirty days, is void. Creditors are not debarred from levying upon the property of their debtor, which passed into the hands of assignees, who have expended a large amount of their own money on the property, because of having signed an agreement providing for such assignment, but which also recited that it should be signed by all the creditors unless all have signed, or unless knowledge of the action of the assignees had been given to the creditors. Lane's Appeal. 379.

See DEBTOR AND CREDITOR (d). Bair & Shenk's Appeal. 81.

ASSUMPSIT. An action for money had and received is maintainable against a broker for improper charges of extra interest in carrying stocks for the plaintiff. Wagner v. Peterson. 344.

If an error in naming the party is technical, as if an action is brought in the name of an assignee for the benefit of creditors instead of the assignor as legal plaintiff to the use of such assignee, an amendment of the record will be allowed even after writ of error taken. Shryock v. Bashore. 360.

(b) Change of cause of action. The Act of 10 May, 1871, does not authorize the change of an action of dower to one of debt for arrears of interest on the agreed value of the demandant's estate in the realty of her husband. Tatham v. Ramey. 3.

(c) When not allowed because of delay. After a delay of fifteen years a plaintiff cannot substitute special counts in the place of common counts for the purpose of introducing evidence of special matter which would not be admissible under the common counts. Bricker v. Dull. 254.

An amendment of a defect in the record which is cured by verdict and judgment will be made as of course in the Supreme Court after writ of error taken; as for example, in debt on a bond a copy of the bond was filed, but no declaration, the defendant pleaded nil debet, after trial and verdict and judgment for the plaintiff the defect was cured. Jones v. Freyer. 365.

See ELECTIONS (c). Welti's Case. 165. ANCILLARY ADMINISTRATION. See DECEDENTS' ESTATES (c). Baldwin's Appeal. 73. APPEAL FROM ALDERMAN. Under Landlord and Tenant Act of Dec. 14, 1863, must be supported by an affidavit that the appeal is not intended for delay.

Carter v. Hess. 325.

ARBITRATION. (a) Arbiter, decision of, when prerequisite to an action. When in a con

tract an arbiter is named to determine whether the work contracted for is done in accordance with its provisions, a decision of such arbiter upon the sufficiency of the work is a sine qua non to an action for the price unless such decision is rendered impossible or is waived by the parties. Quigley v. DeHaas. 315.

(b) When conclusive. An agreement for an arbitration is not conclusive unless in the form of a definite submission. Weichart v. Hook. 488.

The award of a referee to whom certain disputes were submitted is conclusive upon the parties as to findings of fact except in cases of manifest fraud or mistake.

chattels into money, and no circumstances from which the law would imply such conversion or imply a contract to pay their value. Bethlehem v. Perseverance Fire Co. 104.

ATTORNEY AND CLIENT. An attorney who receives a claim to be forwarded for collection to a distance is responsible for the embezzlement of the proceeds collected by his correspondent, and if upon inquiries made by the owner of the claim, such attorney replies it is uncollectible, such reply will prevent the running of the statute of limitations, even though he has no knowledge of the fraud of his correspondent. Morgan v. Tener. 398.

When one of two partners of a firm of attorneys receives money belonging to clients, but gives no notice of the receipt, and then leaves the neighborhood, and the other partner who continues the business, but has no knowledge of the receipt of the money, continually informs the clients that the claim is uncollectible, such conduct will prevent the running of the statute of limitations against the firm. Wickersham v. Lee. 400.

An assignment of a debt does not carry with it to such assignee the right of action against an attorney, through whose negligence the means of collecting the debt have become unavilable. Morris v. McCullough. 357. ATTORNEY IN FACT. See AGENT. Lehigh Nav. Co. v. Mohr. 322.

ATTORNEY'S COMMISSION. DENTS' ESTATES (d) (e). Price's Estate. MORTGAGE (c). Faulkner v. Wilson. 339. (). Schmidt & Friday's Appeal. 282.

See DECE320; See PRACTICE

See DECE

AUDIT. Costs of, how apportioned. DENTS' ESTATES (e). Price's Estate. 320. AUDITOR. Practice before. Absence of counSee PRACTICE (7). Copely's Appeal. 145. Power of. See PARTNERSHIP (d). Bogue's Appeal. 256.

sel.

BAILMENT. The receipt by a bailee of a notice forbidding him to deliver up goods placed in his hands by his principal, where the sender of such notice presents no evidence or claim of title, does not justify the bailee in refusing to deliver the goods to his principal or in demanding a bond of indemnity as a condition of such delivery. If, after a refusal to deliver, the goods are lost, the bailee is responsible for their value, irrespective

BAILMENT-Continued.

See NEGLIGENCE. BANKRUPTCY.

(a) Fraudulent preference, what constitutes. The signing of an agreement for an amicable revival of a judgment by an insolvent debtor is not a fraudulent preference within the purview of the Bankrupt Act. Kemmerer v. Tool. 69. (b) Of partnership, effect of, on suing capacity of members of firm. The filing of a petition by a member of a firm praying that the firm be adjudicated voluntary bankrupts does not bar the other members of the firm from bringing suit on individual claims before an adjudication. Booth v. Mever. 196.

(c) Who can take advantage of an act of. A debtor of a State bank cannot in an action against him by the assignees of the bank for the benefit of its creditors, set up as a defence to such action that the deed of assignment was in contravention of the bankrupt Act. Shryock v. Bashore. 360.

In an action for breach of covenant in failing to purchase land, the vendee cannot set up as a defence to such action that at the time of the agreement of sale, the vendor was insolvent, for the purpose of showing that the title might have been impeached by an assignee in bankruptcy, unless he show that the agreement of sale was entered into with fraudulent intent by the vendor, of which intent the vendee had knowledge. Weaver v. Zimmerman. 56.

BENEFICIAL ASSOCIATIONS. See HusBAND AND WIFE. Berlin Beneficial Association v. March. 55.

BILLS OF EXCHANGE AND PROMISSORY NOTES. (a) Rights of holder. lu an action on a bill of exchange by the holder against the acceptor, an affidavit of defence containing merely general allegations that the acceptance was procured out of the usual course of business and by means of false statement, is insufficient. Matthews v. Long. 512.

In an action against the maker by an endorser, an affidavit of defence setting out facts constituting a good defence against the payee is sufficient if it avers that the defendant expects to be able to prove and show on the trial that the plaintiff is not the owner and holder for value, and before maturity of the note in suit, but the same was handed to him by the payee for the purpose of bringing suit and debarring the maker from a defence. Moeck v. Little. 341.

The holder of a promissory note may strike off an irregular endorsement through which he has not derived title placed before that of the payee. Rand v. Dovey. 549.

(b) Endorser, liability of. The liability of an endorser is not released by the omission of an actual protest of the note; an averment filed with the copy of the note that the defendant waived notice, if not denied in the affidavit of defence, is sufficient. Eby v. National Fire Ins. Co. 487.

As to validity of note dated on Sunday, see Bear v. Trexler, 214 (note).

See AGENT (a) Horter v. Silliman. 405. USURY. BILL OF LADING. A broker, purchasing goods for his principal, can pledge the bill of lading therefor, for the payment of a draft drawn on the principal, as cons gnee, for the price of the goods. See AGENT (a). Millar v. St. Louis Saving Association. 480.

BOOK ENTRIES. Entries against one partner, when evidence against firm. See EVIDENCE (f). Bear v. Trexler. 214.

376.

CAPITAL AND INCOME. DECEDENTS' ESTATES (ƒ).

What is. See

CERTIORARI. (a) In road cases. The distinction between a certiorari and an appeal is marked; a certiorari brings up the record only, and upon such writ the appellate Court can look merely at the regularity of the proceedings.

The Act of 23 March, 1829, which provided that no certiorari shall issue to the Quarter Sessions of Philadelphia County in road cases, unless upon an affidavit of the party, and a special allocatur by the Supreme Court is still in force. McIlvaine's Appeal, In re 34th Street. 130.

(b) In partition. Although a certiorari only brings up the record, if upon its face it appears that the Court have taxed an excessive counsel fee as part of the costs upon a manifestly erroneous interpretation of the law, the Court will give all the effect of a writ of error to such certiorari, and reverse the Court below in a case where no adversary rights can be impaired, and it affords the only means of averting an injustice. Grubb v. Grubb. 177.

See LANDLORD AND TENANT (c). De Coursey v. Guarantee Trust Co. 65.

CHARGE OF COURT. See ERRORS AND APPEALS (a), (b). Ins. Co. v. Bair. 126.

CHARITABLE USE. See CORPORATION (e). Bethlehem v. Perseverance Fire Co. 104.

COLLECTION AGENCY. Liability of, to employer. See ATTORNEY AND CLIENT. Wickersham v.

XVI., 4. Schedule,

2.

Corporations. 549. Actions. 467.