Sloan v Sloan.

is nothing to indicate an effort to give personal notice and a failure to find respondent, and thereby lay the ground for proceeding ex parte after notice by advertising..

Further comment is unnecessary.

ORDER.

And now, May 15, 1920, all proceedings subsequent to the appointment of the Master set aside.

Lowery v Nixon Theatre Company, a Corp.

Trespass- -Amendment to Original Claim Two Years After Filing-Cause of Action.

An amendment to a statement of claim in trespass to recover damages for personal injuries was allowed more than two years after filing the claim because the amendment did not change the cause of action and would not harm the defendant in any way.

Rule to Amend Statement of Claim. No. 1360 July Term, 1919. C. P. Allegheny County.

Wm. R. McCommon and Wm. T. Tredway, for plaintiff.
Patterson & Bradshaw, for defendant.

DREW, J., April 26, 1920.-On May 29, 1919, plaintiff filed her statement in trespass against defendant for compensation for personal injuries sustained on November 13, 1917. More than two years after the cause of action had accrued, on March 5, 1920, she took this rule to show cause why said statement shall not be amended.

The statement shows the cause of action is the alleged defective and negligent placing of a rug in the entrance of a theatre which caused plaintiff's foot to catch, resulting in a fall.

The amendment proposes to add to the statement that defendant "failed to properly light its theatre" as a result of which "faulty lighting" and the negligent placing of the rug the accident happened.

Would the allowance of this amendment, after the statute has barred a new action, result in permitting plaintiff to substitute a different cause of action from that originally declared on? We think not. She still maintains that at the time and place mentioned in the original statement, she was injured by catching her foot in a rug negligently placed and falling. She simply adds to that, that the place was not properly lighted at the time. There is nothing in the amendment to change the character of the negligent act complained of. The cause of action has not been changed. Terrell v Pittsburgh Railways Company, 58 Superior Court, 371; McCollough v Philadelphia Rapid Transit Company, 61 Superior Court, 384. We see no possible harm to the defendant in the amendment. Rule to amend absolute.

Judgments

Stevens v Brown.

Written Point at Trial-Exception to Charge Act of April 22, 1905, P. L. 286.

The strict rule that judgment n. o. v. cannot be entered unless the record shows that written points were submitted at the trial is not changed by the Act of April 22, 1905, P. L. 286, which requires that a point requesting binding instructions must be reserved or declined.

Where there is nothing on the record upon which a losing party could move for judgment, it would be error for the Court to entertain a motion for judgment n. o. v.

Motion for Judgment for Defendant Non Obstante Veredicto. C. P. Lancaster County.

J. E. Senft, for motion.

F. Lyman Windolph, contra.

LANDIS, P. J., December 27, 1919.-M. H. Brown was conducting a general store business and had three stores in the Borough of Columbia. One of these stores was located at 255 Locust Street. The defendant employed there his son, John M. Brown, and a man by the name of Elmer Henry. On May 18, 1916, a man by the name of Bruce Green, who represented the firm of Donald-Richard Company, came to the Locust Street store, and at that time an order was given to him, with a note attached, for a lot of perfumery and toilet goods, as set forth in the plaintiff's statement. A note for $148.00 was given, and it was made payable in four payments of $37.00 each, in two, four, six and eight months. An order was also signed, "M. H. Brown," and the note was signed, "M. H. Brown, Per J. M. Brown." The defendant did not see either of these papers, but his name was appended thereto by J. M. Brown, his son. The goods mentioned in the order were shipped to M. H. Brown, and when they arrived at the store, they were not received, Brown disavowing all authority in his son to order the goods. The sole question for the considerationn of the jury was, whether or not the son was authorized, under a general authority, to give an order of this character. This question, with all the evidence produced, was submitted to the jury, and they found a verdict in favor of the plaintiff for $148.00. No point was submitted to the Court by the defendant, and no exceptions were taken by either party to the Charge of the Court. Notwithstanding this, the defendant, on September 22, 1919, filed a motion that judgment be entered in favor of the defendant non obstante veredicto, and he is met with the objection that no point was reserved.

In Kiefer v Eldred Township, 110 Pa. 1, it is said that “to authorize the entering of a judgment non obstante veredicto the record must show distinctly what point is reserved"; and in Miller v Bedford, 86 Pa. 454, "that where the record does not show what the reserved points are, the entry of judgment non obstante veredicto is without warrant." In Patton v Pittsburgh, Cincinnati and St. Louis Railway Co., 96 Pa. 169, the Court held that "every reservation of a question should place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises.

It is, however, suggested that this strict rule is changed by the Act of April 22, 1905, P. L. 286. That Act reads as follows: That whenever, upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the Court shall allow, move the Court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the Court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence, at the same time granting to the party against whom the decision is rendered an exception to the action of the Court in that

Stevens v Brown.

regard." It is manifest that this Act is of no avail to the defendant in the present case. There is nothing on the record upon which he could move for judgment, and it would be error in the Court to entertain such a motion and act upon it. The motion for judgment for defendant non obstante veredicto is, therefore, denied.

Motion denied.

McBeth v Googins.

Judgment-Default of Affidavit of Defense-Petition to Open-Procedure -Sufficiency of Statement.

་

When defendant seeks to have a judgment entered in default of an affidavit of defense opened the proper practice is to present an affidavit of defense with his petition to show that he has a full and complete defense to the whole of plaintiff's claim.

Plaintiff's statement of claim based upon a verbal contract and which did not allege an express or implied contract on the part of defendant to pay a definite sum for services rendered will not support a judgment in default of an affidavit of defense, said judgment being fixed at a definite amount as damages and rule to open judgment absolute.

Sur Rule to Open Judgment. No. 266 April Term, 1920. C. P. Allegheny County.

Harry I. Miller, for plaintiff.

R. P. & M. R. Marshall, for defendant.

SHAFER, P. J., March 12, 1920.-The action is assumpsit, and judgment was taken for plaintiff in default on appearance. Counsel for 'defendant alleged that the defendant brought to them a copy of statement of claim, purporting to be entered in the County Court, and that they failed to enter their appearance on account of that mistake, and the first that the defendant knew of the default was after the judgment was taken, and alleged that the defendant has a full and complete defense to the whole of plaintiff's claim.

The proper practice on the part of the defendant would have been to present, with his petition to open the judgment, the affidavit of defense which he proposed to make. An examination of the affidavit of claim, however, is sufficient to show that the plaintiff is not entitled to a liquidated judg ment such as he has taken in this case. The gist of the affidavit is that the plaintiff and defendant entered into a verbal agreement whereby the plaintiff agreed to make arrangement for taking over certain property of a third person, on a certain consideration, and that then the plaintiff made abstracts of the property and attended various meetings of creditors of the third person, and that then the defendant refused to go on and make the arrangements, and that thereby he lost the benefit of work he had been doing for sometime and thereby he was damaged to the extent of $1,000. He does not allege any express or implied contract with the defendant to do anything for him, to pay him anything, or in fact set up any cause of action whatever. The rule is therefore made absolute.

White v. Rosenbaum Company.

Malicious Prosecution—Mistaken Identity-Notice-Pleadings—Appeal.

Where in an action of trespass for malicious prosecution the statement did not contain an averment that the defendant knew before it brought suit against the plaintiff that she was not indebted to it in any way, it was held error to give binding instructions for defendant. The admissibility of evidence under the pleadings must be determined by the trial judge.

Trespass. Appeal from Judgment of County Court. Affidavit of Defense Raising Question of Law. No. 777 April Term, 1918. C. P. Allegheny County.

James T. Buchanan, for plaintiff.
Weil & Thorp, for defendant.

Before SHAFER, P. J., and CARPENTER, J.

CARPENTER, J., March 19, 1920.-The facts appearing of record, so far as same are material and relevant for present purposes, are as follows:

Rosenbaum Company brought suit against the plaintiff herein, before an alderman, to recover the amount alleged to be due on a book account. Judgment was entered against the defendant in that action, and thereafter execution was issued and returned "No Goods." On the same day an execution attachment was issued and certain tenants of the defendant summoned as garnishees. An appeal was taken to the County Court and subsequently the case was discontinued and costs paid by the Rosenbaum Company. An appeal was taken by Mrs. White in the execution attachment and subsequently judgment of non pros. was entered, and thereafter the costs were paid by Rosenbaum Company.

On September 15, 1917, an action in trespass was begun in the County Court for the recovery of damages. That action was tried and resulted in a verdict for defendant by direction of the trial Judge. The plaintiff then filed her petition for leave to appeal to the Court of Common Pleas. The petition was dismissed and thereafter, on appeal to the Superior Court, the judgment was reversed and an appeal allowed. Plaintiff having filed her statement, defendant filed and affidavit of defense, in the nature of a demurrer, raising the question now before us.

The statement, the sufficiency of which is here attacked, is, with some additions, a copy of the statement filed in the County Court. It does not change the cause of action. In the light of the opinion of the Superior Court, by Keller, J., in which the facts and the law applicable thereto are set out fully, we cannot sustain defendant's contention. While the statement does not contain an averment that the defendant knew before it brought suit against the plaintiff that she was not indebted to it in any way, the Superior Court has said it was error to give binding instructions for defendant. The admissibility of evidence under the pleadings will be determined by the trial Judge.

ORDER.

And now, March 19, 1920, the Court being of opinion that on the question raised the law is with the plaintiff, judgment for defendant is refused.

NOTE-This was a case of mistaken identity. The opinion of the Superior Court reported in 73 Superior, 99, is interesting in relation to actions for malicious prosecution.-EDITOR.

Registration

In re Architect's License.

-Applicant Not Qualified-Return of Fee-Act of July 12, 1919, P. L. 933.

Under the provisions of the Act of July 12, 1919, P. L. 933, relating to the licensing of architects, the registration fee should not be returned when the applicant is found unfit to receive a certificate from the State Board of Examiners. OFFICE OF THE ATTORNEY GENERAL,

This department is in receipt of your communication, asking whether the fee paid by an applicant can be returned to the applicant when the board has found him unfit for registration.

The Act of July 12, 1919, P. L. 933, provides for a State Board of Examiners of Architects, who conduct examinations and issue certificates of qualifications to persons desiring to practice architecture in this Commonwealth. The Act also provides for the registration of persons to whom certificates have been issued.

Section 7 of this Act provides:

"Every person applying for examination or certificate of qualification and registration under this Act shall pay a fee of $25 to the secretary of the board of examiners."

Each member of the board of examiners is paid $10 per diem while actually engaged in attendance at meetings, or in conducting examinations, and also his actual traveling, hotel, clerical and other expenses incurred in the performance of the duties imposed by this Act of Assembly. The board is authorized to pay a secretary at a salary which shall not exceed $500 per annum.

Section 4 of this Act of Assembly also provides, in part:

Treasury."

"All fees provided for by this Act shall be paid to and receipted for by the secretary of the board, and shall be paid by him monthly into the State Treasury."

Where one applies to this board for a certificate of any character, it imposes the necessity upon the board to make a sufficient examination into the qualifications of the applicant. The expense of this examination is met, at least in part, by the fee which the applicant is required to pay. When an applicant has imposed upon the board the duty of making such examination, it would be unreasonable to return to the applicant the fee which he has paid, merely because the applicant has made an application to practice a profession for which the board finds him unfit.

Moreover, this Act of Assembly provides for the payment of the fees into the State Treasury. After they are paid into the State Treasury there is no way of getting them out except by an appropriation.

It is, therefore, apparent that it was not the intention of the Legislature that the fee for examination or certificate of qualification, and registration, should be returned to the applicant in the event that he is found unfit for registration.

Very truly yours,

WM. M. HARgest, Deputy Attorney General.