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University of Pennsylvania
And American Law Register
Published Monthly, Except July, August and September, by the University
of Pennsylvania Law School, at 236 Chestnut Street, Philadelphia, Pa.,
and 34th and Chestnut Streets, Philadelphia, Pa.
Volume 64 January, 1916. Number 3
THE PENNSYLVANIA PRACTICE ACT OF 1915.
The Practice Act of 191 5 1 relates exclusively to pleading
and to motions in relation to pleadings. It might therefore
properly have been called the Pleading Act of 1915, and it is the
last of a long series of steps by which through Acts of Assembly
and rules of the courts of Common Pleas, Pennsylvania has
abandoned the common law system of pleading in favor of a
modern and simplified form.
The desire for simplicity in pleading may be said to be con-
genital to the Commonwealth of Pennsylvania for even before
the establishment of the colony, William Penn dreamed of a
system of laws so plain and pleadings so simple that every person
could plead his own cause, and it was so provided in his laws
agreed upon in England and embodied in the Act of March 10,
1683. 2 One of the first acts, that of October 28, 1701, entitled
"An Act for establishing Courts of Judicature in this Province
and counties annexed" was repealed by the Queen in Council on
1 Act of May 14, 1015, P. L. 483. In Sec. 24 it is provided that this act
may be cited as "Practice Act 1915."
'"The Courts of Pennsylvania in the 18th Century, Prior to, the Revolu-
tion," by William H. Loyd, 56 Univ. of Penna. Law Review, p. 46. See also
"The Courts of Pennsylvania in the Seventeenth Century," by Lawrence
Lewis, Jr., Report of Penna. Bar Ass'n, 1895, PP- 362-363.
224 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
February 7, 1705, one of the objections being a clause which
directed that the practice, while following that of the Common
Pleas of England, should keep to plainness and verity and avoid
"all fictions and colour in pleadings." 3 Although looseness in
pleading was characteristic of the very early procedure, due
probably to lack of knowledge of English precedents and lack
of trained lawyers in the colony as well as to the comparative
simplicity of the legal problems that were presented for adjudi-
cation, with the change in these conditions a more refined system
of pleading based on English models came into use. 4
After the Revolution, and under the influence of the prin-
ciples of the French Revolution, a deep seated antagonism to
English precedents manifested itself among the more radical
elements among the citizens and culminated in the passage of the
Act of March 19, 1810, P. L. 136, which provided "that it should
not be lawful to read or quote in any court of this Commoinr
wealth any British precedent or adjudication which had been
given or made subsequent to the 4th of July, 1776, except those
relating to marine law or the law of nations." 5
*2 Statutes at Large, 148 and 440, and see Loyd, 56 Univ. of Penna. L.
Rev., p. 29, supra, note 2.
* Loyd, p. 47, supra, note 2. The course of practice in the County Courts,
and particularly in those of Chester, Bucks, and Philadelphia Counties, was
much more regular than has been generally supposed. Although the justices
were never men of any regular legal training, they were doubtless familiar by
form books or from hearsay with the ordinary mode of conducting legal
proceedings, and at any rate were invariably solicitous to maintain the dignity
and propriety of their respective courts. See Lawrence Lewis, Jr., in Reoort
of Penna. Bar Ass'n, 1895, p. 361, supra, note 2. The increase of population,
business, and commerce soon led to difficulties in the administration of justice
which required for their unravelling a more artificial course of procedure and
a more thoroughly trained bench and_ bar. The dictates of natural justice
gave way to the authority of well-considered precedents, the science of special
pleading by insensible degrees obtained a foothold in the legal practice of
the Province, and at length the sound of "oyers" and "imparlancesf' became
almost as familiar to the ears of the Pennsylvania practitioner as to those of
his bewigged and begowned brother in Westminster Hall. The days of
primitive simplicity had been left behind and forever. See Lewis Ibid., p. 402.
"On this and other matters relating to the courts of Pennsylvania from
the earliest times to the end of the first quarter of the 19th century, see the
articles of Professor William H. Loyd and Lawrence Lewis, Esq., above
referred to and also an article by Professor Loyd entitled "The Courts From
the Revolution to the Revision of the Civil Code," 56 Univ. of Penna. Law
Review, 88, and Professor Loyd's work on "Early Courts of Pennsylvania,"
containing the substance of the above two articles and additional matter.
THE PENNSYLVANIA PRACTICE ACT OF 1915 225
It was probably under the influence of this radical sentiment
that the bar of Pennsylvania first departed from the English
common law system of pleading, and on September 11, 1795,
by an agreement signed by all the attorneys practicing in
the Supreme Court, except two, established a practice which is
the parent of the Pennsylvania affidavit of defense law and, in
a certain sense, of the present Practice Act of 1915. Thirty-
eight attorneys signed the agreement 6 which provided in sub-
stance that in all actions in the Supreme Court either by original
process or by removal from any inferior court, the defendant's
attorney should confess judgment to the plaintiff at the third court
unless the defendant or some person for him or her should make
an affidavit at or before the second term that "to the best of his
knowledge and belief there is a just defense in whole or in part
in the same cause." If the defense were to part only, then judg-
ment should be confessed for as much as should be acknowledged
to be due to the plaintiff, provided the plaintiff's attorney would
accept such confession of judgment in full satisfaction of his
In 1799, after full experience of the effect of this practice
thus instituted by agreement of the Bar, the Supreme Court
adopted a rule embodying the provisions of this agreement,
making the practice compulsory for the Circuit Court which was
then held by the Justices of the Supreme Court. The Common
Pleas of Philadelphia in 1809 and the District Court in 1812
adopted similar rules. 8 While this practice resulted in termi-
nating a number of suits, two classes of cases were obviously
withdrawn from its operation, viz., those in which a supposed
defense existed, and those in which the defendant, who would
have hesitated to swear falsely as to particular facts, felt no
hesitation in making the vague and indefinite affidavit required
by the rule. The need for improvement in the practice to meet
'See Appearance Docket of the Supreme Court for September Term,
1795. PP- 628-29.
'Vanatta v. Anderson, 3 Binney 417-423 (1811). See also Gustav A.
Endlich, "The Law of Affidavits of Defense in Penna.," 1884, PP. 1, et seq.
' 1 Troubat & Haly's Practice (5th Ed.), p. 219.
226 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
this difficulty at length found expression in the Act of 1835 9
which, although applying only to the District Court of Phila-
delphia, became the model on which the later special Acts of
Assembly for different counties, and rules of court where formu-
lated, 10 and the old rules of court, which, in the language of
Judge Brackenridge u rendered the making of the affidavit of
defense "embarrassing to a tender, and ensnaring to a hardy
conscience" were improved by the legislative requirement that
the affidavit of defense must set forth the nature and character
of the defense, giving the facts upon which the defense is based
and leaving it to the court to determine whether or not in law
they constituted a legal and proper defense. 12 Although the
practice originally laid down in the Act of 1835 was extended
by special Acts of Assembly and by rules of court to nearly all
of the counties of Pennsylvania, 131 the plaint of Chief Justice
Black 14 "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" was not finally answered until the enactment
of the Procedure Act of 1887. 15
In addition to the affidavit of defense system thus originated
by agreement of counsel in 1795, another change in pleading was
made at an early date which ultimately resulted in the abolition
of the common law declaration and the substitution of the
modern statement of claim. By the Act of 1806, 16 the object of
which was to dispense with form so that every man might be
•Act of March 28, 1835, §2, P. L. 89.
"Endlich, p. 4, supra, note 7.
"Vanatta v. Anderson, p. 425, supra, note 7.
"This Act of Assembly was extended to the Courts of Common Pleas
of Philadelphia by the Act of April 14, 1846, P. L. 328, and to all of the
Courts of Common Pleas of the Commonwealth by the Act of April 3, 1861,
$ 8, P. L. 307. The latter act, however, was repealed by Act of March 8,
1852, P. L. 121.
u For full detail as to the special statutes and rules of court under which
the affidavit of defense system was administered prior to the Act of 1887,
see Endlich on Affidavits of Defense, Chap. 2, supra, note 7.
"Lord v. Ocean Bank, 20 Pa. 384 (1853).
" Act of May 25, 1887, P. L. 271.
" Act of March 21, 1806, § 5, 4 Sm. L. 328.
THE PENNSYLVANIA PRACTICE ACT OF 1915 227
his own lawyer, 17 it was provided that in all cases for the recov-
ery of any debt founded on a verbal promise, book account,
note, bond, penal or single bill or all or any of them, that is to
say a specific class of debts, simple in their character, plain in
the evidence to prove them and involving ordinarily nothing more
than the right to money, 18 it should be the duty of the plaintiff,
either by himself, his agent, or attorney, to file in the office of
the prothonotary a statement of his, her, or their demand on or
before the third day of the term to which the process issued is
returnable, particularly specifying the date of the promise, etc.,
on which the demand is founded and the whole amount that he,
she, or they believe is justly due from the defendant. 19
To this statement of the plaintiff, it became the duty of the
defendant, at least twenty days before the next succeeding term
to which the process issued was returnable, similarly to file a
statement of his, her, or their account, if any, against the plain-
tiff's demand, and particularly specifying what .the defendant
believed to be justly due to the plaintiff. 20 After the statement
of defense was filed, the parties had to appear at the time fixed
in the act before the court. If the plaintiff failed to appear,
nonsuit was entered; if the defendant failed to appear, and
make defense, judgment was given by default for the sum which
appeared to be due.
When, under the Procedure Act of 1887 the substitute for
the common law declaration was defined, it was provided that it
should consist of a concise statement of the plaintiff's demand
as provided by the fifth section of the Act of the 21st day of
"Per Tilghman, C. J., in Bailey v. Bailey, 14 S. & R. 195-199 (1826).
"Per Sergeant, J., in Lomis v. Ruetter, 9 Watts, 516-521 (1840).
u The statement under this act was not confined to any particular form,
Purviance v. Dryden, 3 S. & R. 402 (1817), and as the object of the act was
to enable suitors to conduct their cases without the intervention of counsel, the
statement was not required to be prepared with the same precision of aver-
ment as a declaration. Boyd v. Gordon, 6 S. & R. 53 (1820).
"The forms of plaintiff's and defendant's statements under this act are
given in Smith's Forms of Procedure, 1872, pp. 587-588. When the statement
was filed by the plaintiff, it was not obligatory on the defendant to put in a
counter-statement within the meaning of the act, and if he pleaded technically
to it as to a declaration, this was held sufficient. 1 Troubat & Haly's Prac-
tice (5th Ed.), p. 214, §392-
228 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
March, 1806, and that in the action of assumpsit this statement
should be accompanied by copies of all notes, contracts, and book
entries, upon which the plaintiff's claim is founded. The latter
provision was taken from the affidavit of defence act of 1835.
Under the Act of 1806, a statement of the plaintiff's claim with-
out a copy of the instrument upon which the claim was founded,
was sufficient. Under the Act of 1835 a copy of the instrument
on which the plaintiff's claim was founded without an accom-
panying declaration or statement was sufficient to entitle the
plaintiff to judgment if no affidavit of defense was filed. In the
Act of 1887 the two provisions were blended and both a state-
ment of claim and a copy of the instrument upon which the claim
was founded, were required. 21
The Act of 1887 was bitterly attacked both before and after
its passage notwithstanding the fact that when historically con-
sidered and in the light of the existing practice under the special
statutes and local rules of court, there was practically nothing
new in it on the subject of pleading. But notwithstanding the
criticisms of the act, notably those of the late Chief Justice
Mitchell, the Bar of Pennsylvania is convinced of the advantage
of the modern system of pleading which requires statements of
claim and defense in accordance with the facts rather than
technical common law pleadings which gave little information
and were based largely on legal fiction. 22
After several years of experience under the Act of 1887 had
demonstrated that much of the adverse criticism of the act was
due largely to fear of the unknown and that in the main the act
had justified itself, attempts were made to further improve the
"Under some of the special Acts of Assembly and rules of court a
statement was also required in addition to the copy of the instrument for
which the affidavit of defense could be required, so that the practice of the
Act of 1887 was no doubt suggested by the practice existing in many of the
counties of the state in which the provisions of the two acts of 1806 and
1835 had been blended.
™ The Bar of Pennsylvania can endorse the conservative statement made
by the late Judge Charles H. Noyes in speaking of the abolition of the old
actions and the substitution of the statutory actions of assumpsit and trespass
that "on the whole we have not suffered any loss and even the practical
abolition of pleadings has caused surprisingly little inconvenience." See ad-
dress delivered before the Warren County Bar Association on December 12,
1891, entitled "Procedure in Pennsylvania." 49 Leg. Intel. 135.
THE PENNSYLVANIA PRACTICE ACT OF 1915 229
procedure. 23 As late as 1895 General Beaver who, as governor,
had signed the Procedure Act of 1887 and who subsequently
became one of the Justices of the Superior Court of Pennsyl-
vania, 24 said, "Although I signed the Procedure Act of 1887 I did
so with a great deal of reluctance. I rather like the old plead-
ing", 25 a naive statement indicating the real basis for much of
the opposition to procedural reform. The average lawyer has
neither the time nor the inclination to study problems of law
reform. He is for the most part indifferent to efforts made by
his more active brethren at the bar and if a proposed reform in
any way threatens to interfere with that which has become
familiar to him through long usage, he may be counted on for
vigorous opposition. Like General Beaver "he rather likes the
old pleading" and as any change will require him not only to
study new law but to readjust himself to general changes which
such a law will introduce, he will be found to come forward with
the well worn but still vigorous argument that as the present
practice has been followed in the courts of this state since the
foundation of the Commonwealth, any changes will be sure to
be followed by great disaster to the public and the bar. An
examination of the records of the Pennsylvania Bar Association
** Since 1887, and under the influence of the reforming spirit then aroused,
a number of acts relating to procedural reform have been passed. Among
them may be mentioned the Evidence Act of May 23, 1887, P. L. 158; the
Stenographers Act of May 24, 1887, P- L. 199; the Procedure Act of May
25, 1887, P. L. 271; the Escheats Act of May 2, 1889, P. L. 66; the Ap-
peals Acts of May 9, 1889, P. L. 158, May ig, 1897, P- L. 67, and May 5,
1899, P. L. 248; the Mandamus Act of June 8, 1893, P. L. 346; the Superior
Court Act of June 24, 1895, P. L. 212 ; the Sheriff's Interpleader Act of May
26, 1897, P. L. 95; the Replevin Act of April 19, 1901, P. L. 88; the Eject-
ment Acts of May 8, 1901, P. L. 142, April 16, 1903, P. L. 212, and June 7,
1915, P. L. 887; the Municipal Claims Act of June 4, 1901, P. L. 364 and
367; the Insolvency Act of June 4, 1901, P. L. 404; the Mechanics' Liens
Act of June 4, 1901, P. L. 431; the Service of Process Act of July 9, 1901,
P. L. 614; the Execution Acts of April 8, 1905, P. L. 122 and April 20,
1905, P. L. 239; the act of May 5, 191 1, P. L. 198, establishing the Allegheny
County Court; the act of May 11, 191 1, P. L. 279 relating to exceptions and
record; the act of July 12, 1913, P. L. 711, establishing the Municipal Court
of Philadelphia; the act of June 11, 1915, P. L. 935 relating to tender of
judgment or payment in matters sounding in tort; the act of June 5, 1915,
P. L. 847 relating to commencement of proceedings in equity by summons.
24 He served from the organization of the Court in 1895 to the time of his
death in January, 1914.
"Report of Pennsylvania Bar Association 1895, p. 53.
230 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
will show that efforts in the direction of law reform, both in
substantive law and procedure, are being constantly put forward
by a very small but vigorous minority and carried, when carried
at all, in the face of opposition which, as a rule, presents argu-
ments but no reasons. 26
Among the bills proposed for further extending the pro-
cedure under the Act of 1887 was one drawn by the Hon. John
B. McPherson. 27 This bill was rather vigorously debated at the
meeting of the Bar Association, in 1902, and again presented in
the following year 28 but neither this act nor any other was passed
by the Legislature. In 191 2 an act was presented by the Com-
mittee on Law Reform of the Pennsylvania Bar Association 29
which was the subject of discussion and amendment in 1912,
19 1 3 and 1 91 4, and which finally became the present Practice
Act of 1915.
In 19 1 3 a Practice Act was introduced in the Legislature but
failed of passage. 30 In the same year an important procedural
reform was instituted in Philadelphia by the new rules of court
adopted by the Court of Common Pleas for that county. These
rules, in so far as they related to the pleadings and were not
merely reenactments of older rules, were suggested by the
English practice under the English Supreme Court rules of
1883. 311 The Practice Act of 1915 may properly be said to be
compounded of provisions taken from the Procedure Act of 1887
and the rules of the Court of Common Pleas of Philadelphia
This cursory review of the progress of reform in pleading
in Pennsylvania, points to four great landmarks : the agreement
* A pertinent illustration may be found in the Pennsylvania Bar Association
Report of 1914, pp. 205-210.
"Then Judge of the District Court of the United States for the Eastern
District of Pennsylvania, and now a member of the Circuit Court of Appeals
for the Third Circuit, and formerly president Judge of the Court of Com-
mon Pleas of Dauphin County.
"Report of Pennsylvania Bar Association for 1902, pp. 117 to 121; 262
to 274; 277 to 294; Report for 1 903, p. 66.
"See Report 1912, p. 69.
"House Bill 455.
31 See Rules of Court of Common Pleas of Philadelphia County in effect
March 3, 1913, relating to pleadings, being rules 41 to 71.
THE PENNSYLVANIA PRACTICE ACT OF 1915 231
of attorneys in the Supreme Court in 1795, the Statement Act of
1806, the Affidavit of Defence Law in 1835, and the Procedure
Act of 1887.
We shall now consider the Practice Act of 191 5 in detail,
examining its provisions in the light of the existing practice and
noting the changes that it introduces.
The title reads : "An Act relating to practice in the courts
of common pleas in actions of assumpsit and trespass, except
actions for libel and slander; prescribing the pleadings and pro-
cedure to be observed therein, and giving the courts power to
enforce its provisions." n
The use of the word "practice" is misleading since the act
relates entirely to the pleadings and to motions in relation to
the pleadings. The word "procedure" in the second part of the
title is likewise misleading since it, as the act shows, means merely
procedure relating to pleadings. A more exact form of the title
would have been, "An Act prescribing the pleadings in the Courts
of Common Pleas in actions of assumpsit and trespass, except
actions for libel and slander, and the procedure relating to such
pleadings; and empowering the said courts to enforce its pro-
visions." Strictly speaking practice is a branch of procedure —
procedure including practice, pleading, and evidence. Sometimes
"practice" is used as synonymous with "procedure" but never
properly with "pleading". An act relating to "practice" would be
one relating not merely to the pleadings in the actions of assumpsit
and trespass but to pleadings in all actions and to all of the steps
from the commencement of an action, through proceedings prior
to trial, verdict, judgment, appeal, execution, and distribution by
the sheriff. A Practice Act of this character is the New Jersey
"The act is divided by the following subheadings: The Pleadings Gen-
erally, §§2 to 8; Statement of Claim, §§9 to 11; Affidavit of Defense,
§§ 12 and 13; Set-Off and Counter-claim, § 14; Plaintiff's Reply, §§ 15 and 16;
Motions for Judgment, §§ 17 to 19 ; Proceedings in Lieu of Demurrer, § 20 ;
General Provisions, §§21 to 25.
232 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
Practice Act of 1912, which covers many of these topics and
authorizes the courts to adopt rules practically covering all of
Scope of the Act.
Section i. "Be it enacted, &c, That from and after Janu-
ary first, one thousand nine hundred and sixteen, in actions of
assumpsit and trespass, except actions for libel and slander,
brought in any court of common pleas, the procedure shall be as
The actions of assumpsit and trespass herein referred to are
the actions as defined in the Procedure Act of 1887, assumpsit
including debt, assumpsit, and covenant ) and trespass includ-
ing trespass, trover, and trespass on the case. Following the
English, 33 Ontario, 34 and New Jersey 3B practice, the distinction
in procedure between all actions ex contractu and ex delicto was
obliterated in the original draft of the Practice Act as presented
to the Pennsylvania Bar Association, 36 wherein it was provided
that all of the above named actions should be called "actions"
without further designation, but this suggestion was not
33 Under Order I (1875) and O. I, R. 1 of the Rules of the Supreme
Court (1883) it is provided that "all actions which, previously to the com-
mencement of the Principal Act, were commenced by writ in the Superior
Courts of Common Law at Westminster or in the Court of Common Pleas
at Lancaster, or in the Court of Common Pleas at Durham, and all suits
which, previously to the commencement of the Principal Act, were com-
menced by Bill or information in the High Court of Chancery, or by a
cause in rem or in personam in the High Court of Admiralty, or by citation
or otherwise in the Court of Probate, shall be instituted in the High Court
of Justice by a proceeding to be called an action."
84 The Rules and Practice and Procedure of the Supreme Court of Ontario
(in civil matters), 1913, provide for "actions," Rules 3 b. and 5; and proceed-
ings commenced by "originating notices," Rule 10.
85 The Practice Act (1912) of the State of New Jersey, §3.
86 Report of Pennsylvania Bar Association, 1912, p. 69, § 1.
"The concurrent suggestion to abolish writs of summons in such cases
and commerce actions by filing a statement of claim in the prothonotary's
office, and serve the same in the same manner as is now provided for the
service of writs of summons by the act of July 9, 1901, P. L. 614, was likewise
rejected. The attempt to unify this procedure was long ago made in the
original Arnold bill which became the act of 1887 (44 Leg. Int. 70) and was
more recently repeated in the Wilson bills of 1913 (House Bill 1789) and
1915 (House Bill 132).
THE PENNSYLVANIA PRACTICE ACT OF 1915 233
The act is restricted to the pleadings in the Courts of Com-
mon Pleas and therefore will have no bearing on practice in the
Municipal Court of Philadelphia, and the Allegheny County
Court. Both of these courts have a procedure simpler and more
flexible than that which was prescribed for the Courts of Com-
mon Pleas, and the success of their procedure no doubt also
influenced the changes made by this act. 38
Exception of Libel and Slander.
Although under the Act of 1887 there is no distinction so
far as procedure is concerned between actions ex delicto, to wit,
trespass, trover and case, yet the Practice Act of 191 5 excepts
from its provisions the actions of trespass for libel and slander
and the procedure relating to these actions therefore remains the
same as under the Act of 1887, which act in so far as it relates to
actions ex delicto may now be taken to be the Procedure Act for
the actions of trespass for slander and libel exclusively.
It is difficult to say why all possible defenses in actions for
libel and slander could not have been made at least as well under
an affidavit of defense as under the present practice of pleas of
"not guilty" and "justification". Certainly the plaintiff would
have had more knowledge of the defense that was going to be
relied on at the trial. The English rules have a substantial equiv-
alent to the affidavit of defense in the "plea" and "particulars"
required in such actions. 39
Why did the Legislature except the actions of slander and
libel? The Bar Association did not so except them and it was
not until the act was read for the second time in the House of
Representatives that without any reasons the title was amended
to exclude the actions of libel and slander. 40
"The Municipal Court of Philadelphia was organized under Act of July
12, 1913, P. L. 711, and the Allegheny County Court under Act of May 5,
191 1, P. L. 198. Perhaps the strongest of all the influences making for sim-
plicity of procedure is the great success of the system in the Municipal Court
of Chicago. But the influence of the simple and efficient procedure of the
Pennsylvania Orphans' Court and of the Federal Bankruptcy Courts must not
"O. 19, R. 6, and see Annual Practice 1914, pp. 325, 326, 329, and 342.
"See House Bill 962, session of 1915, and Legislative Journal, pp. 928-9.
234 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
The Pleadings Generally.
Section 2. "The pleadings shall consist of the plaintiff's
statement of claim, the defendant's affidavit of defense, and,
where a set-off or counter-claim is pleaded, the plaintiff's reply
thereto. When the affidavit of defense, or, where a set-off or
counter-claim is pleaded, the plaintiff's reply thereto, is filed, the
pleadings shall be closed and the case shall be deemed to be at
issue, and no replication or formal joinder of issue shall be
Under the practice heretofore pleadings consisted of the
declaration, i. e., the statement of claim, and the plea. Formal
replications were generally omitted and cases were set down for
trial on filing of the plea. Said Mr. Justice Mitchell : 41
"An affidavit of defense in Pennsylvania practice is no part
of the pleadings, and has an entirely different function. It is a
mere step or incident of the proceedings required in order to prevent
a summary judgment by default. When it has served that purpose
its function is ended, unless further enlarged by express rule of
court. . . . The wholly different function of a plea is to raise
and make certain the issue on which the controversy between the
parties is to be fought out. With this the affidavit of defense has
nothing to do and it may be entirely disregarded and the case put
at issue on other grounds."
The change from this to the present practice is foreshadowed
in the Replevin Act of 1901, 42 which provides that the declaration
and affidavit of defense shall constitute the issues under which,
without other pleadings, the question of title or right of posses-
sion shall be determined; and in the Ejectment Act of the same
year, 431 which provides that in addition to the plea of "not
guilty" now required by law, the defendant shall file an answer
in the nature of a special plea, in which he shall set forth his
grounds of defense with an abstract of the title by which he
claims, and no action of ejectment shall be considered at issue
until the plaintiff's statement and the defendant's plea and answer
shall be filed. This "answer" is virtually an affidavit of defense
"Muir v. The Preferred Accident Insurance Co., 203 Pa. 338 (1902).
" Act April 19, 1901, P. L. 88, § 6.
a Act May 8, 1901, P. L. 142, § 2.
THE PENNSYLVANIA PRACTICE ACT OF 1915 335
and must be filed in order to put the case at issue. The function
of the affidavit of defense has in the two actions named been
enlarged beyond the scope of its purpose as laid down by Mr.
Justice Mitchell in the case above referred to. The mere for-
mality of the plea and the real character of the affidavit of
defense is emphasized in the practice whereby judgment might
be taken for want of an affidavit of defense or for want of a
sufficient affidavit of defense, or for part of the amount claimed
as to which the affidavit of defense is insufficient, or for the
amount admitted to be due.
The affidavit of defense gradually took the place in sub-
stance, though not in form, of the common law general and
special pleas, especially in those counties, like Philadelphia, in
which the defendant was restricted in his proofs to the allegations
of the affidavit of defense, and in which the rule as to notice of
special matter was abolished inasmuch as the affidavit of defense
took its place. 44 The purpose of the affidavit of defense system
here, as pointed out by Judge Endlich, 45 is threefold: first, to
avoid unnecessary time and expense in cases in which the defend-
ant would be bound to recover; second, to operate as a restraint
on unscrupulous or disingenuous defendants by requiring them
to swear to the truthfulness of a good and practicable defense;
and third, to secure to the plaintiff who has a good prima facie
case which the defendant on his own showing is unable to con-
trovert, a speedy judgment without the delay to which a strict
adherence to the common law forms of procedure would subject
44 Philadelphia Rules 60 and 61. The Allegheny Court Act of May 5,
1911, P. L. 198, provides in $7 for pleadings to consist of statement and
answer and the Philadelphia Municipal Court Act of July 12, 1913, P. L.
711, followed in §12 with a similar provision. The Practice Act of 1915
follows the line of development of the modern system thus pointed out.
The suggestion that pleas be abolished and that the case be at issue on the
filing of the affidavit of defense without further pleadings is made by the
late Judge Michael Arnold in his address on "Law Reform," 44 Leg. Int. 4.
In the case of Dickerson v. the Central Railroad of New Jersey, 7 D. R.
104 (1898), Judge Sulzberger said in speaking of the act of 1887: "It would
have been more logical and consistent to end the pleading with the affidavit
of defense. When this is filed, there is a substantial issue either of law
determinable on motion for judgment or of fact triable by jury. The addition
of mere formal pleas causes useless delay and mars a system directed against
vagueness and uncertainty."
"The Law of Affidavits of Defense in Pennsylvania, 1884, pp. 6, et seq.,
supra, note 7.
236 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
A further new feature in the pleadings is the plaintiff's
reply. As above stated, the common law replication had practi-
cally fallen into disuse. Where the defendant in his affidavit of
defense claims a set-off or counter-claim it is but just that the
plaintiff should be obliged to answer as specifically as the defend-
ant was obliged to answer the original claim of the plaintiff.
This is accomplished by means of the plaintiff's reply, which thus
reintroduces in modern form the old common law form of
The abolition of the formal joinder of issue is in line with
the general theory underlying this legislation. Issue could be
formally joined at any time when necessary by filing such a plead-
ing nunc pro tunc and yet some times, when overlooked, the
failure to do so might be the cause of delay. 47 As the practice
served no useful purpose, its abolition will cause no regret.
When the case was at issue, under the old practice, either
side might order it on the trial list. Under the present practice,
if the defendant, having filed his affidavit of defense, immediately
orders the case down for trial, the plaintiff may nevertheless take
his rule for judgment for want of a sufficient affidavit of defense.
It would seem to be desirable to establish the practice that if the
rule for judgment is discharged, the case should remain on the
trial list under the original order of the defendant, but that if
the rule for judgment is made absolute, the case should be stricken
from the trial list either on motion of the plaintiff or by the clerk
of his own motion. Perhaps a rule of court for the purpose of
settling the practice on this point will be required.
The Abolition of Pleas.
Section 3. "Pleas in abatement, pleas of the general issue,
payment, payment with leave, 48 set-off, the bar of the statute of
"This practice comes from the English Rules O. 19, R. 1, by way of the
rule of Philadelphia County (Rule 62). Under New Jersey Rules of Practice
16, the pleadings are: 1, complaint; 2, motion addressed to the complaint; 3,
answer ; 4, motion addressed to the answer ; 5, reply.
"Penna. Bar Ass'n Report 1912, p. 75, §4.
"There appears to have been no reason for referring to the plea of pay-
ment with leave since, under the Act of 1887, §7, the plea of payment with
leave is not permitted. Presumably, however, it was here included by reason
THE PENNSYLVANIA PRACTICE ACT OF 1915 237
limitations, and all other pleas, 49 are abolished. Defenses here-
tofore raised by these pleas shall be made in the affidavit of
The beginning of the reform consummated in this section,
is found in the act of 1887, which abolished special pleading and
retained in the action of assumpsit the pleas of "non-assumpsit,"
"payment", "set-off", and the bar of the Statute of Limitations;
and in the action of trespass the plea of "not guilty". Now the
requirement that defenses shall be set forth in the affidavit of
defense, taken together with the provision of section 16 of this
act, that neither party shall be permitted at the trial to make
any defense that is not set forth in the affidavit of defense or
plaintiff's reply, as the case may be, obviously makes the plea
entirely superfluous and justifies its abolition.
It would have been better to have allowed questions which
were formerly raised by pleas in abatement to be raised by some
method other than that suggested. As to dilatory pleas sub-
sequent to the statement of claim, the practice under section 3
may suffice, but what shall be the practice where the defendant
desires to plead in abatement to a writ where the return is perfect
on its face but is alleged to be false in fact ? Under the practice
prior to this act there was no other method than plea in abate-
ment whereby this question could be raised. Is this now to be
done by the affidavit of defense ? 50 In view of the obvious pur-
pose of the act to deal only with pleadings, does not a fair inter-
pretation of this section lead to the conclusion that a plea in
abatement when such plea is the only method allowed to attack
the service, can still be filed and that only dilatory pleas filed
after the statement of claim 51 were here aimed at, 52 and that
of the fact that notwithstanding the prohibition in the Act of 1887, the plea
of payment with leave was generally used by the bar.
"The words "all other pleas" seem to be superfluous, for since the Act
of 1887 no other pleas are allowed.
"This creates several technical difficulties. The affidavit of defense cannot
be filed until the statement of claim is filed and is tantamount to an appear-
ance and thus waives the question of jurisdiction over the person. If the fact
of the service be decided against defendant, would he still be provided for in
of the service be decided against defendant, would he still be entitled later on to
file an affidavit of defense to the merits as in cases provided for in Section 20?
"As in Phila. Rule 71.
a This may be fairly presumed to have been the view of the Committee of
the Penna. Bar Ass'n. See Report 1912, p. 76, $ 5.
238 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
the unfortunate phraseology of this section is due to too close
an imitation of the English model without noting the difference
between the English and Pennsylvania practice ?
The English rule, which no doubt was the inspiration for
this section, is as follows : "No plea or defense shall be pleaded
in abatement." The cases under this rule seem to be all cases in
which the defense of misjoinder of parties is raised, a defense
which might have been taken by way of a plea in abatement. 5 *
The remedy, under the English practice, is not to file an affidavit
of defense setting up such a defense but to take out a summons
to add or strike out or substitute a party. 84 Where the service of
the writ is to be attacked, the English rules do not permit a plea
in abatement but provide for an application to set aside the pro-
ceedings for irregularity 55 and this application is in the King's
Bench Division made by a summons, and in the Chancery
Division by a motion or summons or notice. If the party apply-
ing for the motion or summons has taken any fresh step after
knowledge of the irregularity, the application to set aside the pro-
ceeding will not be allowed. 58 For the purpose of attacking the
service of the writ, a conditional appearance may be entered with
a motion to set aside the service. 57
In the Pleading and Practice Act introduced in the legisla-
ture of 191 3, which bill failed of passage, it was proposed as
"Pleas to the jurisdiction, pleas in abatement and any other
dilatory pleas are hereby abolished. Every defense heretofore pre-
sentable by such pleas shall hereafter be made by motion as of
course setting forth the reasons therefor and where any matter of
fact is alleged therein, such motion shall be verified by affidavit." 58
"O. 21, R. 20. Annual Practice 1914, p. 365.
"O. 16, R. 12. "Any application to add or strike out or substitute a
plaintiff or defendant may be made to the court or a judge at any time before
the trial by motion or summons, or at the trial of the action in a summary
"O. 70, R. 2.
"Annual Practice 1914, p. 1293.
" O. 12, R. 30, and see Annual Practice 1914, p. 124.
" House Bill No. 1789, § is. In the New Jersey Practice Act of 1913,
THE PENNSYLVANIA PRACTICE ACT OF 1915 339
This practice would have been more logical and desirable
than that prescribed by section 3 of the Practice Act. It is not
desirable to call things essentially dissimiliar by the same name.
An attack on a writ or service of a writ is not a defense. It
negatives the idea of defense. It is an allegation that no defense
is necessary or required because the defendant is not subject to
the jurisdiction of the court.
The Abolition of Demurrers.
Section 4. "Demurrers are abolished. Questions of law
heretofore raised by demurrer shall be raised in the affidavit of
defense, as provided in section twenty."
Under the former practice, where the statement of claim did
not set forth a good cause of action, the established and only
way to raise the question was by demurrer and where the state-
ment of claim was not sufficiently specific, the method of attack
was by rule for more specific statement. 59 The latter practice or
the demand for a bill of particulars would seem to be still per-
missible under the Practice Act of 19 15. In some of the counties
demurrers were not allowed, even prior to the act of 191 5.
Under the English practice 80 it is provided that no demurrer
shall be allowed and that any party shall be entitled to raise by
his pleading any point of law, and any point so raised shall be
disposed of by the judge who tries the cause at or after the trial ;
provided that by consent of the parties or by order of the court
or a judge on the application of either party, the same may be
set down for hearing and disposed of at any time before the
trial; and if in the opinion of the court or judge, the decision of
such point of law substantially disposes of the whole action or
of any distinct cause of action, ground of defense, set-off,
§38, dilatory pleas are abolished and in lieu thereof objection shall be made
^ K , Per ^- J £ st , ice Mitche11 in Bf adly v. Potts, 155 Pa. 418, 427 (1803).
See also Phila. Rule 53, as amended Dec. 3, 1915. uoyj;.
• ,r°' 2 §' ? R- . *• ?' and S- The En^'sh rule was long ago adopted prac-
tically verbatim by the Common Pleas of Northampton County. See "Com-
pilation of the Rules of the Courts of Common Pleas," by Alexander Simo-
son, Jr., Penna. Bar Ass'n Reports, 1896, p. 608, § 1503.
240 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
counter-claim, or reply therein, the court or judge may thereupon
dismiss the action or make such other order therein as may be
just. These three sections of the English rules have been used
in framing sections 4 and 20 of the Practice Act of 1915.
The demurrer, having been the appropriate method of
raising the question whether the plaintiff has a cause of action,
fell into disfavor by reason of the fact that the defendant was
at the mercy of the court and might have judgment entered
against him on the demurrer, wihout being given leave to file an
affidavit of defense on the merits. The court in such cases had
the right to hold the defendant to the strict legal consequences of
his action in demurring to the statement of claim. 61 Attempts
to evade the danger of demurring and at the same time to enjoy
the benefit of such practice were unavailing. A suggestion of the
insufficiency of the plaintiff's statement of claim, 62 a motion to
strike off a statement, 63 a rule to suppress a statement 64 were
tried. In one case 65 the practice that was suggested was to file
an affidavit in the nature of a special demurrer, upon which affi-
davit a rule should be granted to show cause why the statement
should not be quashed. The practice of filing a demurrer and an
affidavit of defense, or a demurrer in the affidavit of defense was
of doubtful validity. 66
"Bridgeman v. Swing, 205 Pa. 479 (1903).
62 Bordentown Banking Co. v. Restein, 214 Pa. 30-32 (1906).
"Possibly suggested by Kauffman v. Jacobs, 4 Penna. C. C. R. 462
"Boyle v. Breakwater Co., 239 Pa. 577 (1913).
" Robinson v. Montgomery, 3 D. R. 661 (1893).
"In Duffy v. Mell, 13 D. R. 143 (1904) the incorporation of a demurrer
in the affidavit of defense was approved on the authority of Robinson v.
Montgomery, supra, note 65, and Heller v. the Insurance Co., 151 Pa. 101
(1892). The latter case is doubtful authority for this proposition. On the
other hand in Hanover Fire Insurance Co. v. Eason, 17 D. R. 915 (1908), a
paper was filed consisting of two parts, the first being a demurrer to the suf-
ficiency of the plaintiff's statement of claim, and the second an affidavit of
defense on the merits. The court decided that the plaintiff's statement was in
proper form and set forth a good cause of action and for that reason would
have dismissed the demurrer if it had been properly before it. "Even if this
were not the case, however, we should be obliged to dismiss it for the reason
that the defendant cannot file a demurrer and affidavit of defense at the same
time and have the demurrer disposed of before he can be required to file a
plea. He must elect upon what he will rely as a defense and the filing of
the affidavit of defense on the merits is the abandonment of the demurrer,"
THE PENNSYLVANIA PRACTICE ACT OF 1915 241
The Practice Act for the purpose of avoiding the difficulties
above suggested, abolishes demurrers and permits the same mat-
ter to be set up in the affidavit of defense. 67 And thus the affi-
davit of defense, a mere parvenu in the society of venerable pleas
and demurrers of most ancient lineage, has usurped their func-
tions, inherited their estate and thrust them into the limbo of
discarded and forgotten things.
Proceedings in Lieu of Demurrer.
Section 20. "The defendant in the affidavit of defense may-
raise any question of law, without answering the averments of
fact in the statement of claim; and any question of law, so raised,
may be set down for hearing, and disposed of by the court.
If in the opinion of the court the decision of such question of
law disposes of the whole or any part of the claim, the court may
enter judgment for the defendant, or make such other order as
may be just. If the court shall decide the question of law, so
raised, against the defendant, he may file a supplemental affidavit
of defense to the averments of fact of the statement within
fifteen days." 68
citing Railroad Co. v, Hayes, 13 D. R. 671 (1904); Schoenaman v. Scham-
bach, 18 York L. R. 124 (1904), and Marshall v. Katz, 18 York, L. R. 26
"The Pennsylvania Bar Association Committee in discussing this point
(Report 1912, p. 76), says: "If there is but one form of defense, that is an
affidavit by which any defense, whether of law or of fact, may be raised, it
tends to make the procedure more simple."
"In the bill introduced by Mr. William H. Wilson February r, 1915—
House Bill 132, Sec. 11, abolishing demurrers, it is provided that every
defense heretofore presentable by demurrer shall hereafter be made by mo-
tion either for the dismissal of such cause or for a more specific petition
the word "petition" being used in this act instead of statement of claim.
Under the New Jersey Rules of Court, No. 26, under the Practice Act of
1912, it is provided: "Demurrers are abolished. Any pleading may be struck
out on motion on the ground that it discloses no cause of action, defense
or counter-claim respectively. The order made on such motion is appealable
after final judgment. In lieu of a motion to strike out, the same objection,
and any point of law other than a question of pleading or practice, may be
raised in the answering pleadings, and may be disposed of at, or after, the
trial, but the court, on motion of either party, may determine the question
so raised before trial, and if the decision be decisive of the whole case the
court may give judgment for the successful party or make such order as
may be just." See also the similar federal practice in equity, Rule 29. This
seems a more rational disposition of the question than the one provided by
Section 4 and Section 20 of the Pennsylvania Practice Act,
2+2 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
The practice provided under this section is analogous to the
practice under the compulsory nonsuit act, 69 under which the
defendant's motion for a nonsuit is in effect a demurrer to the
evidence, but if decided against him, nevertheless enables him to
go on with his defense. So here the affidavit of defense in the
nature of a demurrer enables the defendant to have the suf-
ficiency of the plaintiff's cause of action disposed of without de-
priving him, as a demurrer might have done if the decision had
gone against him, of the right to file an affidavit of defense on
the merits. If the defendant in his affidavit of defense raises a
question of law in the nature of a demurrer it may be set down
for hearing and disposed of by the court in limine.
Who shall set it down ? 70 It was obviously not the intention
that this so-called affidavit of defense on a question of law should
be treated like an affidavit of defense on the merits. In the case
of a defense on the merits the plaintiff 71 may enter a rule for
judgment for want of a sufficient affidavit of defense, but where
the defense is merely an attack on the statement, the court can-
not, if it decides against the defendant, enter judgment for the
plaintiff; 72 hence the rule for judgment for want of a sufficient
affidavit of defense would be in the latter case a useless proceed-
ing. Section 20 of the act does not state what sort of an order
the court shall enter if it decides the question of law raised by
the defendant against him. Probably a rule of court will be
required to fix the practice herein and some new interlocutory
"Philadelphia District Court Act March 11, 1836, §7, P. L. 78, extended
to all the courts of Common Pleas by Act April 22, 1863, §1, P. L. 554, and
substantially re-enacted March 11, 1875, P. L. 6.
'"It will probably not be automatically set down by the clerk because
this would require the clerk to read all affidavits of defense. Perhaps the
defendant may be required to give notice to the clerk that his defense is a
matter of law only and thus have it set down, or perhaps it will be made
the plaintiff's duty to order the matter down for hearing. A rule of court
is here required.
"Under the old practice as well as under Section 17 of the Practice
72 Perhaps the practice may be attempted of allowing the court to enter
a judgment nisi, that is, a judgment to become absolute if the defendant
fails to file an affidavit of defense on the merits within fifteen days, and such
judgment not to be recorded in the judgment index until the fifteen days
have expired. Such practice would, in view of the provisions of Section ao,
be of doubtful propriety.
THE PENNSYLVANIA PRACTICE ACT OF 1915 243
decree invented to meet the exigencies of the new practice. It
might be "affidavit of defense stricken off" or "affidavit of
defense insufficient" — in each case "with leave to file supple-
mental affidavit of defense within fifteen days" under a stand-
ing rule of court without further notice to the defendant than
a notice from the clerk that such order has been entered.
Under the old practice requiring a demurrer to the state-
ment of claim, the court always exercised its discretion fairly
and allowed a defendant to file an affidavit of defense if counsel
in good standing assumed the responsibility of stating that he
believed that a good defense on the merits existed, while a sharp
practitioner representing the defendant ran the danger of having
judgment against his client if the court believed that he had
merely filed the demurrer for delay and that there was no real
defense. At any rate the matter was discretionary with the court
and the discretion was usually fairly exercised. Under the new
practice it will be possible to enter a defense of law in every case
without any possibility of being penalized, no matter how flimsy
the point of law raised may be, and the defendant may gain the
time between the filing of his affidavit of defense in the nature
of a demurrer and the date when it is overruled, for he must in
every case be given the additional fifteen days to make a defense
on the merits. Whether this can be avoided by a rule of court
From what time shall the fifteen days begin to run within
which the defendant must file his supplemental affidavit of defense
after the court has decided the question of law against him?
Probably from the time notice of the decision is given him by
the clerk or the plaintiff. Must the defendant ask for leave to
file the supplemental affidavit of defense, such leave to be given
as a matter of course in accordance with the requirement of
the act? It would seem that no request for leave is necessary
or ought to be required, but that upon the entry of a proper
order and due notice thereof to the defendant, the fifteen days
should commence to run against the defendant, and judgment for
want of an affidavit of defense should be permitted to be entered
in favor of the plaintiff, either upon his affidavit of service of
244 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
notice of the order of the court or under a rule of court which
makes the giving of such notice the official duty of the clerk and
therefore presumes it to have been given in every case.
How shall an affidavit of defense in the nature of a de-
murrer be drawn? Obviously the established form of affidavits
of defense which concludes with expectation of ability to prove
at the trial of the cause 73 is inappropriate. Shall the affidavit
of defense in such cases simply conclude as in the form of the
demurrer that objections to the statement of claim as set forth
are well founded in law and that the affidavit of defense is not
intended for the purpose of delay?
Under the old practice leave to file a supplemental affidavit
of defense was to a certain extent discretionary with the court. 74
Under the present practice it is the absolute right of the defend-
ant in case his first affidavit of defense raises only a question of
law. If, however, he files an affidavit of defense to the merits,
the old practice relating to his right to file a supplemental affidavit
of defense does not seem to have been changed. 75
Content and Form of Pleadings.
Section 5. "Every pleading shall contain, and contain only,
a statement in a concise and summary form 76 of the material
facts on which the party pleading relies for his claim, or defense,
as the case may be, but not the evidence by which they are to be
proved, or inferences or conclusions of law, and shall be divided
into paragraphs numbered consecutively, each of which shall con-
tain but one material allegation. Every pleading shall have
attached to it copies of all notes, contracts, book entries, or a
particular reference to the records of any court within the county
in which the action is brought, if any, upon which the party
"Newbold v. Pennock, 154 Pa. 591 (1893).
14 Bordentown Banking Co. v. Restein, supra, note 62.
"This practice is outlined in the following cases: West v. Simmons, 2
Whart. 261 (1837) ; Bloomer v. Reed, 22 Pa. 51 (1853) ; Callen v. Lukens,
7 W. N. C. 28 (1879) ; Bordentown Banking Co. v. Restein, supra, note 62:
Shunk v. Scheffler, 7 Berks County L. J. 17 (1914).
" This according to the Annual Practice 1914, p. 320, means "briefly, suc-
cinctly and in strict chronological order."
THE PENNSYLVANIA PRACTICE ACT OF 1915 245
pleading relies for his claim, 77 or defense, as the case may be;
and a particular reference to such record, or to the record of
any deed or mortgage, or other instrument of writing, recorded in
such county, shall be sufficient in lieu of a copy thereof."
The first part of this section is substantially taken from the
English rule. 78 Its alleged purpose is to introduce a more pre-
cise, though simple, method of pleading to take the place of the
loose and unsatisfactory pleadings which resulted from the abo-
lition of the old common law forms by the Act of 1887. 79 It
will probably not have this effect because the slovenly pleader
will continue to be saved by his ignorance from being intimidated
by Acts of Assembly.
The act of 1887 provided that the plaintiff's declaration
should consist of a concise statement of the plaintiff's demand as
provided by the fifth section of the Act of March 21, 1806. The
Act of 1806 referred only to statements in an action of debt
founded on a verbal promise, book account, note, bond, penal or
single bill. There is no form prescribed by this act and its pur-
pose was to enable parties to conduct their suits in the ordinary
simple claims for debt without the intervention of attorneys. 80
No provision for form of affidavit of defense was made. It
merely had to be "sufficient", but the decisions under the acts of
1835 an d 1887 and local rules of court established a regular
"The act of 1887 uses the words "upon which the plaintiff's claim is
founded." Why was this language changed as above? Is it supposed to
mean that any document upon which a party "relies," i. e., needs as evidence,
must be set forth in the pleading, or is the old rule still in force that only
such documents as constitute the basis of claim (or defense) shall be thus
78 O. 19, R. 4. This English rule became the basis of the Philadelphia
Court Rule 44, applying only however to the statement of claim. Philadel-
phia Rule 54 supplemented this by requiring: "The affidavit of defense shall
be drawn in accordance with the provisions of the rules relating to state-
ments so far as they are applicable." United Shoe Machinery Co. v. Winston,
24 D. R. 1047 (1913)- Rule 62, referring to defendant's claim of set-off
or counter-claim and plaintiff's reply thereto provided: "Both shall be drawn
in accordance with and shall be governed by the rules relating to statements
and affidavits of defense." These rules established the Philadelphia practice in
substantial accordance with the requirements of this section of the Prac-
™ See Report of Committee on Law Reform, Report of Penna. Bar
Ass'n 1912, p. 76, §7.
"Bailey v. Bailey, 14 S. & R. 195 (1826).
246 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
practice as to the proper form of both statement and affidavit of
defense. Nevertheless, since the old forms of the common law
had been abolished and pleaders had to think, instead of merely
filling in printed blanks, proper pleading under the act of 1887
required more than ever a thorough knowledge of the law of the
case. The courts were kept busy in criticising pleading and as
the tendency was against penalizing parties for the mistakes of
their attorneys, much time was wasted in hearings which resulted
in merely amending defective pleadings. Some of the cases
contain drastic expressions of disapproval of the Act of 1887, 81
but the fault lay rather with the pleaders than with the act which
did indeed invite but certainly did not approve the breaches of
the rules of pleading which were committed in its name. All of
the requirements of this section of the Practice Act of 191 5 ex-
cepting the one referring to numbered paragraphs were necessary
in a good statement under the Act of 1887 although that act
did not so state in express language.
The requirement of numbered paragraphs has been in force
in England for upwards of thirty years 82 and in Philadelphia
since March, 1913, and no serious criticism of the practice seems
to have been made.
The second part of section 5, requiring copies of documents
or reference to records on which the pleader relies for his claim
or defense, is a substantial reenactment of the second part of
section 3 of the Procedure Act of 1887 containing these require-
ments for the plaintiff's statement of claim. The question is
debatable whether good pleading requires a document to be copied
in full or merely to have its effect stated unless, as in an action
of libel, the precise words are material. 83 The Pennsylvania prac-
tice of requiring copies of documents has on the whole justified
The late Chief Justice Mitchell was especially severe in his expressions.
See Hubbard v. Tenbrook, 124 Pa. 291 (1889); Fritz v. Hathaway. 13s Pa.
274 (1890); Bradly v. Potts, 155 Pa. 418 (1893).
82 See Annual Practice 1914. For forms, see Appendices C, D, & E.
"As under the English Practice, O. 19, R. 21.
84 As to the necessity for copies of documents, see Acme Manufacturing
Co. v. Reed, 181 Pa. 382 (1897). As to reference to records in the county,
THE PENNSYLVANIA PRACTICE ACT OF 1915 347
Section 6. "Every allegation of fact in the plaintiff's state-
ment of claim, or in the defendant's set-off or counter-claim, if
not denied specifically or by necessary implication in the affidavit
of defense, or plaintiff's reply, as the case may be, or if no affi-
davit of defense or plaintiff's reply be filed, shall be taken to be
admitted, except as against an infant, a person of unsound mind,
or one sued in a representative capacity as provided in section
seven, and except as provided in section thirteen."
This section is based on the English 85 and Philadelphia 86
rules. A similar rule of Allegheny County was thus approved by
the Supreme Court : 'As a means of promoting justice and ex-
pediting the trial of causes, the rule under consideration has
proved to be most valuable." 8T A recent case in Philadelphia
interprets the Philadelphia rule. 88
There is no difference in effect between denying and not
admitting an allegation. The distinction usually observed is that
a party denies any matter which, if it had occurred, would have
been within his own knowledge, while he refuses to admit matters
which are alleged to have happened behind his back. But where
he denies or does not admit he must make it perfectly clear how
much he disputes and how much he admits. 89
see Sfegel v. Wood, 3 D. R. 463 (1894). As to records outside the county,
see Finch v. White, 190 Pa. 86 (1899). In Hendley v. Rittinger, 249 Pa.
193 (1915). it was held that the failure to attach copy of the contract to a
statement of claim was not a reversible error. The claim was on a book
account which was fully set forth and the receipt of the merchandise was
admitted in the affidavit of defense. The copy of the original contract be-
tween the parties was therefore not material, either in establishing the claim
or sustaining the defense and to reverse the case because the copy was not
attached to the statement would have been a decision based upon a mere
technicality which effected neither party to the cause.
"*0. 19, R. 13.
"Rule 59. See Cumberland Nat. Bank v. Holden, 22 D. R. 963 (1913).
"Allegheny County, Rule 9, §1, "Such items of the claim and material
averments of fact as are not directly and specifically traversed and denied by
the answer shall be taken as admitted." See Higgins Carpet Co. v. Latimer
165 Pa. 617 (1895).
88 Penna. Forge Co. v. Delaware River Transportation Co., 24 D R 1017
(1915). The reference in the case is to Rule 62, but Rule 59 is by neces-
sary inference likewise interpreted.
"Annual Practice, 1914, p. 337.
248 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
Section 8. "It shall not be sufficient for a defendant in his
affidavit of defense to deny generally the allegations of the state-
ment of claim, or for a plaintiff in his reply to deny generally
the allegations of a set-off or counter-caim ; but each party shall
answer specifically each allegation of fact of which he does not
admit the truth, except as provided in sections seven and thir-
This section provides for a specific denial in all cases except
those provided for in sections 7 and 13, but section 6 has already
substantially provided for this and has fixed the penalty for non-
compliance. The fact that this rule also appears in the English
rules 90 no doubt led to its adoption. If superfluous, it is cer-
tainly harmless in restating the duty of the defendant, 91 and at
any rate it removes any possible doubt as to the meaning of spe-
cific denial as used in section 6.
The Pennsylvania decisions are silent as to the extent to
which the specific denial must go. The English decisions may
therefore be of value. 92
Defense by Executors, Etc.
Section 7. "When the affidavit of defense, or plaintiff's
reply, is made by an executor, administrator, guardian, com-
mittee, or other person acting in a representative capacity, he
need only state the facts he admits to be true, and that he be-
lieves there is a just and legal defense to the remainder, and the
facts upon which he bases his belief." 93
Under the Philadelphia rule which is here substantially re-
enacted it was not necessary that the facts upon which the affiant
based his belief should be stated. But it was decided that under
m O. 19, R. vj.
81 Philadelphia Rule 55 in part covers the same subject matter. Under
this rule if the defendant admitted any paragraph of the statement he was
obliged to say "admitted." This would now seem to be unnecessary.
"See Adkins v. North Metropolitan Tramway Co., 63 L. J. Q. B. 361
(1893) ; Rassam v. Budge, I Q. B. 571 (1893). See also Annual Practice
for 1914, pp. 344 and 345.
M If the plaintiff sues on a decedent's promissory note and the executor
defendant does not deny its execution, proof of execution is not required at
the trial. Lowenstein v. Michael, 55 Super. Ct. 628 (1914).
THE PENNSYLVANIA PRACTICE ACT OF 1915 249
this rule the facts which justified the executors' belief that they
had a just and legal defense to the claim should be briefly set
forth for the information of the court or the plaintiff. 94 This is
now specifically required by the Practice Act. 95 Where the trans-
action is between the plaintiff and the executor personally, the
latter cannot avail himself of this rule, which was intended to
apply to transactions between the deceased and the plaintiff and
hence he must answer fully the allegations of the statement. 96
Statement of Claim.
Section 9. "The statement of claim shall be as brief as the
nature of the case will admit. In actions on contracts it shall
state whether the contract was oral or in writing. It shall be
sworn to by the plaintiff or some person having knowledge of
the facts, and, if there be an attorney, shall be signed by his
The provision that the statement of claim shall be as brief
as the nature of the case will admit is entirely unnecessary. Sec-
tion 5 of the act covers this fully. The sentence is copied from
the English rules 98 where it is important because under the Eng-
lish rules as to costs, the taxing officer in adjusting the costs of
the action could, at the instance of a party, or might without any
request, inquire into any unnecessary prolixity and order the
costs occasioned by such prolixity to be borne by the party charge-
able with the same. There is no provision in Pennsylvania prac-
tice for taxing the cost of preparing the pleading against the los-
"Phila. Rule 58, Hirsch v. Michael, 21 D. R. 70 (1912).
"The Allegheny Rule, Rule 13, Sec. 3 (1915), was as follows: "In all
actions brought against executors, administrators, guardians, committees, or
trustees, upon contracts alleged to have been made by the decedents, minors,
lunatics, or others whose interest they represent, the defendant shall file an
affidavit of defense, setting forth particularly the nature and character of the
defense, or that he has made diligent inquiry and investigation and has been
unable to obtain sufficient information to set the same forth particularly, but
that he believes there is a just and legal defense to the action, setting forth its
general nature so far as he has been able to ascertain."
"Hutzell v. Ruane, 23 D. R. 172 (1914).
"See Phila. Rule 41 and English Rule O. 19, R. 4.
"O. 19, R. 2.
250 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
The "concise statement" required by the fifth section of the
act is interpreted by the cases under the Act of 1887 which define
the meaning of "a concise statement" of the plaintiff's demand.
"The statement should contain all the ingredients of a complete
cause of action, averred in clear, express and unequivocal lan-
guage, so that if the defendant is unable to controvert or deny
one or more of the material averments of claim, a judgment in
default of an affidavit or sufficient affidavit of defense may be
entered and liquidated," " or as stated in another case, it must
include "every ingredient of a good cause of action averred
with the same completeness, accuracy and precision that were
required in a declaration at common law." 10 °
The provision that in actions on contracts the statement
shall state whether the contract was oral or in writing is in
accordance with the requirements of the Philadelphia Rule of
Court, 101 but likewise seems superfluous in view of the pro-
visions of section 5.
The provision that the statement shall be sworn to is in
accordance with the established practice. The Act of 1887, fol-
lowing the practice under the common law declaration, did not
require the statement to be sworn to, but it was held that this
could be required by rules of court. 102 This practice has been
pretty generally followed throughout the state.
Under section 3 of the Act of 1887 it is provided that the
statement shall be signed by the plaintiff or his attorney. Under
the present act the plaintiff is not required to sign the statement.
If the plaintiff swears to the statement he will of course have to
sign the jurat, 103 but as some one else having knowledge of the
facts may swear to it and the attorney must sign it, it would
appear that statements of claim may be filed without the signature
of the plaintiff.
88 Byrne v. Hayden, 124 Pa. 170-177 (1889).
l00 Newbold v. Pennock, 154 Pa. 591, 596 (1893).
M1 Rule 45.
*" Edison Electric Co. v. Thackara Manufacturing Co., 167 Pa. 530
(1895), and see Philadelphia Rule 41.
103 Such signature has been decided to be a sufficient signature to the
statement of claim. Dilley v. Rowe, 23 W. N. C. 491 (1889).
THE PENNSYLVANIA PRACTICE ACT OF 1915 251
Indorsement of Statement of Claim.
Section 10. "The statement of claim shall be endorsed a
" 'To the within defendant —
" 'You are required to file an affidavit of defense to this
statement of claim within fifteen days from the service hereof.'
"This notice shall be followed by the name of the plaintiff's
attorney or by his own name if he sues in person, and an address
within the county where all papers are to be served." 104
The indorsement of notice to the defendant to file affidavit
of defense follows the practice established by the Philadelphia
rule of court. 105 The general rule under the older practice was
that the statement of claim should be indorsed with a rule on the
defendant to file an affidavit of defense, though some counties
required the affidavit of defense to be filed merely upon service
of statement and notice that the same was filed. The problem
under the Act of 1887 created by reference to the return day of
the writ, 106 cannot now arise and the procedure is as simple as it
probably can be made. The notice requires the defendant to file
his affidavit of defense within fifteen days from the date of the
service of the statement of claim. Rules of court will no doubt
require affidavit of service of the statement to be made and filed
of record in case the sheriff does not make the service. After
fifteen days from date of service if the defendant has not filed
an affidavit of defense, the plaintiff may take judgment for want
of the affidavit of defense, under section 17 of the act, which is
merely declaratory of the existing practice.
Plaintiff Asking for an Account.
Section ii. "If the plaintiff avers that the defendant has
received moneys as agent, trustee, or in any other capacity for
which he is bound to account to the plaintiff, or if the plaintiff is
104 Requirement of indorsement of address for service follows the Eng-
lish Practice, O. 4, R. 1.
105 Rule 42.
""Weigley v. Teal, 125 Pa. 489 (1889).
252 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
unable to state the exact amount due him by the defendant, by
reason of the defendant's failure to account to him, the plaintiff
taw action of account render which, though unrepealed, has been
may ask for an account."
Prior to this act the law of Pennsylvania enabled the plain-
tiff to obtain an accounting from the defendant by the common
rendered obsolete by the remedy by bill in equity. 107 In 1887
Judge Michael Arnold, under the scheme of reform suggested by
him, proposed a modern proceeding at law in place of the action
of account render. 108 In the English rules the plaintiff may ask
for an account by merely indorsing his writ with a claim therefor,
and if the defendant does not appear, or by affidavit or other-
wise satisfy the judge that there is some preliminary question to
be tried, an order for an accounting will be made. If the demand
is made in King's Bench Division, which does not have the
necessary machinery for taking accounts, the case is transferred
to the Chancery Division. 109 The union of all the courts and
the merger of law and equity in the English system makes this a
simple and appropriate procedure.
The draftsman of the Practice Act probably had both Judge
Arnold's scheme and the English rules before him, but his
attempt to engraft this procedure on the Pennsylvania practice
seems doomed to failure for several reasons. The present act
does not according to its title purport to do more than relate to
practice in the present actions of assumpsit and trespass. It
cannot, therefore, in view of the constitutional provision that "no
bill except general appropriation bills shall be passed containing
more than one subject which shall be clearly expressed in its
title," 110 give a new right of action, i. e., a right to proceed in
assumpsit where heretofore only account render or bill in equity
1,7 Act Oct. 13, 1840, §19 P. L. (1841) 7. The advantage of the pro-
ceeding in equity over account render is set forth in the report of the revisers
of the statute law of the state made in 1835. 1 Troubat & Haly's Practice
(5th Ed.), p. 49-
""In an address before the Law Academy of Philadelphia January 4,
1887, in advocacy of his Procedure Act, which resulted in the act of 1887, 44
Leg. Int. 4.
"O. 3, R- 8; O. 15, R. 1.
m Constitution of Penna., Art. Ill, Sec. III.
THE PENNSYLVANIA PRACTICE ACT OP 1915 253
lay. The committee of the Pennsylvania Bar Association seemed
to realize this for they said :
"This section is intended to cover cases where assumpsit will
lie, but the plaintiff is unable to tell how much the defendant owes
him because the defendant has not furnished an account. There
seems to be no reason why the plaintiff should be obliged to file a
bill in equity in such cases, nor why the defendant should bring his
books into court to state the account there. The plaintiff accordingly
is given the right to demand an account. 111
This statement shows mental confusion. For if it is intended
to cover cases in which assumpsit lies, it cannot include any
cases in which the defendant must account, for in such cases
assumpsit does not lie. 112 The committee seems really to have
wanted to give the plaintiff in assumpsit the same rights that the
plaintiff in account render or in equity enjoys, i. e., to compel the
defendant to account. No doubt this can be done by appropriate
legislation. The present attempt must remain futile.
Section 19. "When the plaintiff asks for an account, and
moves for judgment for want of an affidavit of defense, or for
want of sufficient affidavit of defense, the court may enter an
order for an account, which may be enforced by attachment or
otherwise, and judgment may be entered for the amount shown
to be due in favor of the plaintiff or the defendant."
This section shows the purpose of the draftsman of the
act to give to the plaintiff in assumpsit the remedies in account
render and equity and strengthens the argument against the con-
stitutionality of the act. It provides that when the plaintiff asks
for an account and the defendant does not file an affidavit of
defense or files an insufficient affidavit of defense, the court may
enter a judgment, not for a specific amount as in an action of
assumpsit, but a judgment equivalent to the old judgment quod
computet in account render. The issue raised by the affidavit
of defense, therefore, must have been whether the defendant
should account, which issue was found against him as a matter
m Report 1912, p. 80, § 19.
m Brubaker v. Robinson, 3 P. & W. 295 (1831) ; Reeside v. Reeside,
49 Pa. 322 (1865) ; Burton v. Trainer, 27 Super. Ct. 626 (1905).
254 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
Then it is provided that this judgment or order, as it is
called, may be enforced by attachment or otherwise. In equity
the decree could be enforced by attachment for contempt, but
what is the meaning of "or otherwise" ? Does it mean that there
shall be execution, sequestration, or statement of an account by
auditors or a master? Did the committee intend to apply the
federal equity rule 113 for enforcement of final decrees? Can
such methods not heretofore applicable in Pennsylvania practice
in such cases be assumed to be included in a phrase like "or
If the defendant files a sufficient affidavit of defense all this
procedure is inapplicable and the case must go to the jury on the
issue whether defendant shall account. No provision for this
and subsequent procedure is made. If the jury finds that he
shall account, what verdict and judgment shall be entered and
how shall the account then be enforced? As to this, the act is
silent. It seems therefore that the attempt to give a new right
of action renders the entire act of doubtful constitutionality, or
makes sections n and 19 meaningless. At best, if the act shall
be sustained by the Supreme Court as constitutional and these
sections as enforceable, they will raise more problems of practice
than they purport to solve.
Affidavit of Defense.
Section 12. "The defendant shall file an affidavit of de-
fense to the statement of claim within fifteen days from the day
when the statement was served upon him. The affidavit of de-
fense shall be as brief as the nature of the case will admit. It
shall be sworn to by the defendant, or some person having
knowledge of the facts. It shall be served upon the plaintiff, or
his attorney, at the address for the service of papers indorsed
on the statement of claim, and shall be indorsed with the name
of the defendant's attorney, or of the defendant if he defends
in person, and an address within the county where all papers are
to be served."
THE PENNSYLVANIA PRACTICE ACT OF 1915 255
This action requires substantially the same formalities for
the affidavit of defense as are required for the statement of claim.
It does not state when, or how soon after filing, the affidavit of
defense shall be served on the plaintiff. This and similar rules
as to the time of serving the statement of claim and plaintiff's
reply can be supplied by rules of court. 114
Affidavit of Defense in Trespass.
Section 13. "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 posses-
sion of the vehicle, machinery, property or instrumentality in-
volved, and all similar averments, if not denied, shall be taken to
be admitted in accordance with section six ; 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." im
Section 18. "In actions of trespass, when the defendant
fails to file an affidavit of defense, within the required time, the
case shall be deemed to be at issue, and may be ordered upon the
These sections introduce a change in Pennsylvania prac-
tice, in providing for an affidavit of defense in actions of tres-
Under the Act of 1887 the defendant was required to file
an affidavit of defense only in actions ex contractu, and not in
actions ex delicto. 116 Under the present act the defendant in
114 Under Philadelphia Rule 54 the affidavit of defense having been filed,
a copy of the same had to be served on the plaintiff or his attorney within
forty-eight hours after it was filed. "Otherwise the plaintiff may take a
rule for judgment supported by an affidavit that a copy of the affidavit of
defense has not been served as required by this rule." This provision of
Philadelphia Rule 54 was incorporated in the original draft of the act pre-
pared by the Pennsylvania Bar Association, but was subsequently stricken out.
See Report of Pennsylvania Bar Association, 1912, p. 72, §20. It is related
on the Philadelphia Rule in the amended Rule adopted Dec. 3, 1915.
""See English Rules, O. 21, R. 4.
""In Stanton v. The Philadelphia & Reading Railroad Co., 236 Pa. 410
(1912), it was held that the defendant must file an affidavit of defense
256 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
actions of trespass if he intends to deny certain allegations in
the statement of claim, or to set up certain defenses as in con-
fession and avoidance, must file an affidavit of defense. If he
fails to do so, he is taken to have admitted certain averments in
the statement of claim, and the plaintiff may order the case down
for trial. At the trial the plaintiff need not prove who committed
the act complained of, that such person was the agent or em-
ployee of the defendant, that the car or engine or machine was
owned by the defendant or in his possession, that the premises
on which the act was committed were the defendant's prem-
ises. 117 The defendant may offer no testimony to contradict these
facts nor to prove any defense in confession and avoidance, i. e.,
in justification, excuse, discharge, or release, but he may offer
evidence as heretofore to meet the plaintiff's other evidence of
liability and damages. For although neither party is permitted
to offer evidence of a defense not pleaded in an affidavit of de-
fense, yet as the defendant in an action of trespass is not obliged
to file any affidavit of defense to other facts on which the plain-
tiff relies to establish liability, and averments relating to dam-
ages claimed or their amount, he is not precluded from offering
evidence to contradict the plaintiff in these matters.
The affidavit of defense in an action of trespass is not an
entirely new thought in Pennsylvania practice, for the rules of
several counties required the defendant at the request of the
plaintiff to file a bill of particulars in an action of trespass, set-
ting forth his grounds of defense. 118 Under the Act of 1887 the
where the breach of contract occurred through negligence tortious in its char-
acter, but where the defendant enjoyed no profit or advantage from the wrong
done. The basis of the plaintiff's claim was a breach of a contract and the
action was held to be rightfully brought in assumpsit. The distinction be-
tween this case and that of Corry v. Pennsylvania Railroad Co., 194 Pa. 516
(1900), in which case no affidavit was required was based upon the fact in
the latter case no contractual relation had as yet arisen between the plaintiff
and the defendant and that the action, if any, sounded in tort
"'This practice was in Allegheny County, provided for by rule of court
*** Such rules were in force in the following counties : Lycoming, Schuyl-
kill, Washington, Berks, Northampton, Allegheny, Cumberland, Venango,
Delaware, Mercer, Juniata, and Perry. In Allegheny County by Rule 140 if
the defendant failed to file a bill of particulars, he could have judgment entered
against him. If he did file such a bill, he was at the trial confined to the defense
therein set forth unless amendment was allowed by the court for cause shown.
THE PENNSYLVANIA PRACTICE ACT OF 1915 257
defendant in such actions was obliged merely to file a plea of
not guilty, but there was no prohibition express or implied of
the right of the court to make rules requiring the defendant to
particularize his defense and restricting him at the trial to such
particulars. 119 But the terms of section 13 of the Practice Act
of 191 5 which exempt the defendant from answering or denying
the "averments of the facts on which the plaintiff relies," etc.,
probably nullify the rules in so far as they require the defendant
to furnish a bill of particulars as to such matters.
Set-Off and Counter-claim.
Section 14. "In actions of assumpsit a defendant may set
off or set up by way of counter-claim against the claim of the
plaintiff, any right or claim for which an action of assumpsit
would lie, and a verdict may be rendered in his favor for the
amount found to be due, and judgment entered thereon. If in
any case in which the defendant sets up a counter-claim the
action of the plaintiff is discontinued, dismissed, or a voluntary
nonsuit suffered, the counter-claim nevertheless may be proceeded
The first part of the section makes practically no change in
the law. Since the Defalcation Act of 1705 120 the defendant
pleading payment and proving that the plaintiff was overpaid
might receive from the jury a certificate showing how much the
plaintiff was indebted or in arrears to the defendant and the
amount certified could be recorded with the verdict and become
a debt of record. Upon this verdict the defendant was entitled
Similar provisions may be found in the rules of other counties. It was held
in Stell v. Moyer, 9 D. R. 516 (1900) that the right to require the defendant
to file a bill of particulars in an action of trespass was not affected by the
act of 1887, and that under section 7 of that act providing that the pleadings
were to be subject to the rules of the respective courts as to notice of special
matter, the old rule of court was still enforceable.
"*In Johnson v. R. R., 163 Pa. 127 (1894), it was held that a defense
of release was admissible under the plea of the general issue and as it did not
have to be specially pleaded at common law was not required to be set forth
in "notice of special matter" under a rule of court. But this decision did not
affect the right of the courts to make a rule such as that now in force in
the counties mentioned in note 118.
""Act of January 12, 1705 (1 Sm. Laws 49), § 1.
258 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
to judgment and execution in the same manner as if the verdict
had been in favor of the plaintiff. 121 The courts have construed
this act most liberally, and have held, in the words of Mr. Justice
"Unliquidated damages, arising ex contractu from any bargain
may be given in evidence under our Act. When the damages arise
from a tort, they certainly cannot be allowed 123 and perhaps there
may be cases of contract where damages are not capable of liquidation
by any known legal standard, which are not within the spirit of the
Act; as for example breach of the contract of marriage. . . . The
Defalcation Act allowed the defendant to set off a demand . . .
arising out of a bargain or contract, when, although the sum claimed,
legally speaking, consists of damages, and cannot be reduced to
certainty by the terms of the bargain itself, yet the law has fixed
and given a standard by which it can be ascertained by a jury of the
An examination of the cases shows that the existing law was
practically as broad as the statement in the present act. 124 Pos-
sibly some exceptional cases may now be provided for which
could not have been set off heretofore, as where the set-off arises
from a cause of action of the defendant against the plaintiff
which has arisen since the action brought by the plaintiff against
the defendant, or from a cause of action of a third person against
the plaintiff, but acquired by the defendant since the suit was
brought against him by the plaintiff. 125 In the Pennsylvania
cases no distinction seems to be made between the terms set-off
and counter-claim 126 probably because the Pennsylvania Defal-
m Act of April ii, 1848, P. L. 537, §12.
122 Hunt v. Gilmore, 59 Pa. 450 (1868).
123 Under the English Rules, O. 19, R. 3, a defendant in an action may
set off or set up by way of counter-claim any right or claim whether it sounds
in damages or not. It need not be an action of the same nature as the original
action. A claim founded on tort may be opposed to one founded on con-
tract or vice versa. O. 21, RR. 11, 12; Annual Practice (1914), p. 317. A
similar rule prevails in Ontario, "Rules of Practice and Procedure in the Su-
preme Court of Ontario" (1913), p. 25, Rule 115.
m See Pepper & Lewis Digest of Decisions, Title "Set-off and Defal-
m Morrison v. Moreland, 15 S. & R. 61 (1826) ; Pennell v. Grubb, 13 Pa.
"""Set-off is in substance a cross-action," Pennell v. Grubb, supra, note
125. In the Philadelphia Rules 56, 57, 62, and 65 and in this act, §§ 14, 15',
there seems to be no distinction in the use of these terms.
THE PENNSYLVANIA PRACTICE ACT OF 1915 259
cation Act of 1705, under which set-off could be first pleaded, is
broader than the later English Statute of 2 Geo. II. c. 22. The
distinction in England is thus stated:
"The right to plead a set-off was at first conferred on a de-
fendant by the Statute 2 George II. c. 22. Until then a defendant
who had any cross-claim against the plaintiff could not raise it in
the plaintiff's action; he had to bring a cross-action. But the Judi-
cature Act gave to a defendant a very wide power of counter-
claiming. Neither the Judicature Act, however, nor other order or
rule made in pursuance thereof, expressly stated what is the distinc-
tion between the new counter-claim and the former set-off. It is
this: A set-off remained precisely what a set-off used to be under
the statute of 2 George II. c. 22 and 8 George II. c. 24 as when al-
lowed in cases which fall within these suits. Every other kind of
cross-claim is a counter-claim. ... A set-off is a defense proper
to the plaintiff's action; a counter-claim is in the nature of a cross-
action. . . . Every set-off can be pleaded as a counterclaim
. . . but a counter-claim cannot be pleaded as a set-off." 127
If this distinction has any validity in Pennsylvania it might
be thus applied: that set-off prior to the act of 191 5 meant as well
set-off as counter-claim, but that claims which can now be set off,
but could not have been prior to the act of 191 5 are strictly speak-
ing counter-claims and not set-off.
The second part of section 14 is based on the English
rules. 128 Under the established practice in Pennsylvania, although
a plaintiff could not discontinue without leave of court, he had
the absolute right to suffer a voluntary nonsuit even though the
defendant had pleaded set-off. 129 This right has now been made
valueless, since the defendant may have what is virtually his
cross-action tried without being at the mercy of the plaintiff
for his opportunity. In the English and Philadelphia rules the
same right is given to the defendant when the plaintiff's action
is "stayed", a word not used in the Practice Act and instead of
which the word "dismissed" is used. The dismissal of action
127 Annual Practice (1914), pp. 366, 367.
w O. 21, R. 16, followed in Philadelphia Rule 57. Apparently there are
no decisions under this rule of practice in Pennsylvania. Some decisions
under the English rule may therefore be of interest. See Annual Practice
(1914). PP- 363, 364-
""McCredy v. Fey, 7 Watts 496 (1838).
2<5o UNIVERSITY OF PENNSYLVANIA LAW REVIEW
is the final determination of the action though not neces-
sarily of the right of the plaintiff to begin again in another
proceeding. 130 It seems to be a phrase large enough to include
discontinuance, voluntary nonsuit, and stay, and in addition
thereto the entry of judgment of non-pros, compulsory nonsuit,
or judgment on an affidavit of defense in the nature of a de-
The question arises, did the act intend to restrict the right
of the defendant to have his counter-claim tried, to cases where
the plaintiff upon his own motion had the case dismissed, dis-
continued, or nonsuited, or did it mean to allow him to enjoy this
right in cases where he, the defendant, through his motion, was
the cause of the dismissal, etc., of the plaintiff's action. The
word dismissal is broad enough to include such cases, though the
specific mention of voluntary nonsuit in the act might give weight
to the argument that compulsory nonsuit was not to be included.
The modern tendency to dispose of all controversies between the
parties in one action, though not yet perfectly realized in Penn-
sylvania is obviously reflected in the Philadelphia rule and in this
action of the Practice Act. 131
There is no provision under this section for the manner in
which the set-off or counter-claim is to be pleaded. The Phila-
delphia practice provided that when a defendant relies upon a
set-off or counter-claim he should first answer the averments of
the statement and then set out his set-off or counter-claim under
the heading "set-off" or "counter-claim", which should be stated
in accordance with the rules for drawing statements. 132 It is
""Weigley v. Coffman, 144 Pa. 489 (1891); Leese v. Sherwood, 21 Cal.
m The committee of the Bar Association in its report in 1912, pp. 72
and 73, recommended in this connection that the English and Ontario prac-
tice should be followed and that any right or claim, whether sounding in
damages or not, should be permitted to be set off or set up by way of counter-
claim, with the right in the court in its discretion to require the matter thus
set up to be disposed of in a separate trial. This recommendation, however,
was not adopted. The committee also recommended in its Report of 1912,
p. 73, that the statement of the set-off or counter-claim should be under a
separate head with separate numbered paragraphs, stating the relief to which
the defendant claims to be entitled. This is in accordance with Philadelphia
Court Rule 56, but was likewise omitted from the act.
m Philadelphia Rule 56. This is in accordance with Ontario Rule 113,
THE PENNSYLVANIA PRACTICE ACT OF 1915 261
quite probable that this method of pleading will be enforced by
rules of court following the Philadelphia practice which recom-
mends itself as reasonable and proper, for it prohibits the de-
fendant from mingling allegations of defense and counter-claim,
and requires him in an orderly manner first to answer the plain-
tiff's demand and then set up, by what is substantially a new
pleading incorporated in his affidavit of defense, the new matter
which constitutes his claim of set-off or counter-claim. 133
The question of the right of the court to order separate
trials of claim and counter-claim seems never to have been raised
in Pennsylvania. In view of the character of the rights that may
be set-off or counter-claimed, the question is not likely to arise.
Section 15. "When the defendant in his affidavit of defense
sets up a set-off or counter-claim against the plaintiff, the plain-
tiff, with fifteen days from the day of service of the affidavit of
defense upon him, shall file an answer, under oath, which shall
be called 'Plaintiff's Reply,' which shall be served upon the de-
fendant, or his attorney, at the address for the service of papers
indorsed on the affidavit of defense. In such cases the affidavit
of defense shall be indorsed as follows:
" To the within plaintiff —
" 'You are required to file a reply to the within set-off (or
counter-claim, as the case may be) within fifteen days from the
"The set-off or counter-claim shall be regarded as the de-
fendant's statement of claim, and the plaintiff's reply as an affi-
davit of defense thereto." 134
This section substitutes a new pleading for the common
which followed the established practice under the English rule, O. 21, R. 10.
See Annual Practice for 1914, p. 360.
"'See Report of Committee of Pennsylvania Bar Association, 1912, p. 83,
m In the proposed act presented to the legislature on January 19, 1887
(Senate Bill I, § 15) the practice set forth in §§ 14 and 15 of the Practice
Act of 1915, relating to set-off and counter-claim and the plaintiff's reply
thereto, was fully anticipated.
36a UNIVERSITY OF PENNSYLVANIA LAW REVIEW
law replication. Under the Procedure Act of 1887 tne plaintiff's
reply was not provided for. In Philadelphia the English practice
was adopted and a rule was provided which is in substantial
agreement with this section of the act. 135 In other counties, how-
ever, the replication was still used and pleadings subsequent to
the replication in accordance with common law forms were not
improper and were occasionally resorted to. 136 The Act of 191 5
provides for no pleadings subsequent to the reply. Rejoinders,
sur-re joinders, rebutters, and sur-rebutters may be deemed
luxuries not essential to the perfect legal life. 137
The plaintiff's reply need not be filed unless the defendant
indorses his affidavit of defense as set forth in the act. Then the
plaintiff may be penalized, under section 17, by judgment in favor
of the defendant for want of a reply or for want of a sufficient
reply, in the same manner as the plaintiff might take judgment
against the defendant for want of an affidavit of defense or for
want of a sufficient affidavit of defense. As the practice under
the rules for judgment is well established, it will no doubt easily
be applied to secure judgment for want of a reply or sufficient
Proofs Under the Pleading.
Section 16. "Neither party shall be permitted at the trial
to make any defense which is not set forth in the affidavit of
defense, or plaintiff's reply, as the case may be, except as pro-
vided in sections seven and thirteen."
This is but an application of the well-known principles
applied at common law, prohibiting the party from proving any
matter not admissible either under the plea of the general issue
or the special pleas filed by him. Under the English rules if the
"•A notable though very unusual illustration may be found in the case
of Allen v. Colliery Engineers Co., 196 Pa. 512 (1900), in which counsel
indulged in an orgy of common law pleading. The pleadings are set forth
in full in the report of the case and the defendant's plea was followed by
replication, rejoinder, sur-re joinder, rebutter, and sur-rebutter, and judgment
entered for the defendant on a demurrer to the sur-rebutter, but reversed in
the Supreme Court.
1,7 See English Rules, O. 23, R. 2; Ontario Rule 119.
THE PENNSYLVANIA PRACTICE ACT OF 1915 263
defendant proposes at the trial to rely on any defense or counter-
claim not disclosed in his affidavit, he must, within four days
after the master has given him leave to defend, deliver to the
plaintiff's solicitor the particulars of such defense or counter-
claim in writing and be precluded from relying on any defense
or counter-claim not raised in his affidavit or in such particulars,
except by leave of the judge who tries the action. If any defense
arises after the statement of defense or the plaintiff's reply has
been delivered, upon leave of court obtained, such other defense
or reply may be set forth. 138
Under the Philadelphia practice neither party shall be per-
mitted at the trial to make any defense except that set forth in
the affidavit of defense or plaintiff's reply as the case may be. 139
New matter may be added only by amendment by leave of court
and a copy of the amendment shall be served on the adverse
party or his attorney at least ten days before the day set for
trial. This rule is practically incorporated in section 16 of the
act and in section 21 providing for amendments or new pleadings
to be filed on such terms as the court may direct.
Motion for Judgment.
Section 17. "In actions of assumpsit the prothonotary may
enter judgment for want of an affidavit of defense, or for any
amount admitted or not denied to be due. The plaintiff may
take a rule for judgment for want of a sufficient affidavit of
defense to the whole or any part of his claim, and the court shall
enter judgment or discharge the rule, as justice may require.
When the defendant sets up a set-off or counter-claim, he may
move for judgment against the plaintiff for want of a reply, or
for want of a sufficient reply to the whole or any part of the
set-off or counter-claim; and the court may enter judgment in
favor of the plaintiff, or the defendant, for such amount as shall
be found due, with leave to proceed for the balance."
This section is a substantial reenactment of Acts of Asseni-
V8 O. 14, R. 8, and see Appendix "K" to the Rules of the Supreme Court,
No. 7 A ; O. 24, R. 2.
"• Philadelphia Rule 60. See also Allegheny County Rule 9, §4.
364 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
bly 140 providing for judgment against the defendant for want
of an affidavit of defense, or for the amount admitted to be due,
or for want of a sufficient affidavit of defense to the whole or
any part of the plaintiff's claim. 141 A partially new practice
is established giving a similar remedy to the defendant where
the plaintiff fails to file a reply or files an insufficient reply to
the whole or any part of the defendant's set-off or counter-
claim. This practice existed in Philadelphia under a rule of
court which has been practically incorporated in this section of
the act. 142
This practice of granting a summary judgment in actions
ex contractu where no defense or no sufficient defense is set up
by the pleading has justified itself and is firmly established in
Pennsylvania procedure. Our courts do not provide statistics
showing the number of judgments entered for want of an affi-
davit of defense or for want of sufficient affidavit of defense
and no comparison, therefore, can be made with the number of
such judgments and those entered on nonsuit or verdict. But
an examination of the motion lists of the courts will furnish
proof, even though the same may not be statistically confirmable,
that a very large amount of litigation is thus disposed of prior
Section 21. "The court upon motion may strike from the
record a pleading which does not conform to the provisions of
this act, and may allow an amendment or a new pleading to be
filed upon such terms as it may direct."
Section 22. "The court, in; its discretion, upon motion and
notice to the opposite party or his attorney, may extend the time
fixed by this act for the filing or service of any pleading."
M Act May 25, 1887, P. L. 271, § 5 ; Act April 22, 1889, P. L. 41, § 1 ;
Act May 31, 1893, P. L. 185, § 1 ; Act July 15, 1897, P. L. 276, § 1.
141 The judgment for want of an affidavit of defense may be entered as
of course by the prothonotary, with the same effect as if moved for in open
court, providing a rule of court or standing order authorizes him to do so.
Act of April 22, 1889, P. L. 41, § 1. The judgments for want of a sufficient
affidavit of defense however require a rule to show cause and must be entered
by the court.
1U Philadelphia Rule 65.
THE PENNSYLVANIA PRACTICE ACT OF 1915 365
Section 23. "The courts of common pleas shall make such
rules as they deem advisable for the proper enforcement of this
Section 24. "This act may be cited as 'Practice Act, nine-
teen fifteen.' "
Section 25. "All acts or parts of acts inconsistent with the
provisions hereof are repealed."
Section 21 gives the court complete control of the pleadings
and plenary power to strike out a pleading which does not con-
form to the provisions of the act or to allow an amendment or
a new pleading on such terms as the court may direct. In Phila-
delphia a similar rule was in force and this, together with the
Amendment Act of 1806 143 gave the Philadelphia courts sub-
stantially the same power which is now conferred by this sec-
tion of the act. The words of Lord Justice Bowen may be here
cited as furnishing a reasonable interpretation of this rule: 144
"The rule that the court is not to dictate to parties how they
should frame their case, is one that ought always to be preserved
sacred. But that rule is, of course, subject to this modification and
limitation, that the parties must not offend against the rules of plead-
ing which have been laid down by the law; and if a party intro-
duces a pleading which is unnecessary, and it tends to prejudice,
embarrass and delay the trial of the action, it then becomes a plead-
ing which is beyond his right."
It would seem proper, therefore, that, if an application is
made to strike out a pleading because not in conformity to the
provisions of the Act of Assembly, the applicant should be com-
pelled to show that he is in some way prejudiced by the irregu-
larity complained of. The English rules provide: 145 "No tech-
nical objection shall be raised to any pleading on the ground of
any alleged want of form. . . . Non-compliance with any of
these rules, or with any rule of practice for the time being in
force, shall not render any proceedings void unless the court or
a judge shall so direct, but such proceedings may be set aside
either wholly or in part as irrregular, or amended, or otherwise
*" Philadelphia Rule 64; act March 21, 1806, 4 Smith's Laws 329, Sec-
144 Knowles v. Roberts, 38 C. D. 270 (Eng. li
"•O. 19, R. 26; O. 70, R. 1; and see Annual Practice (1914), p. 348.
a66 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
dealt with in such manner and upon such terms as the court or
judge shall think fit."
Section 22 enables the court to modify the statutory re-
quirement that the affidavit of defense and the plaintiff's reply
shall be filed within fifteen days from the date of service of the
statement of claim and affidavit of defense respectively. 146 Under
the former practice an enlargement of the defendant's time by
the court or a judge would be an attempt to curtail the plaintiff's
statutory right to judgment for want of an affidavit of defense
and was beyond its power. 147 Under the present practice the
court may in all cases, in the exercise of its judicial discretion,
grant additional time for the filing and service of the statement
of claim, affidavit of defense, or plaintiff's reply. It is suggested
in the act that this power should be exercised upon motion and
notice to the opposite party or his attorney. For the purpose of
preventing abuse, a rule of court, requiring a petition under oath
setting forth reasons, upon which a rule to show cause with stay
of proceedings may be granted, would be a proper practice.
Under the English practice the court has power to enlarge the
time, although the application is not made until after the time
fixed for the filing has expired. 148 No such grant of power is
given in the Practice Act and it will probably be held that the
application for the extension of time must be made before the
expiration of the fifteen days fixed by the act.
Section 23 seems unnecessary. Every court of record pos-
sesses general powers to make rules for the regulation of its
business. It is a power inherent in the nature of the constitution
of the court. Statutes have nevertheless from time to time been
passed in which such powers are conferred. The most recent
in Pennsylvania provided that "the several courts of common
pleas of this commonwealth shall have full power to make all
necessary rules and regulations for the transaction of all busi-
ness brought before them." 149 This section therefore seems
'"There is no time fixed by the act for the service of papers.
MT Bordentown Banking Co. v. Restein, 214 Pa. 30 (1906), supra, note 62.
148 O. 64, R. 7.
'"Act May 24, 1878, P. L. 135, §2.
THE PENNSYLVANIA PRACTICE ACT OF 1915 &1
Summary and Conclusion.
In summing up this review of the Practice Act of 191 5 we
find among the new features, sections 3 and 4, the abolition of
pleas and demurrers; section 13, the affidavit of defense in ac-
tions of trespass; sections 15 and 17, the plaintiff's reply and the
right to enter judgment for want of such reply or for want of a
sufficient reply; section 14b the right of defendant who has set
up a counter-claim to proceed with his cause notwithstanding the
discontinuance or dismissal of the plaintiff's action or his vol-
untary nonsuit; and section 22, the right of the court in its
discretion to extend the time fixed by the act for the filing or
service of any pleading. These new features will probably com-
mend themselves to the bar after their effect has been tested by
There are several other new features, however, which will
probably be found undesirable. These are, section 1, the excep-
tion of the actions of libel and slander from the procedure relat-
ing to other actions of trespass ; sections 3, 4, and 20, the sub-
stitution of the affidavit of defense for plea to the jurisdiction
and for demurrer to statement; and sections 11 and 19, the
attempt to give to the plaintiff in actions of assumpsit the right
to ask for an accounting.
Many of the sections of the act are merely declaratory of
the existing law, such as section 5, relating to the content and
form of pleading, excepting the requirement that the paragraphs
of the pleading shall be numbered ; sections 6 and 8, relating to
specific denial ; section 9, to statement of claim ; section 10, to the
indorsement of the statement of claim, excepting that it substi-
tutes a notice for a rule and requires an address for service to be
indorsed; section 12, to the affidavit of defense; section 14a, to
what may be set-off or counter-claimed; section 17, to motions
for judgment, excepting the proviso extending such procedure to
the plaintiff's reply; sections 21 and 21, to the power of the court
to deal with the pleadings and to make rules relating to them.
The sixteenth section is likewise declaratory, excepting that it
applies to the pleadings under their modern names the rules which
were applicable to the pleadings at common law.
268 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
There are certain other features of the act which are partly
new and which will likewise be found serviceable in actual prac-
tice, such as the provisions for the closing of the pleadings with
the reply, section 2 ; and for an affidavit of defense from execu-
tors, etc., section 7.
There are a number of purely procedural details that ought
properly to have been disposed of in rules of court, but were
introduced because in Pennsylvania the only method for securing
uniformity in practice is by legislative enactment. This raises
the question involved in the consideration of all matters of pro-
cedure, as to whether the prevailing method of providing for
judicial procedure by legislative enactment should not be changed
in favor of the English and Canadian system partly adopted in
some of the United States, wherein the legislature has renounced
the right to prescribe the details of procedure and has ceded it to
the courts. 150 It has been suggested that an act of the legislature
giving the right to the Supreme Court of Pennsylvania to make
uniform rules for all of the courts of the state is of doubtful
constitutionality and a bar to the adoption of the system above
referred to. If this be so, then the present practice in Pennsyl-
vania whereby the legislature biennially tinkers with matters of
judicial procedure must be continued until the constitution is
amended. At present, the practice is an amalgam of legislative
rules and rules of court. The tendency indicated in the more
recent legislation is toward the enlargement of powers of the
court in purely procedural matters, although the emphasis is still
laid too strongly on the right of the legislature to prescribe such
Attention may again be drawn to the fundamental problem
involved in the consideration of this subject, namely the plan of
unification of the entire judicial system of the commonwealth. 16 ' 1
This plan includes the constitution of a judicial council consisting
""For an analysis of the English system see Samuel Rosenbaum: Studies
in English Civil Procedure— The Rule-Making Authority, 63 Univ. of Penna
Law Review, 151.
m See Bulletin 7 of American Judicature Society entitled "First Draft of a
State-wide Judicature Act," October, 1914.
THE PENNSYLVANIA PRACTICE ACT OF 1915 269
of representatives of the appellate and county courts among
whose functions will be the power to make and amend all rules
relating to procedure. The subject is one which invites the most
serious consideration of the bar. The plans thus far suggested
and proposed in the light of a broad study of comparative judi-
cial procedure have so much to recommend them that their
careful study and discussion by the bar is highly to be recom-
No attempt has been made in this review and criticism of
the Practice Act of 191 5 to consider many matters which might
have been provided for in the act or matters which were included
in the original drafts, but ultimately abandoned. Nothing is
easier than to suggest a thousand and one things that have not
been provided for in any scheme of procedural regulation. It is
much more important, certainly more difficult, and surely more
considerate, to appraise that which has been accomplished.
On the whole, the Practice Act of 19 15, if it shall be de-
clared to be constitutional, will introduce certain new features
into the general practice of Pennsylvania which will probably be
found to be efficient in promoting the object of the law to secure
a speedy trial of the merits of contested questions. If practice
during the year 1916 under this act will show that some of its
features are undesirable, the legislature of 191 7 may correct
them. The general progress of the movement toward simplicity
in procedure which began in the very infancy of the common-
wealth and has manifested itself in various procedural reforms
during the nineteenth century is promoted by the present Prac-
tice Act, the good features of which incorporated in the general
procedure of the state, will help to prepare the bar for the ulti-
mate step above suggested, namely, the relegation of the entire
problem of procedural regulation to the courts.
David Werner Amram.
Law School, University of Pennsylvania.