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University of Pennsylvania 
Law Review 

And American Law Register 

FOUNDED 1852 

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. 

I. 

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and counties annexed" was repealed by the Queen in Council on 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. 

(223) 



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 
demand. 7 

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 
county. 

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. 

II. 

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. 

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 
them. 

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 
herein provided." 

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 
adopted. 37 

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 
be overlooked. 

"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 
required." 

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 
him. 

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 
pleading. 46 

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 
defense." 

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 
follows : 

"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 
manner." 

"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 
on motion. 

^ 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 
(1887). 

"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 
(1904). 

"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 
Act. 

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 
is questionable. 

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 
exhibited ? 

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- 
tice Act. 

™ 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 
itself. 84 



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 

Specific Denial. 

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- 
teen." 

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 
attorney." 97 

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- 
ing party. 

"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 
follows : 

" '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 
of law. 

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 
otherwise" ? 

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." 

"•Rule 8. 



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 
trial list." 

These sections introduce a change in Pennsylvania prac- 
tice, in providing for an affidavit of defense in actions of tres- 
pass. 

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 
Rule 10. 

*** 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 
with." 

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 
Sharswood: 122 

"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 
country." 

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- 
cation." 

m Morrison v. Moreland, 15 S. & R. 61 (1826) ; Pennell v. Grubb, 13 Pa. 
552 (1850). 

"""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- 
murrer. 

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. 
151 (1862). 

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. 

Plaintiff's Reply. 

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 
service hereof/ 

"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, 
sec. 24. 

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 
reply. 

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 

"'Rule 62. 

"•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 
to trial. 

General Provisions. 

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 
act." 

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- 
tion 6. 



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 
superfluous. 

'"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 
experience. 

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 
procedure. 

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- 
mended. 

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.