McKees Rocks' Petition. is unnecessary, in fact that question is not raised. It appears that Mrs. Robb and Mr. Zeleska have paid the assessments against their respective properties. It is fair to assume that the Borough has paid, or provided by taxation for the payment of, the amount assessed against it. The fact that Mrs. Munson has neglected or refused to pay, does not raise any question that should be submitted to a Board of Viewers. The Borough, having clected to proceed under the provisions of the Act of May 12th, 1911, and having approved the assessment made at its request by its engineer, cannot evade or avoid the effect of its own acts by having the question of costs, damages, &c., reopened and submitted to a Board of Viewers. ORDER. And now, July 27, 1916, the order of March 25, 1916, appointing Viewers in above entitled proceeding is vacated and petition dismissed. BY THE COURT. Hammon vs. Hammon. Pleading and Practice--Action for Use and Occupation---Averments--Affidavit of Defense—Failure to File-Act of May 14, 1915, P. L. 483. The purpose of the 13th section of the Act of May 14, 1915, P. L. 483, known as the New Practice Act, is to inform plaintiff what he shall be called upon to prove at the trial, by requiring defendant to admit or deny the agency, ownership or possession alleged, but defendant is not required to admit or deny plaintiff's allegations as to the trespass or the damages sustained. In an action of trespass, when defendant fails to file an affidavit of defense, the case shall be deemed at issue and be placed on the trial list, but by his failure to file an affidavit of defense, defendant admits the allegations as to agency, ownership and possession averred in plaintiff's statement. There is no provision in the Act authorizing the entry of judgment for want of a sufficient affidavit of defense in an action of trespass. An action to recover the fair rental value of premises occupied by defendant without the consent of the owner is an action in trespass, and a rule for judgment for want of a sufficient affidavit of defense will be discharged. Trespass. No. 1356 April Term, 1916. C. P. Allegheny County. James Edgar Little, for plaintiff. FORD, J., April 17, 1916.-The Act of May 14, 1915, P. L. 483, commonly called the New Practice Act, provides that in actions of assumpsit and trespass the pleadings shall consist of plaintiff's statement of claim and the defendant's affidavit of defense, and when a set-off or counter-claim is pleaded, the plaintiff's reply thereto. Section 13 deals with the subject of affidavits of defense in actions of trespass and provides that the averments in the statement of the person, by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery or instrumentality involved and all similar averments, if not denied, shall be taken to be admitted, the averments of the other facts on which the plaintiff relies to establish liability and averments relating to damages claimed or the amounts need not be answered or denied, but shall be deemed to be put in issue unless expressly denied. The purpose of this section is to inform the plaintiff what he will be called upon to prove at the trial, by requiring the defendant to admit or deny the agency, ownership or possession alleged. The defendant, however, is not required to admit or deny the allegations of the statement averring the commission of the trespass nor the damages sustained. Section 18 provides that in actions of trespass, when the defendant tails to file an affidavit of defense within the required time, the case shall be deemed at issue and may be ordered on the trial list, indicating that the defendant is not required to file an affidavit of defense, but by his failure to file an affidavit of defense he admits the allegations of agency, ownership and possession averred in the statement. The right of a plaintiff in an action of assumpsit, to take a rule for judgment for want of a sufficient affidavit of defense, is prescribed by Section 17. There is no provision in the Act authorizing the entry of judgment for want of a sufficient affidavit of defense in an action of trespass. This action is not based upon a contract, and was brought to recover the fair rental value of premises which plaintiff claims was occupied and used by defendant without the consent of plaintiff. Defendant denies that he was a trespasser and avers he was rightfully in possession as tenant under a lease entered into by plaintiff's wife, who was in control of the property. Hammon vs. Hammon. This being an action in trespass, we are of opinion that the rule should be discharged.. ORDER. Now, April 17, 1916, Rule discharged. Wilson vs. Tonella et al. Foreign. Attachment--Rule to Dissolve-Affidavit-Amendment--Act of June 13, 1836. An affidavit to a writ of foreign attachment which does not contain the allegations necessary to give the court jurisdiction, as to residence of defendant within the county and State, may be amended, and a substantial compliance with the words of the Act of June 13, 1836, is sufficient. In re Rule to Show Cause Why Writ of Foreign Attachment Should Not Be Dissolved. No. 669 January Term, 1916. C. P. Allegheny County. Cosgrove & Langfitt and Asa L. Carter, for plaintiff. Joseph Stadtfeld, for defendant. M. L. Thompson, for garnishee. DAVIS, J., January 14, 1916.-The defendant has entered appearance de bene esse in this case and obtained a rule December 18th, 1915, to show cause why the writ of foreign attachment should not be dissolved for the following reason: That the affidavit of cause of action and statement of claim are indefinite and insufficient in law to sustain the attachment. In the affidavit filed on which the writ was issued, the plaintiff alleged that "defendant is and has been at all times herein mentioned a citizen of the State of New Hampshire, and resides within the said State." On December 31, 1915, the court made an order permitting the plaintiff to amend his statement, and in the said amended statement the plaintiff alleged "that the defendant is not a citizen of Allegheny County and cannot be found therein, but is and has been at all times as herein mentioned a citizen and resident of the State of New Hampshire. In the case of Hallowell vs. Tenney Canning Company, 16 Supr., 60, the court held that in a foreign attachment where the plaintiff files an affidavit of cause of action which is defective in not stating the jurisdictional facts as to the non-residence of the defendant, and after the rule had been granted to dissolve, the plaintiff might file a second affidavit of cause of action setting up such facts as would give the court jurisdiction. The Act of June 13, 1836, relating to foreign attachments provides that: "Foreign attachments may be issued against the real or personal estate of any person not residing within this Commonwealth, and not being within the county in which such writ shall issue at the time of the issuing thereof." The defendant's contention is that this amendment in the second affidavit of cause of action is not in compliance with the Act and is not sufficient to give the court jurisdiction and in not stating specifically in the words of the Act that the defendant "not being within the county in which such writ shall issue at the time of the issuing thereof." It would undoubtedly be better practice if the plaintiff had followed and used the words of the Act, but where there is a substantial compliance with Wilson vs. Tonella et al. the terms of the Act showing the jurisdiction as in this amended statement where the plaintiff alleges that at the time of the issuing of the writ "the defendant is not a resident of Allegheny County and cannot be found therein," we are of the opinion that this is a substantial compliance with the terms of the Act and gives the court jurisdiction in this case. ORDER. And now, January 14, 1916, the rule to show cause why the attachment should not be dissolved in this case is discharged. Callery vs. Geyer et al. Judgment -Rule for Insufficient Affidavitages-Proof of. -Allegations as to Fraud -Dam A rule for judgment for want of a sufficient affidavit of defense will be refused in an action for damages for failure to comply with the conditions in a written contract to convey a specific amount of capital stock in a corporation, where it is alleged false representations were made as to the financial condition of the company, as before plaintiff will be entitled to recover he must show what loss or damage, if any, he has suffered by reason of any misrepresentations by defendants. Rule for Judgment for Want of Sufficient Affidavit of Defense. No. 1822 July Term, 1915. C. P. Allegheny County. Reed, Smith, Shaw & Beal, for plaintiff. DAVIS, J., March 28, 1916.-The plaintiff brings this action to recover damages for failure to comply with the conditions in a written contract of the defendants to convey a specific amount of the capital stock of the Pennsylvania Light & Power Company. The conditions alleged to be broken are: (a) That the defendants agreed and guaranteed that "the financial condition of the said Pennsylvania Light & Power Company is as shown by the statement hereto attached, made a part hereof and marked Exhibit 'A'." (b) That the defendants further agreed that "if there are any debts of the Pennsylvania Light & Power Company not shown upon the said statement, Exhibit 'A' hereto attached, that the parties of the first part will pay them, or cause them to be paid, but not out of the assets of the said company." Plaintiff alleges in his statement that Exhibit "A" did not disclose the financial condition of the said company, and that said Exhibit "A" did not disclose all the debts then due and owing by said company. Plaintiff further alleges that by reason of this false or untrue representation as to the financial condition of the company and debts not listed, that the defendants owe the plaintiff the sum of $35,285.00. The plaintiff admits the liability to the defendants of $15,224.00 arising out of the same contract for commissions due defendants on the sale and delivery of the stock. The plaintiff then seeks to hold the defendants for the difference, less the commissions, to wit, the sum of $20,061.00. It was conceded on the argument of the rule for judgment that an item of $14,935.98 (the amount of alleged uncollectible book accounts) should or ought to be excluded for the reason that the defendants' denial in the affi Callery vs. Geyer et al. davit of defense was as specific as plaintiff's allegation of loss in relation to the said book accounts. The plaintiff in his rule for judgment further conceded a sufficient allegation of defense to an item of $1,285.05, reducing the amount of judgment to $18,777.95. Deducting from this amount the item of said book accounts of $14,935.98, would only leave a balance of $3,841.97, for which plaintiff would, in any event, be entitled to judgment. We are of opinion that plaintiff is not entitled to judgment for this amount until he has shown what loss or damage, if any, he has suffered by reason of any false representation or misrepresentation of the financial condition of the said company, or that he has paid any of the debts of the said company not listed, or that the said company has paid or will be compelled to pay such debts that will affect the value of his stock purchased. Assuming that the allegations of the plaintiff in his statement are true, he had the right to rescind the contract, return the stock and demand the return of the purchase money, or he could retain the stock purchased and defend against the purchase money or recover in an action for deceit the difference between the value of the stock as represented or warranted and the actual value at the time of the sale: Lukens vs. Aiken, 174 Pa., 152. In re Bonus on Capital Stock. Foreign-Incorporation Under Pennsylvania Laws-Bonus on Corporations When a foreign corporation, after having capital invested and after having done business within the State, decides to be incorporated as a Pennsylvania corporation, it is required to pay the bonus imposed by the laws of Pennsylvania upon the amount of the capital stock which the Commonwealth authorizes it to have, and is not entitled to off-set against such bonus the amount of bonus which, as a foreign corporation of the same name, it paid on account of capital or property which is employed in Pennsylvania. Recently you asked the Attorney General this question: "Is a corporation incorporated under the laws of a foreign State, and operating in this State, and paying a bonus upon its capial stock employed here, upon being domesticated, exempt from payment on the bonus paid to the Secretary of the Commonwealth before charter issues, upon so much thereof as has been previously paid by it while operating under its foreign charter?" I understand the question arises with reference to the intended incorporation of the Petroleum Telephone Company by the State of Pennsylvania. A "Petroleum Telephone Company" was incorporated by the State of West Virginia on June 4, 1900, and constructed and has been operating since March 14, 1902, a plant at Oil City, Venango County, Pennsylvania, and vicinity. It now desires to become a domestic corporation, under the |