As, according to the cases of Murray v. Keys, 35 Penn. St. 384, and Parke v. Kleeber, 37 id. 251, the word "or," as found in the above recited section, must be read "and," there can be no judgment against a feme covert, except on proof that the debt was contracted by the wife, "and incurred for articles necessary for the support of the family of said husband and wife." Now, as the judgment in the case before us was rendered in the common pleas, on a motion for want of appearance, clearly the statutory proof was wanting, and the court had no warrant for its action. But more than this the proceedings before the alderman were coram non judice, since her liability, as defined by the act, nowhere appears on the face of his transcript. It follows that his judgment, as to her, was not merely voidable, but absolutely void. Hecker v. Haak, 88 Penn. St. 238. There was, therefore, nothing in the common pleas which gave it jurisdiction over the person or estate of the married woman, defendant, for the appeal being from a void judgment, it brought into that court nothing upon which it could act. The judgment of the court of common pleas, so far as it affects Mrs. Gould, is now reversed and set aside.

REAMS v. PANCOAST.

January 4, 1886.

LANDLORD AND TENANT - DAMAGES FOR IMPROPER USE OF PROCESS.

Reams leased a house to Pancoast for one year from April 1, 1882, at a stipulated rent, payable monthly; the lease provided, that if Pancoast should continue on the premises after the termination of the lease, then the contract should continue in full force for another year, and so from year to year, till legal notice should be given for removal; also, that Pancoast should pay the rent as it fell due, or within five days thereafter, in default of which Reams might re-enter and take possession, or at his option enter judgment against Pancoast in an action of ejectment, to be brought to recover possession, without appeal, writ of error, or stay of execution. Pancoast continued on the demised premises after the expiration of the first year term; on February 1, 1884, he became in arrears for rent, and on February 5, 1884, Reams demanded his rent; not being paid, he commenced an action of ejectment, caused judgment to be entered, and issued a writ of hab. fa.; later the sheriff dispossessed Pancoast, who then brought an action for damages against Reams for improper use of process; on the trial, a verdict was rendered in favor of Pancoast for $300. Reams then took a writ of error. The supreme court held there could be no recovery by Pancoast as he was not entitled to any damage.

Error to the court of common pleas, No. 2, of Allegheny county. The facts in full are fully stated in the syllabus and opinion.

Joseph Hays, for plaintiff in error. fendant in error.

Marshall & Imbrie, for de

PAXSON, J. It would have been better if the learned judge of the court below had omitted from his charge the expression of his personal dislike to the lease. See first assignment of error. It was not mate

rial to the issue upon trial. Moreover, it was well calculated to prejudice the case of the defendant. The average juryman would not be likely to regard a lease of this nature with much favor, and when the court adds the weight of its condemnation, there is danger of the real merits of the case being lost sight of. That something of the kind

must have occurred in this case seems probable from the fact that the jury rendered a verdict in favor of the plaintiff for $300, when there was nothing to justify it. There was no evidence of the malicious use or abuse of civil process. The lease contained a clause authorizing a confession of judgment in ejectment for non-payment of rent. The rent was in arrear; a judgment was confessed; a writ of habere facias possessionem was issued, and under it the sheriff ejected the plaintiff and delivered the possession of the house to the defendant. All this was done in accordance with the forms of law. We attach but little weight to the alleged tender of the rent on the fifth of February. The testimony does make out a tender, there was some talk, nothing more. It ended in the defendant notifying the plaintiff that he would send a man to put him out of the house the next morning. He did not do so, however. The plaintiff was not ejected until the twenty-eighth of February, more than three weeks thereafter. No attempt was made by the plaintiff to pay his rent during that time although he knew it was in arrear, and he had been told he would be thrown out of the house on account of its non-payment.

Under such circumstances it was error in the learned judge to instruct the jury that they might find punitive damages. The plaintiff was not entitled to any damages whatever.

Judgment reversed.

An affidavit of defense to be effective must disclose a state of facts sufficient to exhibit the elements of a substantial defense; the facts should not be set forth in any equivocal or evasive manner, but with reasonable precision, so that the plaintiff may be accurately advised of the true nature of the defense, if any exists. It must set forth facts specifically, mere general denials, or general averments, which involve questions of law as well as of fact, are insufficient.* Averments that the defendant " 'has a just, full and legal defense; "that he "is not legally indebted to the plaintiff in any sum of money whatever;" that he is not legally bound and cannot be liable," are by reason of their generality, when not connected with specific facts, insufficient to prevent judgment. Error to the court of common pleas, No. 2, of Allegheny county, Mary E. Noble, the wife of George Noble, carried on business under a deed of trust; the business was conducted under the name of Noble & Co.; George Noble was the agent of the business, and was so specified in the deed of trust. He purchased merchandise for Noble & Co., from W. A. Kreuzkamp; later Kreuzkamp brought an action. against George Noble, late doing business as George Noble & Co., for the price of the merchandise; George Noble filed an affidavit of defense as follows:

"ALLEGHENY COUNTY, 88.:

66

Personally came George Noble, who upon oath says, that he has a full, just and legal defense to above plaintiff's cause of action,

to-wit:

* See ante, 632.

"1st. Affiant says that there is no such firm as set forth by the plaintiff in this suit, and that he never was a member of any such partnership as George Noble & Co.

2d. Affiant says he is not legally indebted to plaintiff in any sum of money whatever.

"3d. Affiant says that the plaintiff's acceptance, filed and made part of his affidavit of claim, is not the acceptance of George Noble & Co., but shows an acceptance of Noble & Co., of which your affiant is not legally bound, and cannot be held liable, all of which affiant is able to prove. "GEORGE NOBLE."

Sworn and subscribed this 8th)

day of March, 1884.

J. O. BROWN, Pro.

Subsequently he filed a supplemental affidavit of defense as follows: "ALLEGHENY COUNTY, sct.:

"Personally came George Noble, who, upon oath, duly administered says, that for further defense he never, individually, assumed the payment of above plaintiff's claim nor did he ever agree or promise the payment thereof, and that he never was a member of the firm of George Noble & Co.,' and that he never carried on or did business as George Noble & Co., doing business as George Noble.

"Your affiant says at the time the debt in suit was contracted, deponent's wife, Mary Emma Noble, carried on the said business, under the name of Noble & Co., by virtue of a Patterson deed of trust, duly recorded in the recorder's office of Allegheny county, in vol. p. and that she, and no other person, was interested in the said firm of Noble & Co., nor was any other person associated with her in the said business.

"Your affiant further says, that he never purchased said goods for himself doing business as George Noble & Co., but that the plaintiff well knew of said Patterson deed to his wife, as aforesaid, and that he acted as her agent under said deed.

Sworn and subscribed to before me,

this 17th day of February, 1885.

J. O. BROWN, Pro.

"GEORGE NOBLE."

The common pleas entered judgment against defendant for want of a sufficient affidavit of defense.

S. M. Raymond, for plaintiff in error. John S. Ferguson, for defendant in error.

CLARK, J. This suit was brought against George Noble for an individual indebtedness, which it was averred he contracted under the name of George Noble & Co. It was unimportant, perhaps, what was the precise name under which he was doing business at the time, whether as George Noble & Co., or Noble & Co., the suit was against George Noble, and it devolved upon him, in his affidavit, "to state specifically and at length," such facts as would relieve him from responsibility for the claim.

The affidavit to be effective must disclose a state of facts sufficient to exhibit the elements of a substantial defense; the facts should not be set forth in any equivocal or evasive manner, but with reasonable precision, so that the plaintiff may be accurately advised of the true nature of the defense, if any exists. An affidavit must set forth facts specifically; mere general denials, or general averments, which involve questions of law, as well as of fact, are insufficient.

The several averments that the defendant "has a just, full and legal defense;" that he "is not legally indebted to the plaintiff in any sum of money whatever;" that he "is not legally bound and cannot be held liable," are, therefore, by reason of their generality, when not connected with specific facts, insufficient to prevent judgment. The original affidavit was, we think, clearly insufficient. But if the facts set forth in the original and the supplemental affidavits, taken together, are true, and we must assume that they are, a substantial defense is stated. They are, it is true, not set forth with that degree of precision and skill which is to be commended, but with sufficient clearness, we think, to serve the purposes of the rule.

The defendant says substantially that he never did business nor was member of any firm known as George Noble & Co.; that there is no such firm; that at the time the debt in suit was contracted, his wife, Mary Emma Noble, carried on the said business in the name of Noble & Co. under a certain deed of trust which he calls a "Patterson deed of trust," and that she and no other person was inter ested in the firm, and no person was associated with her; that he did not purchase the goods for himself, as charged against him, but that the plaintiff well knew of the trust at the time, and that the affant was acting as her agent under the deed.

Now it was only necessary for the defendant to develop a valid prima facie defense; the case was not required to be presented in all its varied aspects, in chief and in rebuttal, in the affidavit of defense; nor was it required that the defendant should state the manner in which the facts would be proved, or the evidence by which they would be established. Kauffman v. Copper Iron Co., 105 Penn. St. 537.

He does state that his wife conducted the business under a certain deed of trust, which it was undoubtedly competent for her to do; that he was her agent only, which he had a right to be; and that the plaintiff knew not only of the trust but of the agency at the time. Now this we think, if true, was a valid defense, because in that case the goods were sold to the wife upon the credit of the trust, through the mere agency of the husband, and not to the husband or upon credit. This was certainly sufficient, if established, to overcome the prima facie case made by the affidavit of claim, and to send the case to a jury.

The judgment is reversed and a procedendo awarded.

his

BERG & Co. v. McLAFFERTY.
January 4, 1886.

JUDICIAL SALE - NO ESTOPPEL- INQUISITION AND CONDEMNATION.

A valid sale of a defendant's real estate may be made upon a writ of ven. ex. without a previous inquisition and condemnation, or waiver of inquisition. If the defendant desires to prevent such a sale from taking effect, he must avoid assenting to it, surrendering the possession, or appropriating the proceeds to the payment of his debts, and he must, within a reasonable time, appear and object. A., and others, who were heirs of B., who had purchased a tract of land from the children of C., brought ejectment to recover the possession from D., who had purchased at sheriff's sale the interest of C., alleging that they were entitled to recover, as there had been neither inquisition nor condemnation preceding the sale by the sheriff. It was shown on the trial that A. was present at the sale and assented to it; that an auditor had distributed the proceeds, applying part to the payment of judgments against C., and part to the administrator of C.; that no objection was made to the sale under the ven. ex., by A. and his co-plaintiffs in the ejectment; that the possession of the land was voluntarily surrendered to D., the purchaser at sheriff's sale; and that surrender had been acquiesced in for eighteen months before suit brought. The common pleas directed a verdict in favor of the plaintiffs. Held, that the facts should have been submitted to the jury, as tending to show an estoppel,

Error to the court of common pleas of Butler county. The facts are fully stated in the syllabus and opinion.

Levi W. Quistion and W. D. Brandon, for plaintiffs in error. Charles McCandless and Thompson & Son, for defendants in error. GREEN, J. We certainly did decide both in Wray v. Miller, 20 Penn. St. 111, and Spragg v. Shriver, 25 id. 282, that a valid sale of a defendant's real estate might be made upon a writ of ven. ex. against him without a previous inquisition and condemnation, or waiver of inquisition.

It was held in both of those cases that where a sale was had upon a ven. ex. without waiver or condemnation, it was the duty of the defendant to appear and object within a reasonable time, and, also, that even where he did appear and object he might be estopped by circumstances from either impeaching the regularity of the proceedings, or subsequently attacking the title of the purchaser at sheriff's sale under the ven. ex. The circumstances which were held to amount to an estoppel were the assent of the defendant to the sale, his surrender of possession of the lands sold, the appropriation of the proceeds of sale to the payment of his debts. In Spragg v. Shriver there was the additional fact that the defendant had induced the purchaser to buy the land sold under the writ. In both cases it was conceded that a sale upon a fi. fa. without a waiver or condemnation is void, but that is because the act of 1836, which allows a sale upon a fi. fa., expressly requires the waiver to be in writing.

In the present case the sale was upon a ven. ex. and the evidence of a written waiver is not sufficient to establish that fact. But there was an abundance of facts proved and offered to be proved, to raise the question of estoppel if believed by the jury, and it was, therefore, error in the learned court below to give a binding instruction to the jury to find for the plaintiffs. There was evidence that Daniel McLafferty, one of the plaintiffs, was present at the sale and assented