#### Reading *v.*Bentley.

The action of the court in striking off a plea that the alleged use plaintiff ought not to maintain the suit because the use plaintiff named on the record had marked it to the use of the defendant, is not a final judgment, reviewable in the supreme court.

Feb. 1, 1889.

Error, No. 88, Jan. T., 1889, to C. P. No. 4, Phila. Co., to review the action of the court in striking off a plea that the alleged use plaintiff ought not to maintain the suit because the use plaintiff named on the record had marked it to the use of the defendant, in an action on the case, by B. Stewart Bentley and John K. Fredericks, assignees in bankruptcy of Peter Herdic, at March T., 1884, No. 45.

Motion to quash writ because the order of the court was not a final judgment.

*722After the writ of error, in the case reported next above, was quashed, the defendant, on Oct. 20, 1888, filed the following plea:

“ And the defendant says that James P. Herdic, administrator of Peter Plerdic, who claims to be the use plaintiff herein, ought not further maintain this action, because he says that this action was brought for the use of Frank L. Herdic, and that the said Frank L. Plerdic did, on the 19th day of December, 1884, lawfully mark the said action to the use of Joseph M. Gazzam for this defendant, and that thereby the said several causes of action, set forth in the declaration and bills of particulars filed herein, became lawfully vested in the said Joseph M. Gazzam for the benefit of the defendant, and this he is ready to verify.”

A rule to strike off this plea was made absolute by the court, whereupon the defendant took this writ.

*The assignment of error*specified the action of the court in making absolute the rule to strike off the defendant’s plea.

*James W. M. Newlin,*for plaintiff in error.

When the court below struck off the plea in which Mr. Reading tenders issue on the fact of the bona fides of the settlement, which issue, if decided in his favor, would terminate the cause, the court below effectually precluded Mr. Reading from going to a jury on the lawfulness and good faith of the settlement with Frank Herdic.

What is the practical effect of this ? The way to test that will be to assume that the court below has, under the new procedure Act, entered a plea of the general issue in default of any plea filed by the defendant, and, the case being regularly reached, a jury is sworn. Peter Herdic’s administrator would ask that the jury be sworn as follows: “ B. Stewart Bentley and J. K. Fredericks, assignees in bankruptcy of Peter Herdic, for the use of Frank L. Herdic, for the use of James P. Herdic, administrator of Peter Herdic, deceased.”

The defendant would thereupon endeavor to protect himself from a recognition of the claims of Peter Herdic, by objecting to the jury being sworn in this manner, by reason of the case having been marked to the use of Mr. Gazzam, and as a means of forcing Peter Herdic’s estate to meet this issue before the jury. The common pleas, however, says, this preliminary issue shall not be tried, and orders the jury to be sworn to try the issue between Peter Herdic’s estate and the defendant.

Thus, by the act of the court, this mixed issue of fact and law is, without the intervention of a jury, and without the possibility of a review, finally decided against Mr. Reading. Peter Herdic’s administrator having thus effectually evaded this issue, goes to trial on the merits, and, without being called upon to vindicate his own ownership of these claims, is allowed to begin before a jury an interminable inquiry into the affairs of the Susquehanna Boom Co., covering a period of ten years, from 1873 to 1883, and other complicated ques*723tions of account set forth in the bill of particulars, and, under the ruling of the common pleas now assigned for error, Mr. Reading, though offering to demonstrate to the jury the good faith of the settlement with Frank Herdic, which the master approved of, is obliged, without having an opportunity so to do, to put himself to the expense (at the suit of an utterly impecunious litigant who has no right to sue) of uselessly and needlessly trying to settle stale accounts before a jury.

When Herdic’s administrator is through, and the defendant opens his case, what is he to do ? If he attempts to show the good faith of his settlement with Frank L. Herdic, the answer is that this contention is not before the jury. That point has been passed upon by the court, and, besides, you are attempting to try a one-sided contention and not an issue joined with Peter Herdic’s estate, which has not gone into this question in chief, and therefore you cannot introduce a new question of fact upon which no issue has been joined, as it would not be within the province of the jury to determine a mere verbal dispute not raised by the pleadings. But Herdic’s administrator says that it is not the case, and your plea is only stricken off because it is a special plea, and special pleas are abolished under the new procedure Act. It is shown elsewhere that this objection is not well taken, and, aside from that, there is nothing on the record to show that this was the only ground upon which the court below undertook to strike off the plea, and therefore the defendant would have to go to trial fully prepared to defend the case on the merits, the same as if the suit had been brought originally by Peter Herdic for his own use, and as if he had never gone into bankruptcy and the case had never been settled. State the proposition another way, and suppose that the court below, at the trial, permitted Mr. Reading to go into the question of the bona fides of the settlement with Frank Herdic. This would give rise to new difficulties. Peter Herdic’s administrator would except to this ruling, so that he might thereafter assign it for error, and then Mr. Reading offers the evidence which satisfied the master that the settlement with Frank L. Herdic was bona fide. He cannot rest his case here, because he has no way of taking the sense of the jury upon this part of the case, and, by the jumble into which the court below has got the record, notwithstanding he may have satisfied the jury that the settlement with Frank L. Herdic was in good faith, and not knowing this fact, he must proceed to try the case on its merits.

If the jury finds for the plaintiff, there is no way of ascertaining how they arrived at this result, and if the jury finds for the defendant, the plaintiff will assign for error that the jury was predjudiced against him by the admission of evidence concerning the settlement with Frank L. Herdic, so that, in whatever aspect the case is viewed, the practical effect is to deprive the defendant of a trial on the merits of a question of fact, which, if determined in his favor, would end this litigation, and it is a final judgment against him, in this regard, *724and thus, without a jury trial, or a review by this court of the action of the common pleas, the defendant will have been finally deprived of the rights he derived from his settlement with Frank Herdic.

The action of the court below is a final judgment, because, if it is not now the subject of review, it never can be reviewed in any practical manner.

As this case was begun and the declaration was filed prior to the passage of the Act of May 25,1887, the provisions of that Act, abolishing special pleas, does not apply. The pleadings cannot be made up partly under the common law and partly under the new Act.

It is true that, in the case of Krause *v.*Pa. R. R., 20 W. N. C. 113, the C. P. decided that the new Act applied to an action brought before its passage; but there the plaintiff filed such a statement as the new Act required, and in the present case a common law declaration had been filed long before the new Act was passed.

In Bank *v.*McHenry, 20 W. N. C. 366, this court decided that judgment might be had under the Act of March 28, 1835, for want of an affidavit of defence in an action brought after the new procedure Act. To the same effect is Commonwealth *v.*McCutcheon, ■ 4 C. C. 309.

In Grossman *v.*Huber, C. P. No. 3 Phila. Co., 21 W. N. C. 96, special pleas were filed before the Act of May 25, 1887. The court held that the Act had no application to causes which were commenced, and in which the pleadings were filed, prior to its enactment. In Slatteny *v.*Pa. R. R., C. P. No. 2, Phila. Co., 21 W. N. C. 550, it was held that there was nothing in the Act to show that the distinction between pleas in abatement and pleas in bar has been abolished. In that case, a plea in abatement was sustained, although the action was begun after May 25, 1887. The supreme court does not appear to have passed on the question at all.

In § 7 of the Act of 1887, which provides that “ special pleading is hereby abolished,” the general phraseology of the Act must be construed to mean that special pleading is abolished as to “ all demands .... [which] shall hereafter be sued for .... in one form of action, to be called an action of assumpsit.”

This line of reasoning is strengthened by the fact that the Act provides that, instead of the old common-law declaration, the plaintiff shall file a complaint, which shall contain “ a concise statement of the plaintiff’s demand, as provided by § 5 of the'Act of March 21, 1806, which, in the action of assumpsit, shall be accompanied by copies of all notes, contracts, book entries .... upon which the plaintiff’s claim is founded.”

Notwithstanding the fact that no such statement was ever filed under this Act, the plaintiff expects to subject the defendant to the hardship of being unable to plead specially, because special pleading is abolished by § 7 of the very Act which he himself has not followed in the pleadings.

*725Feb. 1, 1889.

The plea stricken off was not *“*special pleading ” within the new procedure Act.

The distinction between pleas in bar and pleas in abatement, under the new Act, has no foundation in reason. And yet it has been held that a plea in abatement is good under the new Act, and that a plea in bar is not.

If a little common sense is imported into the consideration of this matter, it sufficiently answers the case to say that a plea “ puis darrein continuance ” is not within the purview of that portion of the new Act which says, in § 7, “ special pleading is hereby abolished.”

The provisions of § 7, abolishing special pleading, must be construed in connection with the context of the Act, and all it means is, that, where a statement is filed such as is required by the Act, matters of defence upon the merits of the causes of their action must be brought in under the general issue pleas provided by the statute. It certainly never meant to restrict the pleading of matters happening since the suit was begun to the statutory pleas. Suppose the position were reversed, and the action had been brought by Peter Herdic himself, for his own benefit, even since the new Act, and subsequently he had made an assignment for the benefit of his creditors, and was, nevertheless, attempting to carry on the litigation in his own name. Would anyone pretend that in such a case the Act of 1887 would prevent the filing of a plea that would distinctly set up the assignment against a continuance of the cause by Peter Herdic? If this were so, the defendant would have to wait until the case was actually before a jury, and there prove the assignment. Such an absurdity could not have been intended by the Legislature.

The present plea sets up matter of fact occurring since the action was brought, and it is, therefore, substantially a plea puis darrein continuance. Such pleading is not within the purview of § 7 of the Act of May 25, 1887.

Besides, as appears by Slatteny *v.*R. R., above, pleas in abatement may be filed under that Act, and pleas puis darrein continuance may be in abatement. See T. & H. Pr., §671.

*William S. Stenger,*for defendant in error,

was not heard, and presented no paper-book.

Per Curiam,

Writ quashed.

See, also, the preceding case.