Arnold et al. v. The Edlis Barber Supply Company. office, and it appears that the negotiations for the property were conducted between Goehring and an attorney who came from Atlantic City. We have not attempted to lay down the law which should govern the trial judge, and have confined ourselves to a general statement of the principles actuating us in making our order. On the general subject of forfeitures, the case of Lynch v. Versailles Co., 165 Pa. 518, is in point. Another question arises in the case. At the time the rule was granted to show cause why the judgment should not be opened, the execution was stayed and the sheriff was directed to reinstate the tenant. At that time, as it appeared by the petition and later by the testimony, the sheriff had put all of the employees of the defendant out of the building and had placed Goehring therein. He had not removed any of the goods. In an action of ejectment the hab. fa. is a command to the sheriff to put the plaintiff in possession. Whether he has fully executed his writ depends upon the circumstances of the case. Where the question is merely one of title, the placing of the plaintiff on the property is sometimes sufficient, and, under some circumstances, even that is not necessary. Here a four-story building had in it goods and appliances of the defendant. Whether the writ was completely executed or not we need not decide. We think it is a serious question, in view of the fact that it is in reality a landlord and tenant case, in which, of course, an action of ejectment is a proper proceeding. Aside from this, an order restoring a defendant to possession after an adjudication that the judgment in ejectment was erroneous, is old and well established practice. It was held in Buchanan v. Banks, 203 Pa. 599, that where a judgment in ejectment was opened the defendant was entitled to be restored to possession to await the determination of the cause. See, also, Hoffman v. Hafner, 211 Pa. 10. From William J. Aiken, Pittsburgh, Pa. Gottesman v. Lee Lash Company. Practice, C. P.-Summons-Service of process-Foreign corporations— Act of June 8, 1911. 1. Where a foreign corporation has, under the Act of June 8, 1911, P. L. 710, registered its post-office address with the Secretary of the Commonwealth and thereafter moves from such address without notice to the Secretary, and, as a conBequence, fails to receive service of summons and statement of claim sent to it by the Secretary by registered letter, and judgment is entered against it by default, the company cannot thereafter have such judgment set aside; and especially is this so where it fails to move to set aside the judgment for over four months. Judgment-Opening judgment—Defence. 2. It is inequitable to open a judgment and require a trial where the defendant has not stated a defence in clear and unmistakable terms; and especially is this so where the alleged defence is largely in the nature of a set-off for unliquidated damages alleged to have arisen out of the plaintiff's breach of the contract upon which the suit was brought. Rule to open judgment. C. P. Schuylkill Co., March T., 1924, No. 341. M. M. Burke and P. H. Burke, contra. BERGER, J., Oct. 12, 1925.—This is a rule to show cause why a judgment obtained against the defendant, in default of an appearance and for want of an affidavit of defence, should not be opened. The Lee Lash Company, the Gottesman v. Lee Lash Company. defendant, being engaged in the business of theatrical advertising, entered into a written contract with Alfred Gottesman, the plaintiff, by which he was to insert and carry advertisements, to be supplied by the defendant, on the drop-curtain of the Strand Theatre, owned or operated by him in the Borough of Shenandoah, Pa., in consideration of certain payments to be made by the defendant. Suit was brought against the defendant on Feb. 5, 1924, to recover moneys alleged to be due in accordance with the terms of this contract. Service of the writ of summons in assumpsit, returnable to the first Monday of March, 1924, was made on Feb. 23, 1924, by serving the Secretary of the Commonwealth of Pennsylvania, and service of the plaintiff's statement of claim was made April 5, 1924, in the same manner. Judgment by default was entered May 12, 1924, and the rule to open the judgment was not filed until Oct. 27, 1924. The Lee Lash Company was registered as a New York corporation, in the office of the Secretary of the Commonwealth, under the provisions of the Act of June 8, 1911, P. L. 710, which provides in section 2, inter alia, that a "foreign corporation, before doing any business in this Commonwealth, shall appoint, in writing, the Secretary of the Commonwealth and his successor in office to be its true and lawful attorney and authorized agent, upon whom all lawful processes in any action or proceeding against it may be served; and service of process on the Secretary of the Commonwealth shall be of the same legal force and validity as if served on it; and the authority for such service of process shall continue in force so long as any liability remains outstanding against it in the Commonwealth. The power of attorney shall be executed with the seal of the corporation and signed by the president and secretary thereof; and shall contain a statement showing the title and purpose of said corporation, the location of its principal place of business in the Commonwealth, and the post-office address within the Commonwealth to which the Secretary of the Commonwealth shall send by mail any process against it served on him; which address said corporation may change, from time to time, as it may find occasion, by filing a certificate, under its corporate seal, with the Secretary of the Commonwealth, setting forth such change of address." The post-office address within the Commonwealth given by the Lee Lash Company to the Secretary of the Commonwealth, for the mailing of any process against it served on him, was 770 Drexel Building, Philadelphia. The Secretary of the Commonwealth, after having been properly served with the writ and the statement of claim, sent the service of the summons by registered letter on Feb. 23, 1924, addressed to the defendant at 770 Drexel Building, Philadelphia, and on April 5, 1924, did likewise with the plaintiff's statement which had been served upon him. The letter containing the service of the summons was returned by the postal authorities to the Secretary of the Commonwealth, marked "Removed;" and the letter containing service of the plaintiff's statement of claim was returned by the postal authorities to the Secretary of the Commonwealth, marked "Unknown." Prior to the return of these registered letters, the defendant had closed its office in Philadelphia at 770 Drexel Building, and had notified the postal authorities in Philadelphia to forward its mail to an address in the Liberty Building, Philadelphia, whence the addressee to whom the mail was to be delivered was directed to mail it to the defendant at Mount Vernon, New York. No notice of a change of address was given by the defendant to the Secretary of the Commonwealth. Service upon the Secretary of the Commonwealth of the writ and the plaintiff's statement of claim was, therefore, good service upon the defendant: Kraus v. American Tobacco Co. et al., 283 Pa. 146. The failure of the defendant to Gottesman v. Lee Lash Company. receive proper notice of the action filed against it, and of the necessity to file an affidavit of defence to the plaintiff's statement of claim, to prevent judgment by default, was entirely due to its own neglect. The delay in not moving to open the judgment from June 7, 1924, when the defendant learned that it had been entered, until Oct. 27, 1924, is inexcusable. In the exercise of a sound judicial discretion, we cannot relieve the defendant of the consequences of its neglect by directing the opening of this judgment. Moreover, it is inequitable to open a judgment and require a trial where the defendant has not stated a defence in clear and unmistakable terms: Noll v. Corporation of the Royal Exchange Assurance, 76 Pa. Superior Ct. 510, 515. The petitioner alleges that it has a defence to a great part of the plaintiff's claim, but does not specifically set forth the amount for which judgment was justly taken, nor the amount of the judgment to which the defence is alleged to exist. The alleged defence is largely in the nature of a set-off for unliquidated damages alleged to arise out of the plaintiff's breach of the contract upon which he sued and obtained his judgment. Unliquidated damages arising ex contractu may be set off: Wanamaker v. Quinn, 27 Pa. Superior Ct. 288; Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482. A set-off is a cross-cause of action, and, when pleaded, must be set forth with the same particularity as an original cause of action. This the petitioner has failed to do. It is only in actions brought before a justice of the peace, however, that the failure to set off a claim bars its recovery in a subsequent action. If the defendant has a just claim against the plaintiff, it may assert it hereafter in a proper action. The rule to open the judgment, therefore, cannot prevail. Oct. 12, 1925, rule to open judgment in the above stated case is hereby discharged, at the cost of the petitioner. Delaware, Lackawanna & Western R. R. Co. v. Weir et al. Carriers Common carriers-Rates-Interstate commerce-Export commerce-Set-off. 1. Where goods are shipped from a point in Pennsylvania to a point in United States territory in Panama, the rate between the shipping point in Pennsylvania and New York City, the transshipping point for the sea passage, is controlled by the rate established by the Interstate Commerce Commission and not by that established by the Pennsylvania authorities for intrastate traffic within the State. 2. The fact that the intrastate rate had been, by mistake, originally charged, will not affect the right of the carrier subsequently to collect the proper rate. 3. The contract between carrier and shipper is no longer a contract as to rates; it is merely a contract that the carrier will render transportation. 4. In an action by an interstate carrier for freight charges in a Pennsylvania court, the shipper cannot set off a claim for injury to goods, for the freight can be paid only in cash; in such case, the Pennsylvania defalcation act does not apply. Rules: (1) For judgment for want of a sufficient affidavit of defence; (2) for judgment for want of a sufficient counter-claim; (3) why counterclaim should not be dismissed. C. P. Susquehanna Co., Nov. T., 1924, No. 84. G. T. Morgan, for plaintiff; Van Scotten & Little, for defendant. SMITH, P. J., Aug. 24, 1925.-The pleadings at bar upon the above rules present interesting questions, which, under the authorities by the courts, appear to us not very difficult of solution. The three rules may be well considered together, for an affirmance of either of the second and third must result in a like affirmance of the first. Our discussion will be rather in the reverse order of their numbering. Delaware, Lackawanna & Western R. R. Co. v. Weir et al. And first, whether the counter-claim is such as may be properly interposed in this action, which is to recover by the plaintiff, a common carrier, the sum of $121.98 and interest, as freight charges for transportation of defendant's merchandise over its line from Hallstead Borough, Susquehanna County, Pennsylvania, to New York City, in the State of New York, and were the latter point the final destination, it would not be disputed the transportation would be "interstate" and not "intrastate," because it passes from one state of the American Union into and through another. But it is contended by the learned attorney for the defendant that from the pleadings we must assume it not to be within the term "interstate" transportation or commerce, because, being from one point in a state to Christobal, Panama, a portion of the distance being through territory of a foreign jurisdiction, it is "export" commerce or transportation, and an entire contract of shipment or transportation between the plaintiff and defendant from Hallstead, Pennsylvania, to Christobal, Panama, thus eliminating the jurisdiction of the Interstate Commerce Commission from or over the between Hallstead to New York shipment. No doubt it is in the nature of an export, although the final destination, Christobal, Panama, be on United States territory. Were this contention of defendant correct, then a shipment from San Francisco, California, across several of the states forming the American Union to Christobal, Panama, via New York City, would result in holding that the portion of transportation from San Francisco to New York City would also not be "interstate." It is clear to us no such conclusion is possible; and while we find no direct decisions on this point, either Federal or state, our conclusion would appear in accord with the reasoning of Morley, Circuit Judge, in McFadden v. Alabama Great Southern R. R. Co., 241 Fed. 562, in the Circuit Court of Appeals, Third Circuit; in error to the District Court of the United States, Eastern District of Pennsylvania, affirming judgment entered in the latter court (see 232 Fed. 1000) for want of sufficient affidavit of defence upon a claim by the Railroad Co. v. Plaintiff in Error for freight for transportation based upon the rate fixed by the tariff established by the Interstate Tariff Commission from points of origin in Alabama upon a railroad line and connecting lines to New Orleans and Port Charlotte, Louisiana, and Savannah, Georgia, on separate bills of lading to Birmingham, Alabama, state of origin, and there surrendered, reshipments interstate and new bills of lading issued to destination in Louisiana and Georgia. The defendant alleged in his affidavit of defence that he was only liable for the aggregate amount of the Alabama intrastate rate from point of origin to Birmingham, and the remaining interstate rate, which was less than the interstate rate alone for the entire distance of original and succeeding shipments, Thompson, District Judge, said (232 Fed. 1000, 1004): "The effect of the combination rate is to enable the carrier to charge and the shipper to pay a less and different compensation . . . from that published and filed and in effect at the time, by permitting the shipper and carrier to apply to a part of the continuous through transportation a rate not filed with the Interstate Commerce Commission. Such practice is contrary to the interpretation of the law in a long line of undisputed rulings by the Interstate Commerce Commission." Citing Standard Oil Co. v. United States, 179 Fed. 614. Were we to affirm the defendant's contention at bar on this point, it would afford both common carriers, shippers of commodities and passengers transported an easy pretext for deviation from the fixed and lawful charges by the interstate commission which is not permitted of circumvention in any manner. (See quotation, 237 U. S. 94, at bottom page 1002 of 232 Fed.) Delaware, Lackawanna & Western R. R. Co. v. Weir et al. Section 6 of the Federal Act to regulate commerce requires the filing of schedules of tariff or rates for transportation between points of termini, and further provides: "Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation ... between the points named in such tariffs than the rates, fares or charges which are specified in the tariff filed and in effect at the time." The primary purpose of the act in this regard was to fairly appraise shippers of the rates to be paid and to secure uniformity in charges: Per Noyes, Circuit Judge, in Standard Oil Co. v. United States, 179 Fed. 614, 623. At bar we may well omit discussion as to any possible error of the Hallstead agent of plaintiff company or other representatives of the railroad company involved in the correspondence indicated as "Defendant's Exhibits 1 and 2," attached to and made part of the affidavit of defence, for, as is said by Wooley, Circuit Judge, in McFadden v. Alabama Great Southern R. R. Co., 241 Fed. 562, 564: "We lay aside all considerations of conduct, intention, mistake and misunderstanding respecting the rate paid, for the law is very well settled that the act . . . demands not only that the carrier shall charge but that the shipper shall pay the legal rate. The contract between carrier and shipper is no longer a contract as to rates. It is merely a contract that the carrier will render transportation." This principle is reiterated by the Pennsylvania Superior Court in Philadelphia & Reading Ry. Co. v. Baer, 56 Pa. Superior Ct. 307, 310. Mr. Justice Henderson, in the opinion, saying: "The ignorance of the parties that a mistake had been made in the amount did not affect the question of liability. There is no place for the doctrine of equitable estoppel as applied to such a state of facts." And from opinion of Mr. Justice Stewart in C. R. R. of N. J. v. Mauser, 241 Pa. 603, 605: "No agreement for a rate other than that prescribed for the particular service can have any binding force. No matter how induced, the law will refuse to recognize in it any of the characteristics of a contract." And the rate filed with the interstate commission in accordance with such law becomes the lawful rate for that journey. It appears conceded by the affidavit of defence that the verity of the plaintiff's statement as to such filing of tariff of rates by it for the route, Hallstead to New York City, copied and attached to the statement of claim, is conceded, and that they are as sued for at bar, except that the gross amount is incorrectly computed because of defendant's allegations of a greater weight of the commodities transported than computed by the plaintiff. With this latter contention we have nothing to do at this time, and must assume, for the purposes of present motion, that plaintiff's computation is correctly made, for they have sued only for a certain sum computed at the correct tariff rate for transportation. The Interstate Commerce Act (section 6 above quoted) provides not only that the carrier shall not charge, demand, collect or receive greater or less compensation than the tariff rates, but also shall not receive different compensation. We do not discover any authoritative interpretation of this term different as applied to "compensation." Without elaborating upon this point, we find decided, peculiarly appropriate at bar, the authority of Chicago & N. W. R. R. Co. v. Stein, 233 Fed. 716, per Munger, District Judge, that in an action by an interstate carrier for freight charges the shipper cannot set off a claim for injury to the goods, for the freight can be paid only in cash, and such set-offs would open the door to fraud and discrimination. If this is contrary to the usual application of |