of this testimony, even if it was erroneous, because the jury were not allowed to consider this phase of the case. In conclusion, it seems to me that there is a great difference between the facts as set forth in Second National Bank of Pittsburgh v. Hoffman, 233 Pa., 390, and this case. It was there shown, not only by the testimony of the bank's cashier, but also by that of the maker and by the admission of the defendant, that the bank had no knowledge of the fraud, and under such circumstances it was held to be error to submit the bank's knowledge of fraud to the jury. In like manner, in the case of the First National Bank of Lock Haven v. Keath (March Term, 1913, No. 69), lately tried by us, I, for the same reasons, directed a verdict for the plaintiff. In this case, however, as I have said, the money was parted with before the note was secured by the bank, and, in addition, the whole of the plaintiff's case rested upon the uncorroborated testimony of the cashier, which brought out facts and circumstances that only a jury could determine. It seems to me that the case has been properly tried, that no serious error appears in the record of the trial, and that therefore the rule should be discharged. Rule discharged. Legal Miscellany. Gone, but Not Forgotten. In running down a proposition in wills, I found the following provision: "I give and bequeath the sum of $1,000.00 to the trustees of St. John's English Evangelical Lutheran Church of Philadelphia, in trust that they shall safely invest the same and apply so much of the interest or income arising therefrom as may be necessary to keep in perfect repair the burial lots and stones therein of my late husband, Charles B. Hoffner." It seems quite evident that some, at least, of this husband's good qualities were not forgotten.-The Docket. O. C. ADJUDICATIONS. By Judge SMITH. E. O. Lyte, city. Mary M. Young, Washington Boro. Benjamin M. Buckwalter, West Lampeter. Catharine Pankake, Manheim Twp. such payments as a set-off against the LANCASTER LAW REVIEW. plaintiff's right to recover his property VOL. XXXI.] FRIDAY, MAY 15, 1914. [No. 28 Superior Court. Lancaster Supply Co. v. Thornton, Lease of personal property-Replevin- In an action of replevin for goods leased under a contract, allowing the lessor to terminate the lease and resume possession on default in the payment of a weekly rental, an affidavit of defense is insufficient which avers that the defendant had paid to the plaintiff an overpayment on another lease greater in amount than the rent due on the goods replevined. An affidavit alleging a set-off must state the facts with the same particularity required of a plaintiff in his statement. If a payment is averred, it must state how and when the payment was made. A set-off is not a permissible defense in replevin. Appeal No. 174 of October Term, 1913, by the defendant, Lizzie Thornton, from judgment of C. P. of Lancaster Co., for the plaintiff, Howard Liveright, trading as Lancaster Supply Co., for want of a sufficient affidavit of defense in an action of replevin. (For opinion of the Court below, HASSLER, J., see 30 LAW REVIEW, 387.) The goods replevined had been bailed to the defendant at a weekly rental, which the plaintiff claimed was in default. The opinion of the Court below contained, inter alia, the following: "The plaintiff is entitled to recover possession of the brass bed, spring, thirteen and a half yards of linoleum and rug, and we enter judgment in his favor for them, for want of a sufficient affidavit of defense." [1] "It is also alleged that she made payments on another lease-a third one-to the plaintiff, in excess of the amount due on such lease. If these payments were made on the lease involved here and by mistake credited in another book, she should have so stated. She cannot use in this proceeding." [2] On appeal, the defendant assigned error [1-2] as above. B. F. Davis, for appellant. The affidavit alleged payment in full. It was not a matter of set-off. It was not a counter claim. It was a payment which should have been credited by the plaintiff on the lease in suit. The creditor cannot make an application of a payment that will work an injustice to the debtor. 3 Page on Contracts, secs. 1404, 2186. Drug Co. . Am. Surety Co., 47 Super., 403. "If no affirmative intention to make an application appears, the Court will apply such payments as justice dictates and as the parties would probably have intended." 3 Page on Contracts, sec. 1407. Lyon . Witters, 26 Atlantic, 588; ibid., 65 Vt., 396. The averments in the affidavit of defense are much more distinctly and fully set forth than they were in Lawrence v. Smedley, 6 W. N. C., 42. F. Lyman Windolph and John E. Snyder, for appellee. A judgment entered generally for an uncertain amount incapable of being rendered certain by mere calculation is interlocutory and no appeal lies from it. Lewis 7. Smith, 2 S. & R., 141. McClung v. Murphy, 2 Miles, 177. Sellers . Burk, 47 Pa., 344. Hall's Appeal, 56 Pa., 238. Snyder Rep., II. Flanigan, 6 Leg. & Ins. Riott v. Blackstone, 10 Super., 591. Trust Co. . Lee, 24 Super., 74. McManus' Appeal, 5 Super., 65. The affidavit of defense was not sufficiently specific. Hertz . Sidle, 20 Sup., 88. Stockley. Riebenach, 12 Sup., 169. 412. Greiner. Heisey, 19 LANC. LAW REV., 358. Moore . Fire Ins. Co., 196 Pa., 30. There is no possible theory of the case which can hide the fact that appellant's defense, as stated in her affidavits, was set-off, and set-off is not admissible in replevin. Hall's Safe Co. v. Walenk, 42 Sup., 576. National Cash Register Co. v. Cochran, 22 Sup., 582. Patch Mfg. Co. v. Killinger, 19 LANC. LAW REV., 101. April 20, 1914. Opinion by PORTER, J. This is an action of replevin for goods which had been delivered by the plaintiff to the defendant upon two distinct bailments, evidenced by two written agreements leasing the goods, one dated March 7th, 1905, and the other dated February 4th, 1909. The defendant filed an affidavit of defense, which the Court below held to be sufficient as to the goods delivered under the lease of March 7th, 1905, but insufficient as to the goods embraced by the lease of February 4th, 1909, and made absolute a rule for judgment against the defendant for the part of the goods delivered under the lastmentioned lease. The defendant appeals from that judgment. erty, and that the defendant wrongfully detained the same. The first affidavit of defense filed averred that the defendant had complied with the terms of the agreement and that the sums called for thereby had been paid either by her or her husband, but was wholly insufficient in that it failed to state how or when the same had been paid. The plaintiff then took a rule for judgment, and counsel for the defendant evidently recognized the defects in the first affidavit, and an attempt was made to cure them by filing a supplemental affidavit of defense. In this affidavit the defendant averred that she had paid the rentals to the plaintiff or his agents from February 13th, 1910, until December 12th, 1910, but so far as this averment was concerned it denied nothing not admitted by the plaintiff in his statement. Then followed certain averments as to the amount which the defendant had paid as rentals, upon other goods, under the agreement of March 7th, 1905, but there was no allegation that there has been any overpayment of rental under that particular agreement. The defendant then attempted to set up as a defense to the right of the plaintiff to retake the goods The Court having held the affidavit of delivered under the lease of February defense to be sufficient as to the goods 4th, 1909, an alleged overpayment by which were delivered under the first her for goods which had been delivered lease, we have here only to consider the under an entirely distinct bailment, havprovisions of the lease of February 4th, ing no connection whatever with either 1909, the averments of the statement of of the leases involved in this case. Her plaintiff with regard to the goods in- allegation upon this point is as follows: volved in that transaction, and the alle-"In another book of 1906, she is charged gations of the affidavit of defense with regard thereto. Under the provisions of the lease, the defendant covenanted to pay for the use of the goods a rental of one dollar per week, payable on Saturday of each week, and it was in the lease expressly covenanted that in case default be made in the payment of any weekly instalment of rental the lessor might at his pleasure terminate the lease and take possession of the goods. The statement averred that the defendant had made default in the payment of all the weekly instalments of rent which became due on the agreement from and after December 12th, 1910, that plaintiff had elected to rescind the lease and reclaim the prop with a china-closet for $40.00, and in the book in which the charge was madle shows that she paid the plaintiff's agent $62.50, or $22.50 more than the chinacloset amounted to. Said sums were paid from August 18th, 1906, to March 6th, 1909, inclusive." We are of opinion that this averment is wholly insufficient to show that the plaintiff was not entitled to take the goods delivered under the contract of February 4th, 1909, because of the failure of the defendant to pay the rentals which accrued on and after December 12th, 1910. The affidavit does not allege that this payment of $22.50 was made on account of the rentals in question, and that it could not 66 truthfully so allege is manifest, for the reason that most of the payment must have been made before the goods were delivered under the contract of February 4th, 1909, and more than twenty-one months before the instalments of rental in question became due. Even if this were a case in which the defendant was entitled to set off an overpayment by him on some entirely distinct transaction, this affidavit does not sufficiently aver the facts which would entitle her to the setoff. An affidavit alleging a set-off must state the facts with the same particularity required of a plaintiff in his statement. This affidavit, upon this point, simply states that in another book,' without stating what book or whose book," she is charged with a china-closet for $40.00, and in the book in which the charge was made shows that she paid the plaintiff's agent $62.50, or $22.50 more than the china-closet amounted to." This is not a distinct averment that she had made the payment of $62.50, but assuming it to be an averment of that bald fact in indefinite terms, it would still be insufficient, in that it does not state how and when the payment was made. This is clearly an attempt to set off an overpayment in another transaction, and in replevin set-off is not permissible: Hall Safe Co. v. Walenk, 42 Pa. Superior Ct., 576; National Cash Register Co. v. Cochran, 22 Pa. Superior Ct., 582. The judgment is affirmed. or that they testified falsely, or without the plaintiff showing that he did not know of this before the trial and could not have learned of it by the use of reasonable diligence. In such case evidence of an understanding between two witnesses not to testify to anything that would be injurious to the defendant shown that such agreement was acted on to the is not ground for a new trial unless it is injury of the plaintiff's case. Rule for a new trial. C. P. of Lan caster Co. December Term, 1912, No. 49. Wm. R. Brinton and Coyle & Keller, for plaintiff and rule. Amos Burkholder and John E. Malone, contra. March 26, 1914. Opinion by HASSLER, J. This was an action to recover damages for injuries sustained by the plaintiffs through an accident claimed to have been caused by the defendants' negligence. The testimony was conflicting, and the jury were fully justified in finding a verdict for the defendant. The first two reasons for a new trial, that the verdict is against the law and the evidence, are therefore without merit. The third reason is that the "plaintiffs aver and believe that the testimony of the four witnesses for the defendant who testified as to the accident was given by them in pursuance of a concerted understanding between them, or some of them, for the purpose of relieving the township from liability and themselves from blame." The depositions taken by the plaintiff in support of this reason fail to show that the facts stated in it are true. The only testimony is that of Albert H. Fleming and James Bellman. The former says that, shortly after the accident, Urias Demmy, one of the supervisors of the defendant township, said: "There are four of us and only one of them; if we all stick together they can't do a thing." The latter says that Urias Demmy said to him, "What does she (the plaintiff) want to do? She is alone and there were four of us." We could not find from this testimony, which was a true statement of the fact, that four of the eye-witnesses of the! The width of the traveled part of the accident would testify that it was not road was proven by those who had caused by the negligence of the township, measured it. The place where "the and only the plaintiff, to the contrary, other wagon" stood was also proven by that there was a concerted understanding other witnesses. There was no dispute between these four witnesses to relieve as to either of these matters, and as we the township from liability. Nor would have said, neither of them was very such an understanding be improper if material to the question at issue. If we they told the truth, and it is not even were satisfied that there was an improper hinted that they did not do so. But even understanding between Urias Demmy though it could be considered sufficient and the young man described by Mr. to show an understanding among them Baker, in which Urias Demmy was told for the purpose of defeating plaintiff's not to know or not to recollect anything claim, in order to avail themselves of it that would be injurious to the defendant, as a reason for a new trial, the plaintiffs we could not grant a new trial because must show that they did not know it be- of it, unless it was shown that Urias fore the trial, or could not have learned Demmy acted in pursuance of the underof it by the use of reasonable diligence. standing and agreement, and that some That they did know of reports that Urias injury thereby resulted to the plaintiff's Demmy had said it, is shown in their case. This has not been shown, but on cross-examination of him. He was asked the contrary it appears that Urias if he did not make such a statement in Demmy did know and did remember all the presence of a witness, and he denied that he was asked about the accident by it. The plaintiff did not produce that both counsel for the plaintiff and defendwitness to contradict him. Nor are we ant, except two unimportant and if not convinced that this evidence would have immaterial matters, about which we have produced a different result if it had been said there was no dispute, and which produced at the trial. had been proven by other witnesses. Under such circumstances we could not find that he acted upon any improper understanding or instructions, or that the plaintiff was injured. The fourth reason for a new trial is that “J. W. Baker, who was present in the Court House on the day of the trial, heard a young man, supposed to be Henry Fetter, one of the defendant's witnesses, say to Urias Demmy, one of the supervisors, and another of defendant's witnesses, shortly before the latter was called as a witness for the defense on the afternoon of the trial: 'Urey, if they ask you on cross-examination anything you don't understand or anything unfavorable to our cause, say you don't know.'" An examination of the testimony of Urias Demmy shows that in answer to only two questions, both unimportant, he answered that he didn't know or didn't recollect. On page 115, when asked the width of the traveled part of the road, he replied: "I guess about seven or ten feet; I don't know it. I didn't measure it"; and on page 116, when asked where the wagon stood which he said was taken away before the accident occurred, he replied, "I don't recollect where the other wagon stood." We must refuse a new trial, and discharge the rule to show cause why it should not be granted. McGallicher v. Kinports. Damages - Personal injury-Negligence In order to recover damages for a persona! injury, the plaintiff must show that the particular act of negligence complained of in the statement was the probable and proximate cause of the accident. acting directly, and necessarily sets in motion The proximate cause is the efficient cause other causes without the intervention of an independent agency. If the facts as to the cause of the injury are not disputed, the question of whether the negligence complained of is the probable or proximate cause of the accident becomes one of law for the court. There can be no recovery in an action for damages for personal injury where the statement avers the act of negligence to have been the failure to have the skid fastened on the |