Harvey v. Salisbury Auto Co. , 4 Pa. D. & C. 320 ( 1923 )

Berkey, P. J.,

— The plaintiff filed a statement in an action of assumpsit, alleging the defendant is indebted to the plaintiff for two barrels of oil sold and delivered to the defendant, in the sum of $51.50.

The defendant filed an aifidavit of defence, alleging that the plaintiff’s declaration shows him to have been doing business under an assumed or fictitious name, and that the plaintiff has not registered as required by the Act of June 28, 1917, P. L. 645, as amended by the Act of May 10, 1921, P. L. 465, wherefore, defendant prays plaintiff’s action may be dismissed.

The plaintiff’s statement is silent upon the matter of registration. Obedience to the law is always presumed until the contrary appears in the proofs upon the trial (Stein & Samson v. Slomkowski, 74 Pa. Superior Ct. 156, 159), but the defendant is entitled to defend upon the ground that no certificate had been filed as required by the statutes; however, this is an answer which alleges new matter, in addition to that contained in the plaintiff’s statement, as a cause of demurrer; in other words, it is what in common law pleading was called a speaking demurrer.

“A demurrer is never founded on matter collateral to the pleading which it opposes, but arises on the statement itself.” This case is ruled in Bovaird v. Barrett & Son, 78 Pa. Superior Ct. 68.

Decree. — July 12, 1923, motion to dismiss plaintiff’s action overruled, and the prothonotary is directed to enter the case on the trial list in accordance with the rule of court in such case made and provided.

From P. (5. Cober, Somerset, Pa.