On the hearing in the Orphans' Court, or at rangement between him and his mother. Again least, at the time of the hearing, she brought in the settlement of May 3, 1892, was made on the a personal claim of $200 and interest for money basis of the plaintiff's sworn answer to the proloaned to him. Franklin did not dispute this, the ceedings his mother had instituted. She having proceedings in the Orphans' Court were not been led to abandon those proceedings and to pressed to a conclusion, and amicab'e settlement amicably adjust and compromise the several matof all these matters was finally reached on May ters in dispute between them, it would be mani3, 1892, in which she was allowed credit for dower festly inequitable to permit him to set up his interest from April 1, 1885, to April 1, 1891. The mere forgetfulness as a ground for going bebalance found to be due her on this settlement hind the settlement, and forbid it to be opened was $206.56 which he paid. The plaintiff claims for all purpose. But, if this were permitted, it that when he filed his answer in the proceedings would follow, that in an action of replevin above referred to, and when he made this settle- where, stating it most broadly, the only issue ment he forgot that he had furnished his mother raised by the pleading was, whether arrears of with butter, milk, eggs, wood and other articles dower had accrued after the partition decree and equal in value to the dower interest for the two were unpaid at the time of the distress, the Court years beginning April 1, 1885, and that there was and jury would be called upon to try other isa subsequent agreement between them that these sues; namely, what arrears of dower or mesne articles should be considered as payment of the profit had accrued prior to the decree; was there interest for those two years. His counsel argues an agreement by which something besides money that, although he did not make payments which was taken in payment thereof; was there a miswere specifically applied to the instalments of take made in the settlement of May 3, 1892; what interest for the years 1892 and 1893, yet the fore- was due and unpaid the plaintiff's mother as her going facts show payment of all the arrears of share of her husband's personal estate-a matter dower that had accrued at the time of the dis- peculiarly within the jurisdiction of the Orphans' tress, and that under the ruling in Weber v. Court;-what did the plaintiff personally owe her Rorer, 151 Pa. 487, the evidence of them was ad- for borrowed money. The substantial objection missible for that purpose. to the admission of this evidence is not that the The point decided in Weber v. Rorer was that questions of fact raised would be numerous and in an action of replevin where the question un-complicated, nor, perhaps, that the setttlement der the pleadings was how much rent, if any, was made in May, 1892, was in every respect concluin arrear at the time of the distress, it was im- sive, but that it would not show that the interproper to reject evidence that overpayments were est distrained for was not due and unpaid. The made by the tenant in previous quarters, and to offers were in effect an attempt to set off against limit the proof to such payments only as were the dower interest for the years 1892 and 1893, made in the quarter for the rent of which the which had accrued under the decree in partition, distraint was made. That case is distinguisha cross demand growing out of an alleged misable from the present in several particulars. There take in an amicable settlement of the widow's the alleged overpayments were made on account claims against the plaintiff for money loaned to of rent reserved in the lease under which the tenhim personally, for money due from him as adant occupied the premises at the time of the distress. If the tenant had alleged overpayment of ministrator, and for money which he had volunrent reserved in the lease for a preceding term, tarily admitted under oath was due to her on acit is probable that a different conclusion would count of her dower for specific years prior to the The law is well have been reached. Here the alleged double partition of his father's estate. payment was made on account of the widow's settled in Pennsylvania that in replevin growing dower accruing prior to the time when the prem-out of a distress for rent or arrears of dower set ises were accepted by the plaintiff, and indeed off is inadmissible in the sense in which that prior to the institution of the partition proceed-term is commonly used. Furthermore, settleings. No pretence is made that at the settlement ments of family disputes are favored in law and of May 3, 1892, there was any thought in the minds of the parties that the plaintiff was anti- in equity, and we are of opinion that the Court cipating the payments of interest which would correctly held that the adjustment of the several accrue under the decree or was paying generally matters in dispute made by the plaintiff with his upon that account. The credits allowed were mother was so far conclusive that it could not be for specific years prior to the decree, and as to re-opened in this case. those years, according to the plaintiff's allega Judgment affirmed. tion, there was a special and independent ar W. C. S. Nov. '96, 72. October 12, 1896. tiff $5537.20; that he accepted plaintiff's orders to the amount of $915 as follows: Lumber, $300; mill work, $250; stairs, $102; iron, $103; additional mill work, $160; making in all $6452.20. Superior Court. Close v. Hancock. Affidavit of defence-Snpplemental, when allowed to be filed in a reasonable time-Particularity required-Set-off, how to be alleged-Practice. Where a rule for judgment for want of sufficient affidavit of defence has been argued and leave granted to file a supplemental, if it be not filed within a reasonable time the Court may, without a new rule or further notice to the defendant, finally dispose of the application for judgment. A deduction or set-off, in order to be of any avail in an affidavit of defence, must be stated with precision and exactness as to the amount, and no doubt must be left as to its source and character. Where a defendant sets up a breach of an independent contract as an off-set, he must not only attach to the affidavit of defence a copy of the contract, if it be in writing, and allege a breach and the amount of damages, but also specify with precision in what the breach consists. "That he is advised, believes and will prove on the trial of this case that it will take $910 more to complete the houses under the contract which has been abandoned by the plaintiff. That the above sums exceed by $460 the contract price for the houses to be built and completed by the plaintiff. "That by the terms of the said contract plaintiff was to complete it on the twenty-ninth day of June, 1895, and pay $3 per day as liquidated damages, that it is still uncompleted and under the above clause the plaintiff is now, March 5, 1896, indebted to the defendant in the sum of $750 additional by reason of his failure to perform said contract for 250 days." Appeal of George W. Hancock, defendant, "That to the above affidavit the contract of from the judgment of the Common Pleas No. 2, the plaintiff was attached, setting forth that the of Philadelphia County, in an action of assump-contract price was $6900, that the work was to be sit, brought by Henry Close. completed prior to June 29, 1895, providing for a This case began before a magistrate, from penalty and fixing the payment of the sums of whose judgment an appeal was taken to the Com- money to the defendant thereon.” mon Pleas. In that Court, the plaintiff filed a statement claiming to recover $76.69 for the erection of a carriage house. The defendant filed the following affidavit of defence: A second argument was had and on March 21, 1896, leave to file a second supplementary affidavit was given. On March 28, such affidavit not having been filed, the Court entered judgment for plaintiff. On April 6, 1896, a second supplemental affidavit was filed and on April 17, 1896, "The plaintiff charged defendant for more material than he used in building an addition to defendant's stable by 33 per cent. of the whole the defendant took this appeal and assigned eramount furnished. ror as follows: 1. The Court erred in entering judgment for want of a sufficient affidavit of defence. "That the defendant was notified by the various furnishers of material not to pay the plaintiff, as he had not paid them. That by reason of plain2. The Court erred in entering judgment tiff's default in building a row of houses, under contract dated March 30, 1895, for the defendant, against the defendant, after having given defenand his failure to pay the mechanics and material dant leave to file a supplemental affidavit of defence, without counsel or defendant being given men, and his failure to build two kitchens acnotice of such application. cording to law, by reason of the provision for damages, contained in the contract for failure to complete the same, the plaintiff is indebted to the defendant to the extent of more than $1500, which this defendant seeks to recover against the plaintiff by way of set-off, and shall ask for a certificate thereof at the trial of the case." A rule for judgment was taken, and after hearing the Court, on March 2, 1896, allowed a supplemental affidavit, which was filed as follows: "George W. Hancock, being duly affirmed according to law, says as a further defence to the suit in this case, that he entered into a contract with the plaintiff, a copy of which is hereto attached, on March 30, 1895. Henry J. Hancock, for appellant. The rules of Court require forty-eight hours' notice of a motion for judgment. Here the record shows that nothing was done from March 2, 1896, when the supplemental affidavit was ordered, until March 28, 1896, when judgment was taken. The affidavit was sufficient. Bank v. Oil Works, 175 Pa. 580. 1. First affidavit.-This affidavit refers vaguely "That the said plaintiff did not complete said contract or comply with the terms thereof as to two defences. (a) It is alleged that plaintiff follows: That this affiant paid cash to the plain-charged in his statement for 33 per cent. more material than he used, without specifying any supplemental affidavit within a reasonable time items of overcharge, clearly an insufficient alle- after leave was granted. Failing to do so, the gation. Court was perfectly justified in finally disposing of the rule and entering judgment. Jenkinson v. Hilands, 146 Pa. 380. Griel v. Buckius, 114 Id. 187. In his first and second affidavits the defendThat the defendant was notified by the various ant sets up as an off-set to the plaintiff's demand furnishers of material not to pay the plaintiff, a cross demand for damages growing out of the as he had not paid them-an allegation which plaintiff's breach of a contract to build a block amounts to nothing, as defendant does not allege of houses for the defendant. He alleges in genthat he, defendant, was liable to those who fur-eral terms that the plaintiff abandoned the connished materials, or that his property was liable tract before completion, and that it would cost to lien. (b) The affidavit then alleges a set-off on at least $910 to complete the houses according to a breach by plaintiff of a certain building con- the contract; also that he is entitled to the additract. Defendant does not set forth a copy of tional sum of $750 as liquidated damages under a the contract, or give any of the particulars of the provision of the contract that the plaintiff should breach. Such an affidavit is insufficient. Louchheim v. Becker, 3 WEEKLY NOTES, 449. 2. Supplemental affidavit.-The supplemental affidavit makes no mention of the first defence alleged in the first affidavit, but continues its reference to the set-off alleged as to the second de fence. It alleges that defendant paid to plaintiff certain sums, accepted certain orders, and that it will cost certain additional sums to finish the houses mentioned in the contract. Defendant fails to give a single date of any payment, does not give the date of any of the orders, or the name of any of the drawees, and does not set forth how the sum of $910 is made up, which is the amount defendant alleges it will cost to finish the houses. An affidavit setting up a separate and independent contract as a set-off must be essentially a statement of claim against the plaintiff, and be more specific than an ordinary affidavit of de fence. Markley v. Stevens, 89 Pa. 279. pay $3 for each day that the houses remained uncompleted after June 29, 1895. Affidavits of defence are uniformly construed most strongly against the defendant, for it is reasonable to suppose that he will state his case as favorably for himself as the facts will permit. A deduction or set-off, alleged in an affidavit of de fence, must, in order to be of any avail, be stated with precision and exactness as to the amount, and the Court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff's claim: Endlich on Affidavits of Defence, 510. There is an additional reason, which is that the plaintiff is entitled to know with reasonable certainty what he will be compelled to meet on the trial of the case. While an affidavit of defence need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defence so that the plaintiff may know, with some degree of certainty, what will be interposed to defeat his claim: McCracken v. First Ref'd Congregation, 111 Pa. Louchheim v. Becker, 3 WEEKLY NOTES, 449. 106. Since the Act of May 25, 1887, the completeJanuary 18, 1897. RICE, P. J. The defendant's ness and accuracy required in the plaintiff's stateaffidavit of defence was filed on February 20. It ment and the defendant's affidavit are substantiwas clearly insufficient and a rule was entered for ally the same: Fritz v. Hathaway, 135 Pa. 274. judgment. On March 2 the defendant was grant- As our brother SMITH well said in Hutton v. ed leave to file a supplemental affidavit, which McLaughlin, 1 Pa. Superior Ct. 642: "And one he did on March 6. It is stated in the paper evident purpose of that statute is to secure full books-although the record does not show it- and concise statements of the material facts rethat at the argument, after this affidavit had been lied upon, so that each party may know with reafiled, the Court deemed it defective, and granted sonable certainty the character and nature of the the defendant leave to file a second supplemental other's claim and contention relative to the subaffidavit. It is stated that this leave was granted ject matter of the controversy." See also Markon March 21. On the following Saturday, (March 28), the second supplemental affidavit not hav-ley v. Stevens, 89 Pa. 279; Louchheim v. Becker, ing been filed, the Court entered judgment. We 3 WEEKLY NOTES, 449: McBrier v. Marshall, 126 Pa. 390; Bakes v. Reese, 150 Pa. 44; Terrisee no error in this. The original rule was pending and had not been argued. It was not necesberry v. Broude, 173 Pa. 48. Where a defendant sary to enter a new rule, nor to give further no- sets up a breach of an independent contract as tice: Com. v. Snyder, 1 Pa. Superior Ct. 286. an off-set, he should not only attach a copy of It was the defendant's duty to file his second the contract, if it be in writing, and allege a breach and the amount of damages, but should recting the executor to file an account on or bealso specify with precision in what the breach fore February 3, 1896. David Starr took this appeal. James Ryon and George W. Ryon, for appellant George M. Roads, for appellee, moved to quash the appeal, and cited— Palethorp's Estate, 160 Pa. 316. consists. The affidavits before us are defective in this latter particular; they do not show when the plaintiff abandoned work on the contract nor in what particular it remained unperformed. They are also defective in not stating the dates of the payments referred to therein. The plaintiff was entitled to a specific statement of the particulars in which the defendant claimed the houses to be January 18, 1897. RICE, P. J. "It would inuncompleted; for without it, he would be com volve intolerable mischief if any intermeddler pelled to come to trial prepared to prove that could compel an executor to file an account of every door was hung and every nai! was driven. his trust whenever demanded. Hence, the proper The enforcement of these plain rules imposes no practice is, where a person who is not a creditor hardship on the defendant. The Court gave him obtains a citation, to answer it, denying that the full opportunity to cure the obvious defects in petitioner is a creditor. This at once challenges his affidavits, and he cannot now complain if his position as such, and unless he can make out they are scrutinized with somewhat greater strict-a prima facie claim, it is the duty of the Court to ness than if he had not been afforded such oppor- dismiss his petition": Lightner's Estate, 144 Pa. tunity. Failing to file a second supplemental af- 273. It may be conceded for present purposes fidavit within a reasonable time, the Court had a that the Court might properly have pursued the right to presume that he either could not or did course above indicated in the present case; but not wish to be more specific. it does not follow that its action in awarding the We have examined all of the cases cited by the citation, without requiring the petitioner to defendant, and find nothing in them to conflict prove affirmatively that she had not received the with the foregoing conclusions. The judgment is affirmed. Nov. '96, 27. H. B. specific articles willed to her, is reviewable. The petition alleged that the petitioner was a legatee, and gave the Court jurisdiction to compel the respondent to file an account. The answer did December 8, 1896. not deny that the petitioner was a legatee, but Superior Court. ·Orphans' Court-Appeal from—Jurisdiction of appellate Court-Definitive decree necessary. A decree of the Orphans' Court citing an executor to account is not a "definitive sentence or decree," as required for an appeal by the Act of March 29, 1832, sec. 59, P. L. 213, but an interlocutory decree from which no appeal lies. Appeal of David Starr, surviving executor and legatee, from the decree of the Orphans' Court of Schuylkill County, awarding a citation to him to file an account upon petition of Margaret L. Tobias. set up a defence to her claim, namely, that she had received her legacy. If the Court had heard the testimony on that question of fact and had 'ecided it erroneously, and awarded the citation, still there would be no appeal, because it would not have been a definitive decree. The same is true where the Court refuses to go into the evidence upon the questions of fact raised by the answer, until after the account has been filed. The appellate Court cannot take jurisdiction until a "definitive sentence or decree" has been entered: Act of March 29, 1832, sect. 59, P. L. 213. It is well settled that a decree of the Orphans' Court, citing an executor to file an account, is an interlocutory decree from which no appeal lies: Palethorp's Estate, 160 Pa. 316. Concerning this question, Chief Justice GIBSON said: "It would be oppressive to drag a suitor here on Margaret L. Tobias, alleging herself to be a every intermediate order, to be delayed a year legatee under the will of Peter Starr, deceased, before he could take another step A suit in the obtained a citation upon David Starr, executor Orphans' Court would be the business of a lifeof the said Peter, to file an account. time, and the appellate Court be burdened with David Starr filed an answer to the petition, much unnecessary litigation": Eckfeldt's Appeal, in which he claimed that he was not bound to file 13 Pa. 171. It is unnecessary to refer to the an account, because the specific articles of prop-numerous analogous cases, since these are directerty bequeathed her have been delivered to her ly upon the point. It follows that the appeal was by the executor. prematurely taken. Appeal quashed. The facts of this appeal are set forth in the decree of the Court, (LYON, P. J.), as follows: The Court, after hearing, made an order di W. C. S. WEEKLY NOTES OF CASES VOL. XXXIX.] FRIDAY, FEB. 19, 1897. [No. 22 Supreme Court. Oct. '95, 177. Supreme Court. October 26, 1896. Hays v. Hays. Equity-Mortgages - Allegations of fraud as to Bill to declare mortgage void on grounds of fraud-Donees as volunteers—Rights of—Estoppel. A mere volunteer taking a gift is bound by the terms imposed by the donor. It cannot be held to be a fraud, that the donee was induced to sign a paper, even ignorantly, if the effect of the paper is simply to carry out the intention of the donor known to the donee, and a refusal to sign it would have resulted in a failure of the gift altogether. A. conveyed a piece of property to his wife, through a third party, and at the same time had her execute a mortgage of the property, which was assigned to him in trust for his son H. Subsequently the wife filed a bill in equity to have the mortgage declared null and void, alleging that she had been induced to execute the mortgage by deception and fraud. It appeared that it was clearly understood by all the parties to the transaction that the wife was to have the property for life only, and then it was to go to H.: Held, that the execution of the mortgage was only a method to secure the intention of A., and that the wife being a volunteer could not object to any method which the donor might prefer. There can be no estoppel, where the person against whom it is set up has not a full knowledge of his rights in the subject matter. The wife of A. claimed that in the settlement of certain divorce proceedings between herself and her husband, it had been agreed that she should hold a property free of all encumbrance, and in return she had relinquished her rights in other property of her husband. She averred that H. was a party to this agreement, but the evidence in support of this averment, showed that the mortgage was not expressly mentioned, and there was no evidence that H. understood that his rights were jeopardized: gage, upon premises on Chatham street, Pittsburgh, be declared fraudulent, null and void, and that the same be delivered up for cancellation; and also that complainant be decreed to be the owner of said property. Held, that the gift from A. to his son, though a voluntary gift, was an executed one, of which the son could not be divested, except by estoppel or his own consent: Held, further, that there was not sufficient evidence to sustain estoppel. While the proceedings were pending, the death of Adda L. Hays was suggested, and her devisees Kate Cochran and Rilla Cochran were substituted as parties complainant. The facts of this case were as follows: On or about December 15, 1877, A. C. Hays, one of the defendants, being the owner, inter alia, of a lot on Chatham street, Pittsburgh, conveyed the same with other property to J. H. White, his attorney, Adda L. Hays, his wife, joining in said conveyance. White thereupon executed a conveyance to Adda L. Hays, and she and her husband, A. C. Hays, executed a mortgage to White, who afterwards assigned said mortgage to A. C. Hays in trust for Harry J Hays, who was his only child by a former marriage. This bill was filed by Mrs. Hays, she having been in the meantime divorced from her husband, for the purpose of having the mortgage above referred to declared fraudulent and void, and the title to the Chatham street property to be in her in fee simple discharged of the lien of said mortgage, and for a decree of cancellation thereof. There was no dispute about the fact of conveyance to Mrs. Hays, nor of the execution of the mortgage in question. This mortgage, which was in the custody of A. C. Hays, his son being a mere boy at the time it was executed, was not put upon the record until May 16, 1892, when Harry J. Hays having obtained possession of it, recorded it and procured a scire facias to be issued thereon. When the case came up for trial it appeared from the testimony of the defendant, Mrs. Hays, and also from the testimony of A. C. Hays, that it was not the intention that she should be disturbed in the possession of the Chatham street property during her life, and A. C. Hays having testified distinctly that he had promised that the mortgage should not be foreclosed during the life of his wife, the foreclosure proceedings were discontinued by leave of the Court. Thereupon Mrs. Hays filed this bill. Mrs. Hays alleged that the mortgage given by her and her husband to J. H. White was fraudulent and void; and that at the time the transaction referred to took place, she supposed that Appeal of A. C. Hays and Henry J. Hays, de- a deed of trust was being executed by which she fendants, from the decree of the Common Pleas was to hold the Chatham street property for life, No. 3, of Allegheny County, granting relief as and at her death it was to go to Mr. Hays' son prayed for in a bill in equity filed by Adda L. Harry. It appears that difficulties subsequently Hays, now Adda L. Cochran, against A. C. Hays sprang up between Mr. and Mrs. Hays, which and Harry J. Hays, praying that a certain mort-resulted in a great deal of litigation and convey |