
    Miller v. Keim.
    
      Practice, C. P. — Affidavit of defence — Statutory demurrer and averments of fact in same affidavit — Waiver of legal objections — Act of May 14, 1915.
    
    1. Under the Practice Act of May 14, 1915, P. L. 483, an affidavit of defence should not contain both a statutory demurrer and allegations of fact.
    2. When an affidavit of defence raises questions of law as to the form of the statement and also answers allegations of fact of the plaintiff, the defendant must be deemed to have waived the legal objections raised, and the case is at issue.
    Statutory demurrer. C. P. Bucks Co., Sept. T., 1920, No. 68.
    
      John L. DuBois, for plaintiff; Buckman & Buckman, for defendant.
    Dec. 13, 1921.
   Ryan, P. J.,

While the affidavit of defence is entitled “Affidavit of defence raising questions of law,” and in its first paragraph enumerates a great many legal objections to the statement of claim, in its second and third paragraphs it answers allegations of fact contained in the statement. It also sets forth in four more paragraphs a set-off and counter-claim, to which the plaintiff has replied. Section 4 of the Practice Act of May 14, 1915, P. L. 483, abolishes demurrers and provides in their stead, in section 20, the affidavit of defence raising questions of law, as follows: “Section 20. The defendant in the affidavit of defence may raise any question of law without answering the averments of fact in the statement of claim; and any question of law so raised may be set down for hearing and disposed of by the court. If, in the opinion of the court, the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such other order as may be just. If the court shall decide the question of law so raised against the defendant, he may file a supplemental affidavit of defence to the averments of fact of the statement within fifteen days.” The term “statutory demurrer” is generally accepted as a proper name for this pleading. It is clear that the act intends that it shall be a demurrer in fact, embracing only matters of law arising on the face of the statement of claim; hence the provision that “if the court shall decide the question of law as raised against the defendant, he may file a supplemental affidavit of defence to the averments of fact of the statement within fifteen days.” When the defendant in his affidavit of defence raises questions of law as well as fact, he departs from the practice outlined by the above section. When the questions of law raised relate, as here, to the form of the statement, and the defendant also answers the allegations of fact of the plaintiff, he must be deemed to have waived the legal objections raised. This case is at issue on the facts and will go' upon the list in regular order.

From Calvin S. Boyer, Doylestown, Pa.  