
    Commonwealth ex rel. French v. Foley, Appellant.
    
      Practice, O. P. — Justices of the peace — Appeals—Actions for penalties — Wrongful detention of milk cans — Act of May k, 1889, P. L. 8k — Insufficient statement.
    
    The Practice Act of 1915 does not apply to appeals from justices of the peace or aldermen, and on such an appeal, in an action for a penalty, the defendant is not required to file an affidavit of defense.
    In an action for a penalty under the Act of May 4, 1889, P. L. 84, to prevent and punish the wrongful use of milk caps, the plaintiff’s statement is insufficient, when it does not aver that the milk cans, alleged to have been used by the defendant, were stamped with the name and residence of the owner, and were wilfully used by the defendant without permission of the owner.
    Argued March 2, 1920.
    Appeal, No. 1, March T., 1920, by defendant, from judgment of O. P. Lackawanna County, Oct. T., 1918, No. 879, in favor of plaintiff for want of a sufficient affidavit of defense in the case of Commonwealth of Pennsylvania ex rel. R. L. French v. A. L. Foley.
    Before Poster, Henderson, Head, Trexler, Keller and Linn, JJ.
    Reversed.
    Assumpsit for penalty for illegal use of milk cans of another under Act of May 4, 1889, P. L. 84. Before O’Neill, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.
    The court made absolute the rule for judgment for want of a sufficient affidavit of defense.
    
      Error assigned was the order of the court.
    
      A. A. Vosburg, for appellant.
    An affidavit of defense is not required in an action for a penalty, and no judgment can be entered for want of a sufficient affidavit of defense: Osborn v. Bank, 154 Pa. 134; Glass Co. v. Bank, 10 Co. Ct. 565; Moyer v. R. R. Co., 19 Co. Ct. 383; Bartoe v. Guckert, 158 Pa. 124; Hutchinson v. Woodwell, 107 Pa. 509; Barr v. Duncan, 76 Pa. 395.
    
      W. W. Watson, for appellee.
    April 24, 1920:
   Opinion by

Keller, J.,

This appeal must be sustained. We have held in the case of Maiorana v. Sacchetti, 73 Pa. Superior Ct. 510, that the Practice Act of 1915, (P. L. 483), does not apply to appeals from a justice of the peace or alderman. Under prior practice acts an affidavit of defense was not required in an action for a penalty: Osborn v. First National Bank, 154 Pa. 134; and judgment for want of a sufficient affidavit of defense could not be entered in such an action, even if an affidavit of defense was filed: Bartoe v. Guckert, 158 Pa. 124. Furthermore, the plaintiff’s statement is not self-sustaining and will not support a judgment for want of a sufficient affidavit of defense: Rosenblum v. Stolzenberg, 36 Pa. Superior Ct. 644. The action was based on an alleged violation of the Act of May 4, 1889, P. L. 84, to prevent and punish the wrongful use or detention or misappropriation of milk cans, etc. The act forbids any person from wilfully detaining for his own use or having in his possession without the consent of the owner any milk can, etc., belonging to another and having the name and residence of the owner stamped thereon. The fifth section provides that any person having in his possession any milk can, belonging to another, without the permission of the owner to use the same, “in violation of the preceding sections of this act,” shall forfeit and pay the sum of ten dollars for each article so held and used, etc. The plaintiff’s statement failed to aver that the milk cans alleged to have been used by the defendant were stamped with the name and residence of the owner and were wilfully used by the defendant without the permission of the owner.

The assignment of error is sustained and the judgment of the court below is reversed, with a procedendo.  