
    White v. Aka or Arka.
    No. 2.
    
      Practice — Question of law raised by affidavit.
    
    1. After a question of law raised by an affidavit of defence has been decided in, favor of the defendant on the ground that the statement set forth no. cause of action, the plaintiff cannot file another statement without leave of court and proceed with the original suit under a different state of facts. Such second statement will, on motion, be stricken from the record.
    2. The former decision having been without prejudice, the plaintiff can bring a new suit.
    Rule to strike off statement filed May 23, 1922. C. P. Lancaster Co., Nov. T., 1921, No. 8.
    
      John E. Malone, for rule; B. F. Davis, contra.
    June 24, 1922.
   Landis, P. J.,

On Oct. 8, 1921, the plaintiff issued a summons in assumpsit against the defendant, alleging that the defendant had employed the plaintiff on or about May 8, 1906, as his housekeeper, and that, after a short period of service, she had left his employment; that thereupon he induced her to come back upon the promise that he would by will leave her all his real and personal property. In accordance with this agreement, he, on Jan. 25, 1908, made his will, giving her all his estate and appointing her sole executrix, and this will was given to her and is still in her custody, unrevoked, as far as was shown by the record. He subsequently discharged her, and a claim was made by her for $3540 on a quantum meruit. As the statement alleged no breach nor repudiation of the original contract, we concluded that she could not recover under it, and decided the question of law raised by the defendant in his favor. [See ante, page 574.] This was an end of the case, so far as that action was concerned.

But counsel for the plaintiff, after this decision had been rendered, on May 23, 1922, filed a new statement without leave of court. He now proposes to proceed with his original suit under a different state of facts, notwithstanding that the case has been decided against his client. This we think he cannot do. The decision of the court ended the former suit, as it was there ascertained that the plaintiff had, under her statement, no cause of action. This entry having, however, been made without prejudice, if she pays all costs and brings another action, and then alleges and proves a breach of the contract, I think she can recover the damages which it is found she has sustained. The present procedure is irregular and improper, and it is now ordered that the last statement shall be stricken from the record.

Statement filed May 23, 1922, is stricken from the record.

From Georg© Ross Eshleman, Lancaster, Pa.  