The opinion
Concurring Opinion by
Mr. Justice Frazer:
In this case, an action in trespass, I agree that the lower court should be affirmed. I am, however, not in accord with the majority opinion in holding this court is vested with authority under the provisions of the Act of June 16, 1836, P. L. 786, to prescribe, for the several courts of common pleas, rules and forms of writs for carrying into effect legislation generally and especially the Act of April 10, 1929, P. L. 479. I think section 3 of the Act of 1836 relied upon in the majority opinion is inapplicable to the present case and confers no such au
*575
thority upon this court, especially in view of section 21 of that act which gives to courts of common pleas “full power and authority to establish such rules for regulating the practice thereof respectively, and for expediting the determination of suits, causes and proceedings therein, as in their discretion they shall judge necessary and proper.” Subsequent legislation preserves to courts of common pleas power to prescribe rules for practice and procedure, as indicated in the following late acts of assembly. The Act of May 14, 1915, P. L. 4S3, is entitled “an act relating to practice in the courts of common pleas in actions of assumpsit and trespass, except actions for libel and slander; prescribing the pleadings and procedure to be observed therein, and giving courts power to enforce its provisions.” That act, by its terms a “Practice Act,” is certainly sufficiently definite to cover this case and also in express terms repeals inconsistent legislation; further, the Act of May 24, 1878, P. L. 135, provides that courts of common pleas “shall have full power to make all necessary rules and regulations for the transaction of all business brought before them.”
In view of the above legislation and the power vested in the common pleas, I would confine the opinion in this case to an affirmance of the court below, and eliminate all reference to the form of the sci. fa. and proceedings to be had under the Act of 1929, leaving the practice and procedure in cases of this character to the courts of common pleas where they properly belong. If the third section of the Act of 1836 ever did apply to questions similar to those now before us, which in my opinion is extremely doubtful, it has been superseded by more recent legislation.