20

Subject.

into

Page.

Where a husband, while acting as adsettlement ministrator of his wife's estate, ena partial tered whereby the estate was partitioned, of his he receiving a deed in fee simple for in lieu estate certain real curtesy, and before the settlement was finally consummated died, the not disturb this settlecourt will ment, as it will be presumed that his acceptance of the deed for the real estate was in full satisfaction of his curtesy, distribution of the wife's estate will be made directly to the children, and that his estate is not entitled to share in the distribution of the balance in the account of the wife's estate filled by the husband's executors. Where sult was brought against decedent in his lifetime and his death was made a matter of record by adopting the method of suggestion and substitution in force prior to the Act of 1909, without issuing a do not scire facias or having it indexed in the judgment docket, believe that it is possible to say the that the order of substitution made would court the by to index parties from filing a praecipe directing the Prothonotary the judgment docket the case after the substitution was made.... 13 Since the children of one

on

we

relieve

who was

adopted and died before the adopting parent, inherit as heirs, it certainly follows that the same right vests in the adopted child of a son who died intestate before his parents' death

A claim against a

659

and payable

a

DEVISEE.

See Wills; Descent and Distribution.

to will

421

156

See also Master; Evidence; Subpoena;
Return; Notice.

In a divorce proceeding, where the
testimony before the master is not
an official court steno-
taken by
grapher in accordance with a rule
of court a decree will be refused
without prejudice to the libellant to
have the testimony taken properly
and submitted to court..
Respondent in a

divorce proceeding the was served personally, but failed to The evidence before appear. master showed that respondent had deserted his wife while they were living at their summer home in New York. Immediately after the deserresidence, their tion, respondent returned to Pittsclosed burgh, changed the locks and ordered that his wife be not admitted. later been living there since.

The wife came to Pittsburgh and has

upon libelof the lant, but that they were the spontaneous acts growing out conduct of the husband, and justifled by the reports and her knowledge of the previous conduct of her husband.

Held, That while adultery is not of a defense to cruel and barbarous is a question it treatment. out of a whether the treatment of the respondent does not grow on her part but is cruel purpose rather the spontaneous act immediately connected with some act of the husband which causes his wife to lose her temper and act with violence. In such a situation, the husband should reform and thus avoid Divorce refused. violence. The evidence must support the libel in divorce

A divorce will be refused where per-
sonal service was had on respondent
within 15 days of return day, and
was ap-
no appearance having been entered
for respondent, a master
pointed and hearing held during
the subpoena
to which
the term
returnable

48

evidence shows that the libellant had not resided in the State of Pennsylvania for one year immediately prior to the filing of the libel in divorce, as provided by the Act of March 15, 1815, 6 Sm. L. 286.... 188 A divorce will be refused where the

respondent accepted service of the notice of the hearing before a master. Every step in a divorce proceeding must be adverse and the acceptance of service will be taken as evidence of collusion... Where a divorce is asked for on the ground of indignities to the person, the necessity of the withdrawal from the house and family of the respondent is one of the incidents of this charge, and where the testimony of libellant shows that she did not leave her husband but that he left her and there is no indication in her testimony that his conduct towards her was such as she felt would justify her leaving him, a divorce will be refused..

188

189

321

It is not good practice for libellant's attorney to serve notice of a master's hearing and such service will not be recognized.................. 321 Rule 99 of the Common Pleas Court of Allegheny County requiring that notice of a master's hearing in divorce "shall be served personally on the respondent, if he or she can be found, or if he or she cannot be found, by advertisement, etc.." means personal service within the State, and service of such notice personally on a respondent without the State is invalid.. The Act of April 26, 1905, P. L. 309, providing that where a cause of divorce shall arise while a husband and wife shall be resident in different counties proceedings in divorce may be instituted and prosecuted in either county, does not give jurisdiction to the Court of a county in which a respondent is residing at the time proceedings are instituted therein, when at the time the cause of divorce arose the parties were living together in another county, and the cause of divorce arose in the county of their common domicil, in which county the libellant, who is the husband, has continued to maintain a well established residence, and the respondent has not appeared in the proceedings....... 322 A divorce should be granted upon libellant's uncorroborated testimony when such testimony sustains the pleadings and proves facts alleged, and is or should be believed, but when the witness does not appear in Court but offers her proof by deposition, then the sufficiency of the case does not consist in the sufficiency of deposing facts, and

Page.

her deductions therefrom, but rather in her credibility..

In a divorce proceeding on the ground of cruel and barbarous treatment, the particular conduct and acts complained of all left physical marks or visible effects upon libellant's body and health. The entire absence of corroboration is a circumstance of suspicion that leaves her case in doubt, as unproven, and a divorce will be refused.. The Nevada Court being without jurisdiction of the defendant in the divorce proceeding, its decree had no extra-territorial effect whatever as to persons or property outside the State, so that the validity of the divorce could be raised by any party in interest and was not confined necessarily to the defendant in the decree

While it is the duty of the judge who hears the divorce case to read the testimony and pass upon that question himself, yet the fact that the master, who had the witnesses before him and who had an opportunity to judge of their credibility by their appearance and conduct upon the stand, finds in favor of one party on evidence that is contradictory, ought to have some weight in determining a controverted question of. fact

Where a libel in divorce makes proper allegations of indignities to the person as to render libellant's condition intolerable and life burdensome, thereby forcing her to withdraw from his home, but the testimony attempts to give as a reason for the divorce cruel and barbarous treatment, and is not clear or definite as to dates and other facts, and does not support the allegations in the libel, the divorce will be refused....

her

In a divorce proceeding, the Court has jurisdiction where the wife, being the libellant, was a former resident of this Commonwealth, and, after inter-marrying with the citizen of another State or foreign country, was compelled to abandon domicile elsewhere by reason of one or another cause of divorce, and had returned to this Commonwealth, provided actual or constructive notice had been given the nonresident husband, as required by the first section of the Act of June 20, 1893, P. L. 471..

A husband filed a libel in divorce in Allegheny County against his wife charging wliful and malicious desertion. It appeared that they had been married in Allegheny County and had later moved to Berks County, where his wife deserted his home and returned to live in Allegheny County, while he continued to live in Berks County and was a resident of that county at the time he filed the libel. Personal service was had upon the respondent and the case was referred to a master, who recommended a di

vorce.

329

329

401

421

484

501

Held, That as the "cause of divorce" arose in Berks County, the Court of Allegheny County had no jurisdiction and divorce refused.... 519 Under the Act of April 14, 1859, P. L. 641, where libellant sought to have a supposed or alleged marriage declared void, a decree will be refused where the testimony shows that libellant maintained meretricious relations with the respondent prior to the time of the alleged marriage, and that libellant married, so that there was no "innocent or injured" party within the meaning of the act.

549

The Act of March 21, 1905, P. L. 46, recognized vendee's rights in the Reserve Tract in case any of the street and lanes remained unopened for a continuous period of 30 years; and in order to convey a good and marketable title to any of the land affected, the provisions of this Act as to appointment of viewers, etc., must be complied with in order to convey the property free of lens and encumbrances

A sheriff's sale of land in 1898 on a judgment relating back to 1871 extinguishes a right of way to a telegraph and telephone company's easement for its poles and lines, which right of way was granted in 1891 by the owner whose land was subsequently sold

EJECTMENT.

See also Landlord and Tenant. Where rent was delinquent, a judgment in ejectment confessed on a warrant in the lease will not be opened on the ground that there was a dispute as to the amount of a credit to be allowed on the rent for certain wall papering...

A rule to open a confessed judgment in ejectment entered on a lease for condition broken will be made absolute where the testimony taken on the rule is of such a nature that the Court cannot say that it is of that overwhelming character against the contention of the defendant that the rule should be refused. Apparent differences in the writing of the lease are necessarily for the Jury

.....

In ejectment, plaintiff claimed

one

fifth of the real estate. It appeared that his father had by will given to his wife: "All my property and real estate, real, personal and mixed, with full power to sell and convey the same, or part of the same; and after the decease of my wife, I do will and bequeath to my son, John Romer, the sum of twohundred dollars extra. The residue

shall as aforesaid be divided among and between my children equally, share and share alike. The wife made a will.

Held, That the wife had no power to devise the estate, because what she took under her husband's will was not a fee, but an estate for life with power to convey and consume, and nothing more; nor was there a conversion, and plaintiff titled to judgment.

was en

Public

Proceedings to contest an election of school directors under the Act of May 18, 1911, P. L. 199, known as the School Code. do not differ in their legal requirements from a contest under the Act of May 19, 1874, P. L. 208, and a petition will be quashed on motion where there is no averment that either candidate did not have counted for him every vote cast by whatever designation his name appeared upon the ballot, nor that a contest or recount of the vote would change the result. Facts must be set forth so that the Court may decide whether any wrong has been done

In a contest over the election of one school director in a borough. There were two candidates. It appeared that the name of one of the candidates was spelled differently on the ballot. It was admitted that this candidate was one and the same

Page.

person. A commissioner rejected one vote, which marked with

was

an

X opposite the name of the candidate spelled in one way, which mark had been erased, and another X mark was the made opposite but whose name

same

candidate, was spelled in a different way on the same balot. If this ballot was counted, it would cause a tie vote.

Held, That the fact that the names of the candidate appeared on the same ballot, but spelled differently, did not make them rival candidates, being the same person, and the vote should be counted.... There is nothing in the Uniform Primary Law of July 12, 1913, P. L. 719, that requires the Secretary of the Commonwealth to give any advance information with regard to the support of for party choice President to a candidate for delegate to the National Party Convention, but there is nothing in the Act which prohibits him from calling the candidate's attention to the requirement of the Act on this subject Section 83 of the Criminal Code of the United States itself neither prevents nor purports to prohibit the freedom of speech or of the press. Its purpose is to guard elections from corruption, and the electorate from corrupting influences in arriving at their choice....

A verdict for defendant will not be disturbed in a suit for personal injuries where it appeared that plaintiff, accompanied by an employee of while walking defendants, to the back of the first floor of a building, in the dark, fell through an elevator shaft, the defendants being tenants of only the first and second floors, and the basement, and SO far as the evidence disclosed, they and their employees were the only persons in charge of the elevator, the question for the jury being whether the defendants used the elevator or whether it was used by one in possession of the third floor. 394

EMINENT DOMAIN.

See also Municipal Improvements; Street Railways; Injunctions; Bonds; Exceptions.

cor

126

Where the city in a condemnation proceeding of real estate for playgrounds gives notice that exceptions may be filed to its schedule within a stated time and no exceptions are filed, the Court will not consider errors that might have been rected had they been called to the attention of the viewers.. Supervisors of a township have no authority to require a corporation with the rights of eminent domain agree to furnish free gas for street lights as a condition precedent to the laying of a pipe line along the township roads, and a bill to restrain the company from tearing up its pipe line and discontinuing the service will be dismissed.. 150

to

EMPLOYEES.

See also Workmen's Compensation; Factory: Female Labor; Corporations; Contracts.

Under the provisions of the Third Section of the Act of July 25, 1913, P. L. 1024, where an establishment was necessarily shut down in consequence of the break down of an outside power plant, from which source such establishment obtained

See also Restraint of Trade; Injunction: Husband and Wife.

A wife filed a bill of complaint against her husband, asking that a receiver be appointed to take charge of her husband's real estate and that an injunction be issued to restrain her husband or his creditors from interfering with the property. This relief was sought under the Act of April 27, 1909, P. L. 182, as plaintiff's husband had failed to comply with an order of desertion court to pay a stated sum weekly for her support.

Held, That equity had no jurisdiction and the husband not having departed from the Commonwealth, there was a remedy at law to enforce the order made for her support

Where the evidence is such as to justify a jury in finding for either party, the right claimed is such a doubtful right that equity will not enjoin either party....

110

208

257

A bill filed by a member who had been expelled from an incorporated society to compel his reinstatement to membership will be dismissed, where it appears that while his suspension and expulsion was not in compliance with the by-laws, complainant's conduct had been bad, in that he had failed to do equity, and was precluded from relief by the equitable maxim that he who seeks equity must do equity... Where a proceeding in equity was instituted in 1903, wherein the plaintiff obtained a decree entitling him to receive from the defendants a certain number of shares of stock in a corporation, and after temporary certificates had been issued for these shares, and before the transaction could be adjusted, the defendants became insolvent, and left the country, and nothing was done until after the plaintiff died, the heirs were not estopped by laches, when nearly ten years after final decree, further steps were taken to have the shares issued. The bar of laches would not apply (1) there was no duty resting upon petitioners to procure permanent certificates in place of the temporary certificates if they did not desire to do so, (2) because their failure to do so did not harm plaintiff's estate... On an application for a preliminary injunction, a Court of Equity is not required to decide in limine all questions relating to the right to participate in an election... The power of a Court of Equity never should be exercised to enforce a mere legal right, where positive injury and loss will result to defendant and no appreciable benefit enure to plaintiff. Where a trustee improperly pays out money as income but which was in fact principal on the advice of counsel before the error was discovered, and it further appears that money was expended in support of those entitled to the principal, the Court ought in equity give credit to the trustee for these payments.... 482

this

331

385

451

The doctrine of balancing of equities should be applied, if that doctrine is ever applicable, where by granting an injunction the benefit to the plaintiff would be nothing at all and the loss to the defendant very great. The question as to the extent to which that principle is to be admitted in the Equity jurisprudence in this State is not discussed

The Act of May 28, 1913, P. L. 358, abolishing the rule in equity that the averments of a responsive answer must be overcome by the testimony of two witnesses, or of one witness sustained by corroborating circumstances equivalent to the testimony of another witness does not change the rule with reference to the weight of the evidence and the credibility of witnesses........ A bill for an accounting will be dismissed where plaintiff fails to prove a partnership, and relies as a defense on an alleged forgery of his name to a written agreement which stipulated different terms than those claimed under an alleged parol agreement as to the partnership; and where the Court finds as a fact that plaintiff's signature to an agreement, as well as to a receipt in full satisfaction of all claims, was genuine.

Where a borough granted a street railway a franchise and required a bond of $15,000 that a double tract would be built within a certain period, and the double track was not built, the franchise is forfeited, and a Court of Equity will sustain a demurrer to a bill to restrain the borough from declaring the franchise forfeited .....

.....

Equity will not enjoin a gas company from shutting off gas furnished a customer where it appears that the customer by connecting a small pipe with the service main sought to defraud the company by thus using gas for household purposes that had not passed through the meter, and the gas company is entitled to a decree for the value of the gas thus fraudulently taken and utilized by plaintiff.

ESCHEAT.

See also Real Estate; Banks. The Act of June 7, 1915, P. L. 878, relating to the escheat of deposits in banks or other property to the Commonwealth, applies to all banks within the State, including National banks

The Auditor General, under the provisions of the Act of June 7, 1915, P. L. 878, would not be justified in employing additional clerks and paying salaries for additional clerk hire out of the appropriation, whereby a deficiency would be created, but the duties imposed by the Escheat Act should be done along with the other duties of his office

The estate of a non-resident who died intestate and without issue, but is survived by a widow as well as collateral heirs does not escheat to the Commonwealth; and the fact that

649

675

687

700

799

819

92

253