Heineman's Petition. case where the wife deserted the husband or drove him out of the house, and the fault was wholly on her side. We are of opinion that the Act was not intended to have that meaning. The Act is made in favor of the wife and against the husband, and must be understood to apply only where the separation is the fault of the husband. The second reason why the petition must be dismissed is that even if the Act be taken in its literal sense there was not a failure on the part of the husband to contribute to his wife's support for one year, but within the year he offered to contribute. If the Act is to be taken literally with the interpretation in favor of the wife, it is to be taken equally so in favor of the husband. The third reason is that we are of opinion that the Act cannot be deemed retroactive and, having been passed within one year of the separation complained of, advantage could not be taken of it for one year thereafter. The words of the Act are, "where a man and wife live separate and apart for one year or more." There is nothing in the Act to require it to be interpreted to take effect retroactively, and where property rights are involved the presumption is that an act is not so intended. The petition is therefore dismissed. Maize vs. Maize. Divorce Voluntary Separation for Stated Period-Desertion. Where a husband and wife agree to a temporary separation of a year for the very best of reasons and absolutely necessary under the circumstances, it is not necessary for the wife, after the lapse of a year, to make her way to the place where the husband is living to demand support from her husband; and, after the statutory period has elapsed, the wife will be granted a divorce on the ground of desertion. In Divorce. Sur Master's Report and Exceptions Thereto Ex Parte Libellant. No. 2096 April Term, 1915. C. P. Allegheny County. Weil & Thorp, for libellant. John G. Harmon and Charles H. Kline, for respondent. SHAFER, P. J., March 23, 1916.-The Master has made full findings of fact in this case, and they seem to be supported by the evidence and, in fact, are not controverted by the parties. The only question in the case is: What view is to be taken of the legal effect of the facts as found by the Master and shown by the evidence? The Master has expressed the opinion that these facts do not constitute a wilful desertion on the part of the husband, but on the contrary show a separation by mutual agreement. and has therefore recommended that the libel be dismissed; to which the libellant has excepted. The evidence shows, and it is found by the Master, that the respondent treated his wife very badly, principally on account of his hard drinking, during the most of their married life, and gave her very little support. In fact, it might be a question whether this treatment did not constitute a ground of divorce itself, considering the social standing of the parties, who are educated people; and this is claimed by the libellant to amount to a constructive desertion on his part. We are of opinion, however, that it is not necessary to pass upon this matter as, according to our view of the case, there was an actual desertion. In the winter of 1913 the respondent drank so much that he was affected with delirium tremens and had to remain in the hospital for a considerable time, and was not a fit person for his wife to live with. The libellant tes Maize vs. Maize. tified that she "told Mr. Maize that as his traveling position was so indefinite and he had promise of a permanent position within about a year, I thought it would be wiser for me to remain with my parents until he stopped drinking," and that he agreed that that was right and promised to stop drinking and to send her money. She thereupon remained with her children at the house of her parents, where she still is. Some occasional correspondence took place between the parties up until April, 1914, after which no communication passed between them. In June, 1914, he left this county and went to Bloomsburg, where he had formerly lived, to the house of his parents. After that time he never contributed anything to the support of his wife and children, never furnished any home, never, came to see his wife and children, and did not stop drinking. We are of opinion that after a temporary separation such as this, agreed to by the parties for the very best of reasons and absolutely necessary under the circumstances, it was not necessary for the wife, after the lapse of the year which they had spoken of, to make her way to Bloomsburg to demand support from her husband. If the law is as contended for by respondent, all that a man who proposes to desert his wife would need to do would be to get her to agree to go away from the house for a few days or months, and then never come back. We are, therefore, of opinion that the exceptions must be sustained and that the libellant is entitled to a divorce for wilful and malicious desertion. Let a decree be drawn accordingly. In re State Taxes. A Scire Facias to Revive Judgment-Nature of Writ-Act of 4pril 6, 1830. A scire facias to revive and continue the lien of a judgment is not an original writ within the meaning of the Act of April 6, 1830, and is not taxable for State purposes. Some time ago you requested an opinion of this Department as to whether a scire facias to revive and continue the lien of a judgment is taxable for State purposes. Section 3 of the Act of April 6, 1830, provides that— shall demand and receive on every original writ issued out of said courts * the sum of fifty cents." The words "original writ" used in this Act of Assembly do not refer to what was known as an "original writ" at common law, and, as described by Blackstone, which was the mandatory writ issued in the King's name necessary to give the courts jurisdiction. 3 Blackstone's Commentaries, 271. It is rather used in the sense of being the first writ or process to compel the appearance or bring the party into Court. Just what is an original writ in this latter sense is not always easy of definition. In re State Taxes. "An 'original writ' means the first process or initiatory step taken in prosecuting a suit. It issues on the application of a party. In England this writ is the praecipe." Welsh vs. Haswell, 11 Vt., 85, 88. In the case of Hollister vs. United States, 145 Federal, 773, 779, it is held: "A writ of scire facias on a forfeited recognizance is a judicial writ founded upon and to be proved by the record of the Court taking it. Decisions of State courts are numerous and conflicting as to whether it is the commencement of a civil action or a continuation of some other original proceeding, whether it performs the function of a writ only, or those of a writ and declaration, and whether the defendant may plead to the writ or whether the plea goes to the record on which it is founded. But, as the decisions of the Supreme Court of the United States are clear and controlling on these questions, the long list of State cases to which our attention is called need not be considered for the purpose of extracting a rule for our government. In Winder vs. Caldwell, 14 How., 434, 14 L. Ed. 487, it is said: 'A scire facias is a judicial writ used to enforce the execution of some matter of record on which it is usually founded; but, though a judicial writ, or writ of execution, it is so far an original that the defendant may plead to it. As it discloses the facts on which it is founded, and requires an answer from the defendant, it is in the nature of a declaration, and the plea is properly to the writ.' ་ In United States vs. Payne, 147 U. S., 687, 37 L. Ed. 332, it is said: 'While a scire facias to revive a judgment is merely a continuation of the original suit, a scire facias upon a recognizance * * * it is as much an original cause as an action of debt upon a recognizance, or a bill in equity to annul a patent.'" This last citation draws the distinction between the scire facias to revive a judgment and other kinds of writs of scire facias. When a judgment has been secured the parties are in Court, and the scire facias does not bring them into Court anew. Its purpose is simply to revive and continue the lien of the judgment already obtained. I am, therefore, of opinion that such a scire facias is not an original writ within the meaning of the Act of Assembly above referred to, and is not taxable. Very truly yours, WM. M. HARGEST, Deputy Attorney General. Stafford Manufacturing Company vs. Pearce et al. Partnership—Individual Liability-Law of Foreign Jurisdiction——Technicality Record. In an action against a partnership existing and doing business under the laws of Louisiana on a contract entered into by a single member of the partnership, and where the names of the other partners were not before the court in that they had been stricken from the record, a judgment against the defendant will be sustained when there is nothing in the Louisiana law which in any manner limits the liability of an individual trading under a firm name. He is the firm and he is, therefore, liable in solido. Where the defense is technical, the ends of justice are best subserved by giving effect to a technicality which will bind a debtor to the performance of his obligations, rather than to permit him to escape upon a like technicality. In applying the law of a foreign jurisdiction in a particular case, it must be applied in view of the actual state of the record as it stood at the time of the trial. Motion Ex Parte Defendants for Judgment Non Obstante Veredicto. No. 326 April Term, 1915. C. P. Allegheny County. L. C. Barton, for plaintiff. Owen S. Cecil, for defendants. REID, J., April 20, 1916.-This is an action of assumpsit brought by plaintiff, an Illinois corporation, against the defendant, who is a member of the firm of Josiah Pearce & Sons, and the firm of that name, residents of and doing business in the City of New Orleans, Louisiana. It was brought to enforce payment of the price agreed to be paid for he furnishing and installation in the Canal Street Theater of Josiah Pearce · & Sons in New Orleans by plaintiff of 494 opera chairs, more particularly described in the agreement marked Exhibit “A," dated September 4, 1911. attached to plaintiff's Statement of Claim. The total price to be paid upon the terms specified in the agreement was $1,136.20. The question of defective installation and defects in material, etc., was submitted to a jury and a verdict was rendered for the full amount of plainff's claim. Defendants' counsel moved for a new trial and for judgment N. O. V. The matters of fact as to compliance or non-compliance by plaintiff with the terms of its contract, with regard to which defendants made defense, have been settled by the verdict upon testimony which convinced the jury upon those matters, and we do not now intend to overthrow their conclusions. One of the reasons for a new trial is that the verdict was against the weight of the evidence. This was not seriously urged upon argument, bu defendants' counsel relies upon his legal propositions, which, if sustained, will necessitate the entry of a judgment for defendant non obstante veredicto. Exhibit "A," made in New Orleans, is admittedly a Louisiana contract, the rights of the parties thereunder to be determined under the laws of that State. The defendant Josiah Pearce is a member of the firm of Josiah Pearce & Sons. Service was had upon him in this jurisdiction, and as a result, it is claimed by plaintiff that both he and his said firm are now in this court. The affidavit of defense filed by Josiah Pearce on behalf of himself an! his firm presents the legal propositions involved in this case as follows: "That the contract referred to in plaintiff's statement is made and governed under and by the laws of the State of Louisiana, where same was also to be performed, and where said partnership was and is domiciled in respect to said contract. That in and by the laws of said State, being the Stafford Manufacturing Company vs. Pearce et al. Civil Law embodied in the Revised Civil Code of the State of Louisiana. the partnership entered into and carried on by said defendants is known as an ordinary partnership in distinction from a commercial partnership, and in which the partners are not bound in solido for the partnership debts and no member thereof can bind a co-partner unless specially authorized thereto. That such partnership is not liable to suit in this jurisdiction or any member thereof, but the same is only liable in respect to the contract in question in the State of Louisiana. That said contract was executed on behalf of said firm in the City of New Orleans by J. E. Pearce, and the defendant Josiah Pearce authorized no one to bind him thereby, and eve? if such authority had been given in accordance with the aforesaid laws the affiant Josiah Pearce would only be liable for his share or one-third of said debt in any event." In support of these propositions, defendants' counsel presented the following points upon which, in his argument of these matters, he states that he relies: "2nd. The contract being made in the State of Louisiana by one partner on behalf of an 'ordinary partnership' as defined by its statutes, this Court will in respect to the non-resident plaintiff apply the law of said State of Louisiana as to the liability of said partnership and partners thereunder. "3rd. By the statute laws of said State, each of said partners, defendants herein, are only liable for his proportionate share of the partnership debt, and no recovery can be had against the partnership and the partners not served with process. "4th. Defendants being sued in this action only as partners and one only being served or appearing, under the aforesaid statutes of said State of Louisiana, no recovery can be had on said contract against said partnership or any member thereof." The Court refused the points in question "for the reason that the partnership agreement was not recorded in the office for the recording of mortgages of the proper parish, and the co-partnership thereby became one at common law." Article 2872 of the Revised Civil Code of Louisiana is as follows (Merrick's Revised Civil Code of La.): "Ordinary partners are not bound in solido for the debts of the partnership and no one of them can bind his partners, unless they have given him power so to do, either specially or by the articles of partnerships." Article 2873: "In the ordinary partnership, each partner is bound for his share of the partnership debt, calculating such share in proportion to the number of the partners, without any attention to the proportion of the stock or profits each is entitled to." Article 2874: "If a debt be contracted by one of the partners of an ordinary partnership, who is not authorized either in his own name or that of the partnership, the other partner will be bound each for his share, provided it be proved that the partnership was benefited by the transaction." The plaintiff's theory is that the co-partnership is not such as is contemplated by the Louisiana Code, but is one at common law, to which the common law rules will be applied, including that of individual liability for all the partnership indebtedness. It, in any event, under the Louisiana Code was not a commercial partnership. If it can be described under the Code it is a "particular partnership," covered by Article 2835, which reads as follows: |