Tozer v. Jackson, 164 Pa. 373. The case | subsisted at his death, and equivalent under consideration is stronger than that one, in that that one was properly in the Court of Common Pleas, and its action had been affirmed by the Supreme Court. There was something there which should have been returned to the Orphans' Court. While in this case nothing is there, therefore nothing is there to return, and nothing has disturbed the decree annulling the probate of the will. We have an account of an administrator de son tort, showing $16.36 for distribution, which is awarded as follows. * * * Estate of Frederick Goos, Deceased. to a promise to pay; and 2. As the executors themselves were the beneficiaries of the estate, and the benefit or indulgence or postponed payment accrued to them individually, under the authority of McWilliam's Appeal, 117 Pa. 111, they were estopped from interposing the bar of the statute." The third was for fraud. The Supreme Court said: "We do not concur with the learned court below in the first and second reasons given for the decree. As to the first, it is directly in conflict with all our authorities, from Fritz v. Thomas, 1 Wharton 66, down to Light's Appeal, 136 Pa. 211. All of them hold that the recognition of a debt barred by the statute by the personal Decedents' estates-Payment of debts representative is but a new promise, on by widow. Where a widow voluntarily pays the debts of her deceased husband, her estate cannot be repaid from his estate after the lien of his debts has expired and limitations has cut them out. which he must be sued personally; he is not answerable in his representative capacity for any cause of action not created by the decedent himself. If he revive the cause of action by a new promise, then the promise is essentially a new contract, which alone can be relied Adjudication. O. C. of Lancaster Co., on to sustain the action." August Term 1914, No. 72. O. S. Schaeffer and F. Lyman dolph, for accountant. Frank S. Groff, for exceptant. In the case under consideration the Win-widow was not the executor, though later became an administrator. She seems to have voluntarily paid her husband's debts and the claim made in behalf of her estate must be refused. Frederick Goos died testate December 6, 1889. Elizabeth, his wife, to whom he gave the use of his estate for life, died June 1, 1914. His estate was heavily encumbered, believed to have been insolvent. Elizabeth Goos put her shoulder to the wheel and paid his creditors. Even if she be subrogated to their rights, to continue the lien of the debts it was necessary to invoke the Act of June 14, 1901, P. L. 562, which was not done; nor was the bar of the statute of limitations overcome so that payment of them might be made out of the proceeds of the sale of the converted real estate. In Claghorn's Estate, 181 Pa. 608, the lower court overruled the plea of the bar on three grounds: "1. That the payments kept up for more than seven years after the death of the testator were a distinct recognition of the debt which As will be seen by the notes of testimony the exceptions have been amicably adjusted, and it is agreed that the credit of $51.75, paid H. M. Houser, Esq., professional services and expenses, shall be reduced to $26.75, and therefore $25.00 is added to the balance in the account; and that the accountant has received $88.45 net rents since Elizabeth Goos's death, or a total surcharge of $113.45. The following is the important part of the will: "After the death of my said wife, Elizabeth, or in the event of her marrying again, I do order and direct my hereinafter named executor to sell at public or private sale, all the real estate of which I may be possessed at the time of my decease, and the proceeds thereof, after deducting costs and expenses, to be equally divided, share and share alike, between my six children, or the survivors thereof, viz. Lawrence Goos, Henry Goos, Louisa Goos, Charles Goos, Frederick Goos and Annie Goos and to their heirs and assigns." Lawrence Goos has since died, and Elizabeth Kuhns is the administratrix of his estate. * * * Legal Miscellany. Proposed Judicial System for New York. (Distribution was decreed accord- of Law Notes that a group of well ingly). Quarter Sessions. Commonwealth v. Eaby. Maintenance. An order for maintenance should be modified where the defendant's business has been sold out and he has no occupation. Rule to modify order. Q. S. of Lancaster Co., January Sessions 1914, No. 90. Chas. G. Baker, for rule. We are informed by the May number known members of the New York Bar are contemplating proposing to the Constitutional Convention a judicial system. for that State, based upon the following principles: 1. A single court: thus abolishing the anomalies of concurrent, conflicting and limited jurisidictions. 2. A chief justice elected for a short term, who shall himself appoint the justices of this court: thus preserving the immediate relation to the people of the judiciary, the executive and the legislative, yet preserving their relative independence. 3. This appointive judiciary to hold office for life or during good behavior and with a prospect of retirement on a 4. The rules of court and procedure, Amos E. Burkholder and John E. reasonable pension. judges, the adaptation of the judicial machinery to developing conditions, all to be controlled by a judicial board: thus relieving the State of the cumbersome code, constant legislative interference and the inelasticity of the present system. 6. A committee of discipline having power over bar and bench alike: thus insuring a uniform standard of professional conduct throughout the State. On January 17, 1914, when we made the order upon the defendant to pay his wife Elizabeth Eaby the sum of $6.00 per week for her support, he was postmaster and a merchant in the Village of 5. Masters who shall dispose of all Bareville this County. It appeared that interlocutory or procedural matters: thus he was doing a prosperous business. leaving the judges free to try issues and Since then he has sold out his business-it is hoped-greatly reducing the in order to realize money with which to volume of appellate business. pay his debts, and has been removed as postmaster. He has no occupation, and has thus far been unable to obtain any He owns a property, the rental value of which is $9.00 a month, upon which there is a lien for about its value, which lien is for collateral security. It does not appear that there is any actual liability on this lien. We are of the opinion, however, that there is such change in his circumstances as entitles him to a reduction to the order, and we, therefore, reduce the order from $6.00 to $3.50 per week. 7. A probate officer legally accessible in every county for unlitigated matters. The proposed system incorporates a number of the suggestions of the Report of the Committee of the National Economic League on "Efficiency in the Administration of Justice." That report strongly contended that the best judicial work requires an appointed, rather than an elected judiciary, or at least that the system of selection should be such as to insure the incumbent a long term of service. The report says: "In what may be styled the classical period of American law, the bench was for a greater portion of the time appointive, or, if elective, elected by the legislature, and tenure was assured for life. Even after the movement for an elective judiciary gained strength about 1850, the Since traditions of the older order maintained a high standard for some time. the Civil War, except in New England, the bench has been elective with few exceptions and for the most part for relatively short terms. The constructive work in American law, the adaptation of English case law and English statutes to the needs of a new country, and the shaping of them into an American common law, was done by appointed judges, while most of the technicality of procedure, mechanical jurisprudence and narrow adherence to eighteenth-century absolute ideas of which the public now complains, is the work of elected judges. The illiberal decisions of the last quarter of the nineteenth century to which objection is made to-day were almost wholly the work of popularly elected judges with short tenure. Moreover, where to-day we have appointive courts, these courts, in conservative communities, have been liberal in questions of constitutional law, where elective judges, holding for short terms, have been strict and reactionary. Under our system of making law through judicial empiricism, almost everything turns on the strength, capacity and learning of the judge. We require much more of a judge than popularity or honest mediocrity or ignorant zeal for the public welfare can bring about. If our system is to work well, experts must be chosen, and in consequence the mode of choice must be one which will be governed by expert knowledge of the qualifications of those who are chosen." It is also interesting to note that several of the principles of the proposed judicial system are similar to suggestions made by Prof. Roscoe Pound in his address, The Organization of Courts." 4. Did she offer and do such in LANCASTER LAW REVIEW. dignities to the person of the said Joseph Retten, her husband, as to render his VOL. XXXII.] FRIDAY, JULY 9, 1915. [No. 36 condition intolerable and his life burdensome? Common Pleas--Law Ruetten v. Ruetten. Divorce Cruel treatment Retaliation -Irrelevant point—New trial-Afterdiscovered evidence. A point is properly refused which, though correctly stating the law, has no particular application to the evidence in the case. Where, in a divorce case on the ground of cruel treatment and indignities, the defense is retaliation for like treatment, the defendant must show that the retaliation is not excessive. After-discovered evidence that only impeaches the credibility of witnesses is not sufficient to justify the granting of a new trial. A new trial will not be granted for afterdiscovered evidence where there is no reason to believe that a different verdict would have been produced by such evidence. The case was subsequently tried by a jury. At the trial, we submitted to the jury all of these issues of fact separately, and they found all of them in favor of the libellant. We are now asked by the respondent to grant a new trial. The first reason for a new trial is, that we erred in refusing to affirm defendant's first point. This point was: "The policy of the law of Pennsylvania and the declaration of its highest court is, that divorces ought never to be easily obtained, for marriage is the most sacred of human relations, and should never be dissolved without clear proof of imperious reasons. It is not a mere personal relation, but a public institution, and the deep stake society has in its sanctity has led the courts to be strict in the constructions of the causes of divorce." In refusing it, we said: "It is a correct statement of the law, but cide the questions involved here the same it has no application. You must deas all other questions are decided by juries, on the weight of the testimony. There is no question that the point correctly states the law; but it is law for Geo. Ross Eshleman and John E. the courts and not for juries. We inMalone, for libellant. Issue in divorce. Rule for a new trial. C. P. of Lancaster County, May Term 1914, No. 8. Coyle & Keller, for respondent and rule. structed the jury as to the proper construction of the causes of divorce; and We July 3, 1915. Opinion by HASSLER, J. it was their duty to decide whether the In his libel, the libellant alleges three testimony proved them, just as all other causes of divorce, namely, desertion, questions are decided by juries, that is, cruel and barbarous treatment, and in-by the weight of the evidence. dignities. The respondent having denied the allegations of the bill, at her request, the following issues of fact were framed: 1. Did Mathilda Reutten, the respondent, wilfully and maliciously desert Joseph Reutten, the libelant, without reasonable cause? 2. Has said desertion, if any there was, continued for a period of two years and upwards? 3. Was the said Mathilda Reutten guilty of such cruel and barbarous treatment towards her husband, Joseph Reutten, as to render his condition intolerable and his life burdensome? know of no policy of the law that makes a different rule because the questions a jury are engaged in trying may result in a divorce. We do not think the point should have been affirmed. The fourth, fifth and sixth reasons allege that we erred in not affirming defendant's fourth, fifth and sixth points. These points were, in substance, that, when a wife is charged with cruel and barbarous treatment of her husband, she may justify her conduct by showing that it was provoked by his cruel and barbarous treatment of her or indignities to her person. We affirmed these points. with the explanation that "the burden | ficient testimony in addition to that of is on her to show that her cruel and barbarous treatment of him as a retaliation of his conduct or treatment of her was not excessive." In Richards v. Richards, 37 Pa., 225, it is said: "Indignities provoked by the complaining parties are, of course, no ground of divorce, unless when the retaliation is excessive." The same reasons apply in cases where cruel and barbarous treatment is the ground for divorce. When the defense is made that the cruel and barbarous treatment or indignities are in retaliation of the libellant's conduct, the burden is on the defendant to prove it, and that it was not excessive, as it is an affirmative defense: Flick v. Flick, 31 L. L. R., 404. Our answers are sustained by these cases. The sixth and seventh reasons are, that we erred in refusing defendant's ninth and tenth points, and the eighth reason is, that the verdict is against the law and the evidence. These points are to the same effect, namely, that binding instructions should be given in favor of the defendant. We could not have affirmed them, as in our opinion, the jury are fully justified, under the law and the evidence, in finding a verdict in favor of the libellant. Additional reasons were filed, alleging after-discovered evidence. They are four in number and are to the effect that the reputation for veracity of three of libellant's witnesses is not good and that they are not worthy of belief. these three witnesses on the subjects on Boyer v. Boyer. Divorce Fraud-Opening of decree. Where the service of an alias subpoena in divorce, by publication, gives the court jurisdiction to enter a decree, even though there be fraud in obtaining it the court will not open such decree in the absence of something to show that the respondent had been injured thereby. The court can open a decree in divorce ob tained by fraud and where a decree was ob- Rule to open or vacate divorce. C. P. of Lancaster County, November Term 1914, No. 5. Alias to December Term 1915, No. 33. John M. Groff, for rule. Chas. E. Workman and B. F. Davis. contra. July 3, 1915. Opinion by HASSLER, J. After-discovered evidence that only The libellant, on September 24, 1914, impeaches the credibility of a witness is presented his libel to this Court, in which not sufficient to justify the granting of a he alleged that his wife, Hannah M. new trial: Com. v. Dorwart, 27 L. L. R., Boyer, had deserted him on September 106; Swartley v. Steigerwalt, 23 L. L. 15. 1908. Upon this libel, a subpoena R., 390. Even in a murder case, after-was issued, which was returned n. e. i. discovered evidence, as here, that only on November 16, 1914. An alias subattacks the character of a witness for poena was then issued to the above numveracity is not ground for a new trial:ber and term, which was also returned Com. v. Williams, 2 Ash. 69; Com. v. Flanagan, 7 W. & S. 415; Com. 7. Yot Sing, 7 Kulp, 349. It is clear, from these decisions, that we could not grant a new trial on the ground of after-discovered evidence, as it is confined entirely to impeaching the veracity of three of libellant's witnesses. There was suf n. e. i. and publication followed. Master was appointed, who took depositions, which sustained the allegation of the libel, and upon his report, a decree of divorce favorable to the libelant was entered on January 30, 1915. The respondent first learned on April 6, 1915, that a decree of divorce had |