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was no conditional promise about it. There was no promise to pay any part that would not be obtained from the estate of John N. Herr. So far as I can see, it was a full and complete promise to pay the note, and, as such, I think it tolled the running of the Statute and is sufficient to enable the plaintiff to recover. The law has been so lately again laid down by the Supreme Court, and the facts are so few and plain, that I do not think it is necessary to further discuss the various authorities upon the subject. I am of opinion that the whole question was one of fact. It was submitted to the jury, and concerning the submission there is no complaint. As I have said, I think the testimony sustains the action, and that, therefore, the rule for judgment for defendant non obstante veredicto ought to be discharged. Rule discharged.

Jackson v, Kannels.

Answer to rule.

On a rule to open a judgment, the averments of an answer as to the amount due must be taken as true in the absence of depo

sitions.

Rule to open judgment. C. P. of Lancaster Co. January Term, 1915, No. 864; April Term, 1915, No. 53, Ex. Doc.

B. F. Davis, for rule.

S. Z. Moore, contra.

September 25, 1915. Opinion by LANdis, P. J.

It is asserted, and not denied, that the defendants gave a judgment to the plaintiff, dated November 18, 1913, payable one day after date, for $39.60, and that it was entered to January Term, 1915, No. 864, and execution was subsequently issued thereon to recover $13.50, with collection fee and costs. The amount paid by the defendants, as contained in their receipt book, was $26.00, and concerning this there is also no dispute. The defendants, however, asserted that, instead of receiving $39.60, they were

paid $30.00, and that there ought to be a credit for fifty cents, which is not contained in the book.

On May 3, 1915, the plaintiff filed an answer, in which he states that he paid to Mrs. Rannels $35.00, and that $4.60 was for an examination fee, brokerage and interest, which could only be paid upon the final payment of the loan. He asserts that $13.50 was the correct amount due and owing at the time the execution issued.

No depositions were taken, and, in the absence thereof, the facts contained in the answer must be taken to be true. Under these circumstances, nothing remains for us to do but to discharge the rule.

Rule discharged.

Swinehart Tire and Rubber Company v. Bowermaster, et al., Trading as Penn Real Estate Company.

Sale-Affidavit of defense-Set-off.

In a suit for the price of clincher truck tires an affidavit of defense is insufficient which avers that the tires were too small and that the plaintiff cut down the wheels of the truck thereby injuring the truck to an amount equal to or greater than the plaintiff's claim, without denying that the goods sold were ordered by the defendants and were still in their possession and were furnished by the

plaintiff.

An allegation of set-off in an affidavit of defense must be as specific as a statement.

Rule for judgment for want of a sufficient affidavit of defense. September Term, 1914, No. 47.

S.V. Hosterman and Geo. Ross Eshle

man, for rule.

Harvey B. Lutz, contra.

DIS, P. J.
September 25, 1915. Opinion by LAN-

The plaintiff in this case brought suit to recover the sum of $56.14, which it alleged was due by John R. Bowermaster and Jesse F. Bowermaster, trading as the Penn Real Estate Company, for merchandise consisting of Clincher

Truck Tires furnished to the defendants at their request. A copy of the book account accompanied the statement, and both were duly served upon the defendants on December 12, 1914. Thereupon, John R. Bowermaster, acting on behalf of himself and Jesse F. Bowermaster, filed an affidavit of defense,, in which, while he admitted that the plaintiff furnished the articles set forth in the bill, he asserted that the rims for which the same were ordered were 32 inches by 4 inches, and the tires were too small in circumference and too narrow; that the plaintiff cut down the wheels of the truck, thereby injuring the truck to an amount equal to or greater than the plaintiff's claim. He also stated that Jesse F. Bowermaster was neither owner nor joint owner of the truck and had no interest therein.

It will be observed that the affidavit of defense does not deny that there was a partnership existing between John R. Bowermaster and Jesse F. Bowermaster, nor does it claim that the goods sold were not ordered by them. If they ordered the articles, it seems to me to make little difference who owned the truck. Nor does the affidavit of defense allege that the articles were not furnished by the plaintiff, and it does not claim that they are not now in the defendants' possession, or in the possession of one of them. So far as is disclosed thereby, the defendants still retain the articles ordered.

"An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts or manifest evasion in the mode of statement, it will be insufficient to prevent judgment." Sprissler v. McFetridge, 37 Sup., 607; Mathers v. Verna, 48 Sup., 302.

The claim of set-off is wholly insufficient. In Selz, Schwab & Co. v. Cohn, 27 Lanc. Law Review, 97, following the numerous cases decided by the appellate courts, it was here held that an allegation of a set-off in an affidavit of defense will not be regarded when in general terms. It must be as specific as

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a statement as to the source, character and amount of the set-off."

Concluding, therefore, that the affidavit of defense is insufficient, it is directed that judgment be entered in favor of the plaintiff and against the defendants for the sum of $56.14, with interest, amounting in the whole to $63.05. Rule made absolute.

Sterner v. Sterner.

Divorce-Desertion-Justified by cruel and barbarous treatment-Burden of proof.

Where the respondent in a divorce proceeding on the ground of desertion, admits the separation but alleges in justification thereof that she was compelled to leave the libellant

because of his cruel and barbarous treatment,

the respondent must establish by a preponderance of the evidence, a state of facts that would entitle her to a decree of divorce on

the grounds advanced in her defense.

The cruelty which entitles a woman to a divorce is actual personal violence or the reasonable apprehension of it, or of such a course of treatment as endangers her life or health, and renders her habitation unsafe.

Intercourse between husband and wife after desertion without any attempt at reconciliation is not a bar to divorce on the ground of desertion.

Exceptions by respondent to report of Master in Divorce. C. P. of Berks Co.

Dumn & Schaeffer, for exceptions and respondent.

Silas R. Rothermel, for libellant.
June 1, 1915. Opinion by WAGNER, J.

The libellant in his libel in divorce al

leges as a ground for divorce that on or about the Ist day of September, 1908, the respondent wilfully and maliciously deserted the libellant by absenting herself from his habitation without cause, and has ever since persisted in such desertion. The respondent in her answer admits that she left her husband on September 1, 1908, and removed with her three children to No. 25 North 2nd street, Reading, Pa., where she has since resided. She gives as a reason for so doing the brutal treatment received by

her from her husband which made it impossible for her, without jeopardizing her health and preserving her selfrespect, to continue living with the libellant any longer.

It will be seen by this answer that we have an admission of the separation by her, with a justification of it on the ground of alleged cruel and barbarous treatment of her husband. Such being the case, as is stated in Ingram v. Ingram, 58 Pa. Sup. Ct., 522, by Justice Head, on page 523: "The burden of proof was thus shifted, as all of the authorities declare, and it became incumbent on the respondent to establish by the preponderance of the evidence, a state of facts that would entitle her to a decree of divorce on the grounds advanced in her answer above quoted." That is, in order to justify her leaving her husband, the cruel and barbarous treatment of her husband must have been such as would entitle her upon that ground to a decree of divorce. "The cruelty which entitles a woman to a divorce is actual personal violence or the reasonable apprehension of it, or of such a course of treatment which endangers her life or health, and renders her habitation unsafe:" Welfer v. Welfer, 54 Pa. Sup. Ct., 215.

I have several times very carefully

examined the evidence and find that the

only testimony bearing upon the husband's alleged cruelty is that given by the respondent on page 14 (N. of T.), where she says:

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"I never knew what it was about; it was about so many things. Mother used. to fight about different things and nothing was right."

The other daughter, Edna Sterner, when asked the question (N. of T., p. 20):

"Do you recollect immediately before your mother left your father if there were any quarrels between your mother and father?" answered:

"Quite often; they would often start like this-he would get up before it was time and make his supper while she had hers cooking. He had plenty of time to wait for her meals before he went to work but he got his own for spite and left hers cook. He used to accuse her of running around with men and she told him she didn't."

Then on page 22, when this witness was further questioned:

"Whenever they had these quarrels, She answered: how long did it last till the next one?

times they had one every day." "Sometimes quite a while and other

That is the entire testimony that we have to sustain respondent's allegation of cruelty. This clearly, even if believed, would not be sufficient to entitle her to a divorce upon the ground of cruel "He was drunk and came home and and barbarous treatment: Johnson v. beat me and choked me till I was black Johnson, 31 Pa. Sup. Ct., 53; Hexamer and blue and used terrible words, so of. Hexamer, 42 Pa. Sup. Ct., 226; course it went from one thing to another. He never treated me as a wife should be treated since we were married."

This testimony wherein she stated that the libellant beat and choked her is denied by the libellant. Neither do either of the daughters, who testified in respondent's behalf, say that the libellant at any time committed violence upon respondent. The other testimony bearing upon the alleged conduct of the husband is that of the daughter Alice Keim, who,

Heath v. Heath, 44 Pa. Sup. Ct., 118: Biddle v. Biddle, 50 Pa. Sup. Ct., 30.

The other defense alleged in the answer is that since September 1, 1908, the libellant has been a frequent visitor at her home, No. 25 North 2nd street, and quite lately, in the latter part of January, 1914, had marital relations with her. The evidence shows that for at least four years immediately after September 1, 1908, the libellant and respondent had no relations whatever with each other |—that is, that the desertion was per

sisted in for at least that length of time. | married on June 18, 1888, at Bridgeton, It seems that subsequently, upon three N. J., and cohabited together until July different occasions the libellant visited I, 1912, when the libellant alleges that the home of his wife, was there upon his wife deserted him, and at the date each occasion for several hours, and of the commencement of this proceedduring that time the two had marital re-ing, September 2, 1914, had absented lations with each other. The evidence herself from his habitation for a period does not show any reconciliation, nor of more than two years. any attempt at reconciliation between the parties, and we find that there was no reconciliation. This being the case, the fact that upon several occasions the libellant and respondent had marital relations with each other, is not a bar to a divorce: Mogel v. Mogel, 1 Berks Co. Law J., 305.

The respondent's exceptions are dismissed and a decree in divorce is granted.

Divorce
Consent.

Ames v. Ames.

Desertion Separation

On a libel for divorce for desertion filed by the husband, a decree will not be granted where the evidence shows that the wife told her husband that she was going to leave him,

that he told her to take whatever furniture she wanted, that before she left he asked her to stay, and that after she left he met her several times but never talked to her on the subject of returning.

The question is whether the charge of wilful and malicious desertion has been established by the testimony.

66

The libellant's testimony as to the alleged desertion was, in substance, that on July 1, 1912, the respondent, without any unpleasant words, indicated that she did not have any connubial love" for the libellant, and was not going to stay with him any longer; that the libellant told her to take whatever furniture she wanted, but to leave something for him. to sleep in; that the respondent left the home of the libellant while he was absent during the day. The libellant further stated that he asked the respondent to stay, but that she declined; that after the respondent left, the libellant met her three or four times on the street, but that he never talked to her on the subject of returning.

The libellant called a witness, Mrs. Georgie Weaver Drinker, who testified in substance that she had conversed with the respondent prior to the separation, and respondent talked about leaving her Phila-husband, and stated that she wanted to she be "economically independent; wanted to be "free." That after the separation the witness met the respondent, who told her that she had left her

Motion for approval of master's report in divorce. C. P. No. I delphia Co. September Term, 1914, No. 185.

G. A. Schwab, for libellant.

February 26, 1915. Opinion by PAT- husband and was keeping an apartment TERSON, J.

The libel avers that in violation of her marriage vow and the laws of this commonwealth, the said Mary Fonsbury Pedrick Ames, the respondent, did, on July 1, A. D. 1912, at Philadelphia aforesaid, wilfully and maliciously desert the libellant, and from thence hitherto has absented herself from his habitation without reasonable cause."

No answer was filed by the wife, nor did she appear before the master.

From the testimony taken before the master, it appears that the parties were

house.

Another witness, Thomas Y. Field, was called by the libellant, and testified in substance that the respondent "seemed to have it in her mind that she wanted a better condition; that is, to go into business in a financial way;" and that she was not happy in living with her husband. That after the separation the respondent indicated that she was going to remain away from her husband permanently.

From the testimony it clearly appears that there was a separation, but separation is not necessarily desertion. Deser

McClellandtown Presby. Church. Trial-Agreement to dispense with jury -Striking off judgment-Act of April 22, 1874.

tion is an actual abandonment of matri- | New Salem Cumberland Presby. Church v. monial cohabitation, without the consent of the other party, and with an intent to desert, wilfully and maliciously persisted in, without cause, for two years. Separation with mutual consent is not ground for divorce. The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.

It is well settled in Pennsylvania that courts should never permit the severance of the marriage contract unless the application is made in sincerity, and then

only for a legal cause shown and fully

sustained by the testimony. Even though collusion is not positively shown, still, if the case discloses what may create suspicion of it, vigilance will be specially aroused to discover it, avert imposition, and to detect weaknesses in the proof.

In the present case we are of opinion that the separation was by mutual con

sent.

Marriage is a social institution, publici juris, being the foundation of the family and the origin of domestic relations of the utmost importance to civilization and social progress. The state is deeply concerned in its maintenance and purity and integrity. The legislature has the power to regulate the qualification of the contracting parties, the forms or proceedings essential to constitute a marriage, the duties and obligations it creates, its effect upon property rights, and the causes for its dissolution.

The marriage bond should not be dissoluble at the will of the parties by either mutual consent or renunciation or denial of it. The mere whims and caprices of married men and married women who happen to be dissatisfied with conditions should not be allowed to strike at the foundations of society. The court should never sever the marriage contract unless for good and lawful cause. As the evidence in this case fails, in our opinion, to sustain the averment of a willful and malicious desertion, the master's finding that the respondent willfully and maliciously deserted the libellant is set aside and the libel dismissed.

Where the parties to an action, by agreement filed, have dispensed with trial by jury and submitted the decision of the case to the Court under the Act of April 22, 1874, P. L., 109, the only matter in which a valid judg

ment can be entered is in accordance with the provisions of that Act. Judgment taken for default of an answer to a rule for judgment on the whole record will be stricken off.

Rule to strike off judgment. No. 392 September Term, 1913. C. P. of Fay

ette County.

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On June 3, 1912, the board of school directors of German Township, by resolution unanimously and regularly adopted, decided to acquire for school purposes a certain lot of ground in the village of McClellandtown, known as the Cumberland Presbyterian Church property, which lot then was not actually used or held for church purposes. Not being able to agree upon terms of purchase with the reputed owners of the land, the board of school directors entered upon, took possession of, and occupied, said lot of ground in accordance with the provisions of Section 605 of Article VI, of the Act of May 18, 1911, P. L., 309. The matter then was so proceeded in that viewers appointed by the court determined that the amount of damages sustained by the owners of the property by reason of the taking thereof by said board of school directors was $2,000, which sum, on account of the same being claimed by both the McClellandtown Presbyterian Church and the New Salem Cumberland Presbyterian Church, was paid into court pending the determination by the court of the rightful owner of the fund. Later, by agree

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