In re Authority of School District of Third Class.

temporary debt and issuing such obligations in the manner herein provided, shall provide from its current revenue for the payment of the same."

This section evidently relates exclusively to the second class of indebtedness defined by our Supreme Court in the foregoing citation as "new debt or increase of indebtedness by the municipal (school) authorities, which is permitted to the extent of two (2) per centum of assessed value." In construing the language used to described the districts to which this section is intended to apply, namely: "Any school district having no indebtedness or whose indebtedness is less than two (2) per centum of the total valuation of the taxable property for school purposes therein," the principles laid down by our Supreme Court in the case of Keller vs. Scranton, supra, should be applied. In the application of these principles to the facts in the present case for the purpose of ascertaining whether the directors of the district now in question have legal authority to exercise the powers conferred by Section 508 of the School Code, the item of $86,000 for outstanding bonds issued by authority of the electors, should be excluded and the existing indebtedness of the district of this class fixed at $120,500. Under this construction Swissvale Borough is a school district "whose indebtedness is less than two (2) per centum of the total valuation of the taxable property for school purposes therein," and its directors may, therefore, for the purpose of meeting the casual deficiency now existing, exercise the powers conferred by Section 508 of the School Code and borrow money as a temporary debt, to be paid within two years out of current revenues, up to the amount of one-half of one per centum of the assessed value of its taxable property, i. e., up to $47,250, as this amount added to the existing indebtedness of this class will make the total indebtedness of the class less than two per centum of the total valuation.

It is true that the total amount of all indebtedness of the district will, after the proposed $30,000 has been borrowed, be $236,500, or more than two per centum of the total valuation of taxable property therein, and this condition would seem to be in violation of a literal interpretation of the language of the proviso of Section 508 above quoted, namely: "That the total amount of all indebtedness in any school district issuing such obligations shall not at any time, including all such obligations, exceed two (2) per centum of the total valuation of taxable property therein."

I am of opinion, however, that as the section now under discussion deals exclusively with the power of directors to incur new indebtedness or increase an existing indebtedness, the phrase "total amount of all indebtedness" as used in said proviso, must be understood as being descriptive of, and limited to, the second class of indebtedness, referred to in the foregoing opinion of our Supreme Court, namely: such indebtedness as is within the power of the directors to create. As the indebtedness of this class in the district now under consideration will, after the addition of the proposed temporary debt be only $150,500, or less than two per centum of the assessed valuation of taxable property, I am of opinion that the terms of the proviso above quoted will not be violated by the proposed increase of indebtedness. You are therefore advised that the directors of the school district of Swissvale Borough have legal authority to now borrow for the purposes indicated, the sum of $30,000 as a temporary debt and issue the obligation of the district therefor, payable within two years from its date out of current

revenues.

Very truly yours,

J. E. B. CUNNINGHAM, First Deputy Attorney General.

Divorce

Clark vs. Clark.

-Cause of action arising out of the state-Liability of—Act of May 9th, 1913.

Under the Act of May 9, 1913, a divorce will be granted where the parties prior to and at the time of their marriage resided in the state of New York, and continued to live there until the time of the desertion complained of in the libel, after which the libellant came to Pennsylvania and the respondent went to Illinois, even though no service except by publication be had on the respondent, who never was a resident of this state.

Jurisdiction in such cases has been conferred by the Act of Assembly cited, and it is the duty of the courts to administer the law as enacted by the legislature. If a divorce granted under such circumstances be of no validity beyond the limits of Pennsylvania, that is a matter more for the future contemplation of the parties than for the consideration of the court in granting a decree in pursuance of an express Act of Assembly.

Libel in divorce. No. 171 September Term, 1914. C. P. Fayette County.

J. Kirk Renner, for libellant.

VAN SWEARINGEN, J., January 25, 1915.-A subpoena in divorce in this case was awarded on June 29, 1914. The respondent is believed to be residing in Chicago, Ill. Both the original subpoena and an alias subpoena were returned N. E. I. by the sheriff, and publication was had according to law. The respondent was not served personally and did not appear, and the case was proceeded with ex parte. From the evidence it appears that prior to their marriage the parties lived in Brooklyn, N. Y. They were married there on October 18, 1911, and lived and cohabited together there as husband and wife until the time of the desertion complained of in the libel, which occurred there on June 14, 1912. In June, 1913, the libellant took up her residence in this county and still resides here. So far as the evidence shows the respondent never was a resident of this state.

Under circumstances similar to these we refused a decree of divorce in Davenport vs. Davenport, 35 Pa. C. C., 62, 17 Dist. R., 1005, for want of jurisdiction. But since then there has been passed the Act of May 9, 1913, P. L. 191, which provides, "That the several courts of common pleas shall have jurisdiction in any action in divorce, for any cause now or hereafter allowed by law, notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this commonwealth, and that both parties were at the time of the occurrence of said cause domiciled without this commonwealth, and that the respondent has been served with the subpoena only by publication as required by law." We are of opinion that this act dispels the want of jurisdiction in cases of this kind suggested by us in Davenport vs. Davenport. It has been so held in Allegheny County, in Christmas vs. Christmas, 62 Pitts. L. J., 525, although held to the contrary in Luzerne County, in Beckett vs. Beckett, 24 Dist. R., 37. Even if it be true, as suggested in both of those cases, that a divorce granted under such circumstances will be of no validity beyond the limits of Pennsylvania, that is a matter more for the contemplation of the parties than for the consideration of the court in granting a decree in pursuance of an express act of assembly. The legislature has enacted the law, and the duty of the court is to administer it.

The respondent in this case did not actually leave the libellant, but by his violent and cruel treatment of her compelled her to leave him. But that constituted desertion by him. "Desertion under the statute is the wilful abandonment without cause of one party by the other, and against the will of the party abandoned, for the period of two years. If the husband's conduct is so cruel towards his wife that she cannot live with him in safety to her

Clark vs. Clark.

health or without peril to her life, and for such reason she leaves him and abandons his home, she does not thereby commit the crime of desertion. In such a case she does not leave her husband or his home in consequence of any wilfulness on her part, but is compelled by the cruelty of the husband and against her own will so to do. The desertion in such a case is upon his part, and not upon hers. He as completely commits the crime of desertion when by his cruel conduct he compels her for safety to leave him and his home as when he wilfully and without cause abandons her. When the wife is obliged by the cruelty or violence of her husband to leave him for safety and to avoid personal injury her compulsory flight amounts to desertion by him." Howe vs. Howe, 16 Pa. Superior Ct., 193. "Any unjustifiable conduct on the part of either the husband or the wife which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted, or even threatened, or reasonably apprehended." Russell vs. Russell, 37 Pa. Superior Ct., 348; Yetter vs. Yetter, 45 Pa. Superior Ct., 332.

The evidence shows that both mental suffering and personal violence were inflicted on this libellant by the respondent. The master has found that the libellant is a woman of culture and refinement, that the treatment of her by the respondent was such as would be not only repulsive but shocking to the sensibilities of a woman of her character and station in life, and that the conduct of the respondent was such as fully justified the libellant in leaving his home and such as amounted to a wilful and malicious desertion of her by him. The testimony of the libellant is corroborated by that of other witnesses, and with the conclusions of the master, on all the evidence, we fully agree. We are satisfied from the evidence that the respondent's conduct toward his wife was so cruel that she could not live with him in safety to her health and without peril to her life, and that she was compelled to leave him and abandon his home on that account, and a case of desertion by him, therefore, has been made out.

A decree of divorce will be signed.

Keplevin

counsel.

Newmann et al. vs. Goldhammer et al.

-Choosing arbitrators--Withdrawal of counsel-Notice to opposing

After choosing arbitrators for a compulsory arbitration of a replevin suit the attorneys for plaintiff will not be allowed to withdraw their appearance withcut notice to the defendant.

Sur motion to vacate order permitting appearance to be withdrawn by plaintiff. No. 2230 July Term, 1914. C. P. Allegheny County.

L. K. & S. G. Porter, for plaintiffs.

A. C. Stein and A. C. Teplitz, for defendants.

SHAFER, P. J., February 13, 1915.-The action is replevin against a landlord. The defendant took out a rule to choose arbitrators, and in accordance with the rule arbitrators were duly chosen on January 20, 1915, to meet on February 1, 1915. Notice of this rule was served on January 22nd, on the plaintiffs' attorney, who had been allowed on that day, before the service of the notice, to withdraw his appearance for the plaintiffs upon his own motion without notice to the defendants. We are of opinion that the order permitting the plaintiffs' attorneys to withdraw their appearance must be vacated, for two reasons: (1) because the order was inadvertently made without notice to defendants, who under the circumstances had a good right to oppose it. It appears from the statement of both parties that the plaintiffs have left the jurisdiction of the court, and that their whereabouts are unknown. One who brings a writ of replevin and thereby takes goods out of the possession of the defendant ought not to be allowed to thus withdraw himself entirely from the jurisdiction of the court.

A second and equally valid reason it seems to us, is that after arbitrators are chosen under the Compulsory Arbitration Law, the case is nɔ longer in court and the court has no power to make orders in regard to it until an award is filed or the rule otherwise disposed of. The rule is therefore made absolute.

First National Bank vs. Walton.

Negotiable instruments- -Insanity of maker--Insanity of accommodation endorser-Receipt of value for obligation given.

B executed a note and discounted it at the Plaintiff bank. The proceeds were deposited to his account and checked out by him in the ordinary course of business. The bank had no knowledge as to the final application of the money or of the insanity of defendant. In an action on the note, the defense was insanity on the part of the maker. Held, that as B had received full consideration for the note, he was liable for the amount of the note, with interest.

B was an accommodation endorser on a note and received when the note was discounted a note from the maker with collateral security of greater value at that time than the amount of the original obligation. In an action against 2 on the note, the defense was insanity, and at the time of trial it appeared that the security which B had received was of no value. Held, that if the jury found B to be insane, no recovery could be had on the note, as he had not actually received any value for the obligation. The value of the security must be estimated at the time of its conversion or at the time of trial of the suit.

Rule for new trial and judgment n. o. v., ex parte defendant, in each case. Nos. 758 and 759 October Term, 1912. C. P. Allegheny County.

Geo. N. Monro, Jr., for plaintiff.

Watson & Freeman and E. C. Irwin, for defendant.

COHEN, J., February 24, 1915.-Plaintiff brought these two suits against defendant to recover the amount of three promissory notes, on two of which he was maker end endorser and on one of which he was only endorser. By agreement of counsel, the two suits were tried together. The suits were instituted against Samuel B. Walton, with notice to the Fidelity Title & Trust Company, Guardian of Samuel B. Walton, a weak-minded person, who was decreed such long after the signing of the said notes sued on. Defendant having died subsequent to the bringing of the suits, bis administrator, the Fidelity Title & Trust Company was substituted. Plaintiffs proved at the trial of the cases execution by defendant of the two notes on which he was both maker and endorser, the fact of their discount by plaintiff bank, and the payment of the full amount thereof to the defendant, Walton, less the six per cent. discount. These notes were both demand notes, signed by defendant Walton to his own order, and each by him endorsed.

The notes were taken to the plaintiff bank by Walton's attorney in fact, James W. Scully, who had been created such by defendant on the first day of March, 1904, by power of attorney acknowledged and recorded in Power of Attorney Book Vol. 29, pp. 194 and 195, in the Recorder's Office of Allegheny County, Pennsylvania, authorizing Scully as follows:

"For me and in my name to execute any mortgage, deed, bond, check, note or any other instrument of writing whatever; to receive and receipt for all moneys due or to become due, lease all property, convey all propcrty, and generally to act for me as fully as I myself could act if I myself were personally present; and I hereby authorize him to appoint one or more attorneys under him; to the said attorneys I give all the authority which he shall delegate in writing when so appointed. I hereby approve, ratify and confirm all my said attorney may do by virtue hereof."

The said defendant Walton had an account in plaintiff bank and all matters connected therewith had been invariably attended to by said Scully, his attorney in fact. The officers of the bank swore at the trial that they did not know and never had seen the said Walton.

Walton's attorney in fact, Scully, presented these two notes for discount; they were duly discounted, and the proceeds thereof entered to the credit of the account of the said Samuel B. Walton, who, at the same time