In re Necessity to Present to Governor Joint or Concurrent Resolutions.

is not a matter concerning legislation and does not have to be presented to the Governor or be approved or disapproved by him.

Resolution of the Senate concurred in by the House of Representatives May 13, 1915, directing the printing of 1,000 copies of the report of the committee appointed to investigate the working of civil service laws in cities of the first class. The effect of this resolution will be to require the printing of public documents at the expense of the State, and therefore the expenditure of public money. It is, therefore, a matter of legislation and should be presented to the Governor and be approved or disapproved by him.

Resolution of the Senate concurred in by the House of Representatives May 19, 1915, creating a commission composed of the Governor, Attorney General and Auditor General, known as the Economy and Efficiency Commission, to investigate into the number, character, duties, and compensation of persons in the employ of the State government and the methods of disbursing and accounting for State funds, etc. Section 2 of the resolution provides for the expenditure of public funds for the purposes of the resolution. It is, therefore, within the constitutional requirement and should be presented to the Governor and be approved or disapproved by him.

Resolution of the Senate concurred in by the House of Representatives May 19, 1915, requesting the commutation of the sentence of death imposed on Leo M. Frank of Atlanta, Ga. This is not a matter of legislation and does not have to be presented to the Governor or be approved or disapproved by him.

Resolution of the Senate concurred in by the House of Representatives May 19, 1915, authorizing the Governor to appoint a committee of three citizens to revise and codify the laws relating to the mining of anthracite coal. The purpose of this resolution is to furnish information on legislative matters for the future use of the Legislature. It is not, therefore, strictly a matter of legislation and need not be presented to or be approved or disapproved by the Governor.

Resolution of the House of Representatives concurred in by the Senate May 19, 1915, authorizing the creation of a commission to be known as the Teachers' Retirement Fund Commission. The resolution directs that the expenditures of the committee shall not exceed in the aggregate the sum of $5,000. It impliedly authorizes an expenditure not exceeding that amount. It, therefore, deals with the expenditure of public money and should be presented to the Governor and be approved or disapproved by him.

Resolution of the Senate concurred in by the House of Representatres May 18, 1915, providing for the printing of 3,000 copies of the report of the Economy and Efficiency Commission. This will necessitate the expenditure of public funds and is, therefore, legislation. It should be presented to the Governor and be approved or disapproved by him.

Resolution of the House of Representatives concurred in by the Senate May 18, 1915, providing for the appointment of a joint committee of the Senate and House of Representatives for the purpose of considering the subject of legislation and reporting to the General Assembly methods for curing the defects therein now existing. The purpose of this resolution is to obtain information on legislative matters for future consideration. It is not properly legislation and should not be presented to the Governor or be approved or disapproved by him.

Resolution of the House of Representatives concurred in by the Senate April 28, 1915. This resolution authorizes the officers of the Commonwealth to compromise and adjust litigation instituted by the Attorney General

In re Necessity to Present to Governor Joint or Concurrent Resolutions.

on behalf of the Commonwealth in the Court of Common Pleas of Beaver County, June Term, 1910, No. 275, upon the terms set forth in said resolution. It commits the Commonwealth to certain action, is therefore legislation, and should be presented to the Governor and be approved or disapproved by him.

Respectfully yours,

FRANCIS SHUNK BROWN,

Attorney General.

Begovic vs. Begovic.

Divorce Aliens- —Jurisdiction—Act of May 9th, 1913.

The courts of Pennsylvania have jurisdiction to grant a decree of divorce where the parties were married in Austria and lived together there until the time of the occurrence complained of in the libel, after which the libellant came to Pennsylvania, where she since has made her home, although no service except by publication was had on the respondent, who never has been in this country. Jurisdiction is enforcible by the Act of May 9th, 1913, notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside of this commonwealth, and that both the parties at the time of the occurrence of said cause were domiciled without this commonwealth, and that the respondent has been served with the subpoena only by publication as required by law.

Libel in divorce. No. 239 March Term, 1915. C. P. Fayette County.

Playford & Phillips, for libellant.

VAN SWEARINGEN, P. J., May 25, 1915.-The libel in this case was filed on January 14, 1915. A subpoena and an alias subpoena were returned non est inventus, and publication was had as required by law. The respondent did not appear, and the case was proceeded with ex parte. The evidence shows that the parties were married at Trojostvo, Austria, on February 1, 1903, and that thereafter they lived together at Dominkovitch, Austria, until August 20, 1909, when the respondent deserted the libellant, going away with another woman, since which time the libellant never has seen him or heard from him, and has had no knowledge as to his place of residence. So far as it appears from the evidence the respondent never has been in this country. Following her desertion the libellant went to Breman, Germany, where she remained three years, after which she came to this country and to this county, where she since has made her home with her brother. A wilful and malicious desertion in Austria, as alleged in the libel, has been proved, and the only question in the case is as to whether this court has Jurisdiction of the cause.

The master has found that we have jurisdiction under the Act of April 13, 1911, P. L. 60, but we cannot agree with that conclusion. The act cited provides that the several courts of common pleas of this commonwealth shall entertain jurisdiction of all cases of divorce for the causes therein specified, which includes the cause of wilful and malicious desertion, "notwithstanding the said causes of divorce have occurred, or shall hereafter occur in a foreign country, or in a country, state, or territory, subject to the jurisdiction of the United States; provided, that no application for such divorce shall be made unless at the time the said cause or causes of divorce occurred the applicant therefor was a citizen of this commonwealth." This libellant was not a citizen of Pennsylvania when the cause of divorce in this case occurred, and therefore jurisdiction of the case is not conferred upon this court by the act cited by the master.

But we are of opinion that we have jurisdiction under the Act of May 9, 1913, P. L. 191, which provides:

"Section 1. That the several courts of common pleas shall have jurisdiction in any action in divorce, for any cause now or hereafter allowed by law, notwith

Begovic vs. Begovic.

standing 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. In such cases the libellant shall be a competent witness to prove his or her residence within this commonwealth.

"Section 2. The said courts shall also entertain jurisdiction of all cases of divorce from the bonds of matrimony, for any cause now or hereafter provided for by law, when the libellant or applicant for such divorce shall, at the time of filing the petition or libel in divorce, have been a resident of this commonwealth for one year previous to the filing of the petition or libel in divorce."

Under that act we held in Clark vs. Clark, 63 P. L. J., 126, that we had jurisdiction where the parties were married in the state of New York and resided 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, though no service except by publication was had on the respondent, who never was a resident of this state, and who did not appear in the case. It was held in Bishop vs. Eishop, 30 Pa., 412, that the courts of Pennsylvania had no jurisdiction to decree a divorce, on the ground of desertion, where the marriage and the alleged desertion occurred in England, and the respondent never had been in Pennsylvania, under section 6 of the Act of April 26, 1850, P. L. 590, which authorized the courts of this state to entertain jurisdiction of all cases of divorce for causes of desertion or adultery, "notwithstanding the parties were, at the time of the occurrence of said causes, domiciled in any other state." But that was because the words "domiciled in any other state" were construed to confine the jurisdiction under that act to cases where the parties were domiciled in some other of the United States, the court there saying that the words "any other state" obviously meant the states of the Union, and that there could be no reasonable presumption that the expression meant foreign sovereignties or governments, although the term was generic. But the Act of 1913 is not restrictive in effect. It is as broad as language can make it. Instead of the words "domiciled in any other state," as in the Act of 1850, the words of the Act of 1913 are "domiciled without this commonwealth." And as though the first section of the Act of 1913 might not be plain enough when it attempted to confer jurisdiction "in any action in divorce," for any cause then or thereafter allowed by law, notwithstanding the fact that the marriage of the parties and the cause for divorce occurred outside the commonwealth, and that both of the parties at the time of the occurrence of said cause were domiciled without the state, the second section provides that jurisdiction shall be entertained also "of all cases of divorce," for any cause provided for by law, when the libellant at the time of filing the libel shall have been a resident of the state for one year previous thereto. In Colvin vs. Reed, 55 Pa., 375, where no statutory restriction was involved, it was said by Mr. Justice Agnew: "In a question of jurisdiction there is no difference between the interstate and a foreign relation." The question as to whether a decree in a case like this will be of any validity outside the limits of Pennsylvania is not before us for decision.

A decree of divorce will be signed.

Browarsky's Estate.

Estate of husband-Creditors—Tenant by curtesy-Wife femme sole trader. In proceedings in the Orphans' Court to surcharge administrators because they had not accounted for the amount of the curtesy which the estate of the decedent was entitled to receive from his deceased wife, it was contended that no curtesy could be collected for the reason that the decedent's wife had become a femme sole trader and as proof there was offered in evidence a certificate under the seal of the court of common pleas purporting to be a copy of an original decree certified to by the prothonotary that it was "taken from the records." All the papers in the proceedings, including the alleged decree, were lost and the docket record did not show that any decree of the court was ever made. On a certain day all the costs were paid and on that day there was recorded in the recorder's office of the same county a paper which purported to be a complete copy of the proceedings for the decree, making the wife a femme sole trader There was nothing on the record to show that the proceedings were brought by the wife because the decedent had "deserted" her or that he had "neglected" or refused to "provide" for her, which are necessary grounds for authorizing proceedings.

Held, First: That such averments involved a jurisdictional fact necessary to the entry of the decree and the Orphans' Court has the right to examine the record relating to the proceedings and set it aside for irregularity.

Second: That in the absence of such averments which are jurisdictional in their nature, there was no ground to give validity to the certificate and its issuance was void because the court of common pleas had no jurisdiction over the petition of the decedent's wife and could not make her a femme sole trader.

Third: The administrators of the decedent must be surcharged with the net rents, issues and profits of the estate of the wife from the date of her death until the date of the death of the decedent, which amount should be paid to ereditors. Decedent's estate. No. 92 May Term, 1914. O. C. Allegheny County.

Dalzell, Fisher & Hawkins, for exceptants.

S. S. Robertson, for accountant.

TRIMBLE, J., May 25, 1915.-Hyman Browarsky died on the 21st of February, 1913, intestate, and letters were granted to his administrator on February 27th, 1913, who filed a balanced account on the 1st of April, 1914. Exceptions were filed to this account by two creditors, both of whom alleged that the administrator did not account for all of the estate of the decedent. The allegation with respect to this is, that Yetta Browarsky, the wife of Hyman Browarsky, died about two years before her husband, testate, having devised her estate to others than her husband, with the exception of fifty dollars per month which she directed to be paid to him. The exceptants allege, and it is a fact, that Hyman Browarsky refused to take under his wife's will, and elected to claim all of his estate by the curtesy, which has not been accounted for by the administrator, but has an admitted net value of $5,448.26, and counsel admit that the accountant must be surcharged in that amount if Hyman Browarsky was not barred from the recovery of his curtesy on account of the facts hereinafter set forth. The accountant's reply to this claim for the curtesy estate is, that Yetta Browarsky, the wife of the decedent, became a femme sole trader by decree of the Common Pleas Court of this County in the year 1891, which is a bar to distribution of any part of her estate to kim. The evidence of the right of Mrs. Browarsky to be a femme sole trader was not shown by an original decree, but by a certificate under the seal of the Court of Common Pleas, purporting to be a copy of an original decree, and certified to by the Prothonotary that it was taken "from the record." The reply of the claimants to this plea is that Mrs. Browarsky never was lawfully declared a femme sole trader, which appears from the following facts: The Prothonotary's docket shows that on January 21st, 1891, a proceeding was instituted in the Common Pleas Court by Mrs. Browarsky to become a feme sole trader; the respondent Hyman Browarsky filed an answer on February 2nd, 1891, and a Master was appointed to take

Browarsky's Estate.

the testimony, to be returned within twenty days. The docket does not show that the Master ever took the testimony. On February 7th, 1891, the costs, without including a Master's fee, were taxed. All of the papers which the Prothonotary's docket show to have been filed are now lost, and the docket does not show that any decree of the Court was ever made. On the day when the costs were paid, there was recorded in the Recorder's office of Allegheny County a paper which purports to be a complete copy of the proceedings of Yetta Browarsky for a decree making her a feme sole trader, and the order of Court thereon. There is no allegation in the copy of the petition so recorded, that Hyman Browarsky had deserted his wife, or neglected or refused to provide for her.

Frederic W. Miller, one of the exceptants, was employed by Hyman Browarksy, to recover from the estate of his wife Yetta Browarsky, real and personal property which was vested in her during the time when he was engaged in the liquor business in Allegheny County. The contract of Mr. Miller with his client was in writing, and is upon a contingent basis. Litigation was instituted in the Orphans' Court and abandoned. The parties having afterwards determined that the better way to settle the title to the land was in the Common Pleas, a bill in equity was filed to quiet title: an answer was filed to the bill by Hyman Browarsky, but before the matter could be brought to a final adjudication Hyman Browarsky died, and having made no will, and his and his wife's heirs being identical, the title vested in them upon his death. The administrator of Hyman Browarsky was substituted as his representative, and then all of the parties to the bill and answer, joined in an application for the dismissal of the bill, and a decree therefor was made. Mr. Miller then came into the Orphans' Court, and filed his exceptions to the administrator's account, alleging that he was a creditor on account of the services which he had rendered for Mr. Browarsky, in the proceedings in the Orphans' Court and the Court of Common Pleas. He claims to recover on a quantum meruit, because the heirs of Hyman Browarsky thwarted his recovery on his express contract when they discontinued the bill in equity in the Common Pleas. His proofs show the amount of labor which was performed by him, and the value thereof. He is entitled to recover on a quantum meruit, notwithstanding his express contract, and this was conceded by counsel for the administrator in the oral argument: Hall vs. Rupley, 10 Pa., 231; Chicago vs. Tilley, 103 U. S., 146; United States vs. Behan, 110 N. S., 338.

The legal work done by Mr. Miller consisted in the elaborate preparation of a very difficult case. An inspection of the briefs, the petition, answer, bill in equity, the answer thereto, and consideration of the work incident to the preparation of the cases for argument and trial, and the evidence of members of the bar who testified to the value of the services rendered, warrants the conclusion that he is entitled to receive the sum of $3.500.00 for the services which he has rendered, and his claim is now allowed in this amount, with interest from March 12th, 1913, the date of discontinuance of the said bill in equity.

The question in this litigation is, whether the Orphans' Court is bound by the production of a copy of an alleged decree of the Court of Common Pleas, purporting to make Yetta Browarsky a femme sole trader, when all of the primary evidence, if any, is lost, and whether we have the authority to investigate that proceeding by the secondary evidence of a recorded copy of the femme sole trader proceedings, and declare it void, because of want of jurisdiction in the Court which issued the certificate.

The authority for recording in the Recorder's office the femme sole trader proceedings instituted in the Court of Common Pleas, is found in the Act of June 15th, 1871, P. L. 387, which provides that "When any pro