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cause taking the children with her; 29 Cyc. it was held that the wife was, under the
1607

circumstances, not entitled to recover. The
In this case, the child is rather unfortun- court said, “While she keeps it, on such
ate for it virtually now stands deserted by grounds, she has no claim for compensa-
both of its parents, and we cannot compel tion." When the divorce was granted no
its stepfacher to support it. Had the step- order was made respecting the custody of
father admitted Margaret to his home the child.
when he married her mother, he might be In the case before us, the child appearing
responsible for her maintenance and sup- to be deserted by both its parents, I have
port. Chancellor Kent says in the Second no doubt that the primary responsibility for
Volume of its “Commentaries on American its support, under such circumstances, now
Law," page 192, that, if a stepfather takes rests on the father.
his wife's children into his own house, he is

The defendant is therefore directed to
then considered as standing in loco parentis
and is responsible for the maintenance and appear in open court to hear and receive
support of the child so long as it remains whatever order the court may then conclude
with him, for by that act, he holds the ; to make in the premises.
child out to the world as part of his own
family. Io Lantz vs. Frey and wife, 14

COMMON PLEAS
Pa. 201, “The defendant intermarried wich
the female plaintiff's mother, after which
the child went to reside in the family of her c. P. of

Northumberland Co.
stepfather, until she herself married. By
this arrangement, the defendant stood in Borough of Sunbury v. Northumberland
loco parentis, and was responsible for the County Gas and Electric Company.
maintenance and education of the child so' Equity -- Equity Jurisdiction Public Ser-
long as she continued to reside with him;
2 Kent. Com. 192; Stone vs. Carr, 3 Esp.

vice Company-Municipal Light Con

tract.
Cas. 1; Cooper vs. Martin, 4 East 76.
The assumed relation of father by a step-'borough and a light company is a contract where

Where the subject matter of a suit between a
father entitles him, on the one hand, to the in it is provided that "it is mutually agreed by
services of his stepchildren and entitles them, and between the parties hereto, for themselves
on the other, to their support and education and their and each of their successors and assigns
without remuneration; Duffy vs. Duffy, that this contract shall go into effect on the thir-

tieth day of January, A. D. one thousand nine 44 Pa. 402. A stepfather cannot recover hundred and eleven and shall expire on the thirfor maintaining his stepchild unless he can tieth day of January, A. D. one thousand nine prove a contract with the guardian; Ruck- hundred and sixteen: provided, however, that man's Appeal, 61 Pa. 251. In Douglas' the borough may at its option renew this contract

for another period of five years from the thirtieth Appeal, 82 Pa. 173, Mr. Justice Sharswood day of January, A. D. one thousand nine hundred said, “The opinion of the court in Duffy vs. and sixteen, under the terms and conditions Duffy, 8 Wright 402, is direct to the hereof.” Held, the word "renew" as used in the point--that when a stepfather takes his contract should be coustrued to mean, “to con

tinue," or "extend." stepchildren to reside with him as one of his

Where the borough elects to exercise its option
family, while the one cannot claim for ser-

to renew, no additional contract or writing is
vices, the other is precluded from compensa- necessary to continue in force the provisions of
tion for expenditures." But a stepfather is said contracı.
under no legal obligation to support a step-

In such a case the jurisdiction of the Equity
child after the death of the mother; Court is not ousted by the Public Service Act
Brown's Appeal, 112 Pa. 18.

of July 26, 1913, P. L. 1374.

Bill in Equity
In Fitler vs. Fitler, 33 Pa. 50, the wife
of Fitler deserted him and took her child Motion to dismiss the bill.
with her. The husband later obtained a
divorce on the ground of desertion and the J. P. Carpenter for plaintiff.
mother brought an action of assumpsit for

J. Fred. Schaffer for defendant.
money expended in supporting and main-
taining the child. The father was able and Moser, J.-In this case the jurisdiction
willing to receive and support the child and of the court is challenged by the defendant

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who contends that the plaintiff has no con-i The right to renew or extend was an intetract with the defendant, and that the ques-gral part of the contract itselt and when the tion raised by the pleadings is one of service option was exercised the identical contract by a Public Service Corporation over which was continued for a period of five years; the Public Service Commission has exclusive Harding v. Sceley 148, Pa. 20. jurisdiction. In the agreement between the

In this case the question is not one of parties it is provided : “Third. It is mutu- service by a public service company which ally agreed by and between the parties here. I gives the Public Service Commission exclusto, for themselves and their and each of

ive jurisdiction. In the case of Bellevue tract shall go into effect on the thirtieth day Borough v. The Ohio Valley Water Comof January, A. D. one thousand nine hun pany, 245 Pa. 114, it was held that a con

tract as to water rates which was indeterdred and eleven and shall expire on the

minate or unlimited as to time was not thirtieth day of January, A. D. one thou- binding in the face of the declared statutory sand nine hundred and sixteen; provided, policy of the law that the Public Service however that the borough may, at its option, Commission shall have power to inquire inrenew this contract for another period of five years from the thirtieth day of January, in all such cases.

to and determine the reasonableness of rates

In the discussion the A. D. one thousand nine hundred and six

court say: "It is argued however, and teen, under the terms and conditions

with much force, that there is an existing hereof."

contract between the borough and the waOn the 26th day of May, A. D. 1916, ter company fixing the rates to be charged, the Borough Council of the Borough of and that the courts are always open to proSunbury passed the following resolution: tect the contractual right of the parties on “Whereas, the Borough of Sunbury has the one side, and to enforce their obligations on option, under said contract, to renew the the other. This is true, and if there was a same for another period of five years from valid binding contract in the present case, the date of the expiration of said contract, it would be necessary to sustain the contenviz.: January 30, 1916, now, therefore, betion of appellants." In our view of the it 'resolved that the Borough of Sunbury case at bar there has been a valid binding will and doth hereby elect to exercise its contract in force since January 30, 1911, said option to renew the said light contract and it is the contractual rights of the partfor a period of five years from the zoth day ies that the court is asked to inquire into, of January, 1916." Notice of this action to conserve and to adjudicate. The jurisof the Borough Council was served upon diction of the Equity Court is therefore not the president of the Northumberland County ousted by the act creating the Public Service Gas & Electric Company, the successor to Commission. As was said by the Court in the Edison Electric Illuminating Company, Bethlehem City Water Company v. Bethand was accepted by him on the 28th day of lehem Borough, No. 2, 253 Pa. 333, at p. January, 1916.

337, “The Public Service Act of 1913, P. L. Thus the contract between the parties. to 1374. by Article V, Section 29, expressly this action that went into effect on the states, 'Except as herein otherwise provided, thirtieth day of January, A. D. 191, has nothing in this act contained shall anyway been in force continuously from thence hith- abridge or alter the existing rights of action erto. It was the evident intention of the or remedies in equity or under the common parties that the word renew was used in the or statutory law of the Commonwealth, it agreement, and was understood by them to being the intention that the provisions of have been used to mean "continue" or "ex- this act shall be cumulative and in addition tend."

to such rights of action and remedies.'" The understanding of both parties was In view of the conclusions hereinabove that if the Borough desired, the identical disclosed and the authorities cited we see no contract might be continued for an addition- merit in the defendant's contention that the al five years. There was no thought of court has no jurisdiction in the plaintiff's another or a new agreement or writing be bill. We therefore direct that the case be ing entered into. The particular contract put on the equity trial list to be disposed of was to continue in force; the parties had no in accordance with law and the prescribed other additional contract in contemplation. I equity rules.

Walter B. Hays for rule.

Work Legal Trecord

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J. Edgar Small, contra.
Vol. XXXI THURSDAY, NOVEMBER 29, 1917.

No. 29

Ruling of the Court.
Metzel v. Metzel.

November 19, 1917. Ross, J.-The

admitted facts in this case*, and the facts Divorce--Allowance for Counsel Fees.

that have been controverted by the libel Where the admitted and controverted facts and the answert of the respondent to the make it incumbent for the respondent to justify libel, are matters that necessarily en ist the her desertion by proving the facts set forth in her answer, she is entitled to an order compell- careful study of the presiding judge. ing the libellant to contribute to the expense of The respondent has asked for jury trial the trial which his action has made incumbent after having denied many of the material alupon the respondent.

legations contained in the libel. We do not Rule to show cause why an order for think that under the existing state of affairs alimony and counsel fees should not be alimony can be allowed her, but we co conmade.

clude, after a careful consideration of the *The facts agreed are as follows:

town, Maryland, where he then moved, leaving 1. The respondent is now, and has been for the respondent in the City of York, Pennsvlvania, some years past, a milliner by trade, and is at the to continue in her own employment. The libelpresent time employed as such in the City of lant continued his occasional payments toward York, Pennsylvania, and earns wages of eight the respondent's support and maintained corresdollars per week.

pondence with her. This separation was in ac2. The libellant, at the time of instituting the cordance with the express wish of the libellant. action, was employed by the American Chain Co. In June, 1914, the respondent paid a visit to in the City of York, Pennsylvania, at an average the libellant at Hagerstown. Some time later wage of eleven dollars per week. Since the in- the libellant secured employment in Martinsburg, stitution of the action, the libellant has been West Virginia, and in August, 1915, the responddrafted into the military service of the United ent visited the libellant there and pleaded with States, and in such service will receive the sum of him to provide a home for them in Martinsburg. $30.00 per month, he being now in training at The libellant refused, urging that his earnings Camp Meade, in the State of Maryland.

were not sufficient to make that possible. From 3. The respondent holds title to three building then until November 4, 1915, the libellant and the lots situate in Manchester Township, York Coun- respondent continued to correspond with cach ty, Pennsylvania, purchased since the marriage other. During this interval, the libellant made of the parties for $24.700, $197.00 thereof having but one reni tince and .hat of ten dollars or less, been paid by the libellant.

toward the respondent's support. 4. The husehold furniture of the parties, 5. On about November 4, 1915, the res vondent purchased for about $400.00, was paid for in this received her lost letter from the libelliint. In proportion : $275.00 by the libellant, and $125.00 that letter the libellant acknowledged that he had by the respondent. In or about the month of been guilty of marital infidelity and remarked November, 1915, the respondent sold a portion of that if she, the respondent, knew the truth, she said household furniture and retained the proceeds would not care to live with him nor to have her thereof.

name associated with his. Shortly thereafter, 5. The parties have no children, and since the respondent went to Martinsburg, West VirNovember, 1915, the respondent has been sup- gioia, again to see her husband, but could not find porting herself exclusively by her own earnings, him and learned that he had left there and his having received no suppori from the libellant. whereabouts were unknown. *The answer set forth the following facts: 6. The respondent afterward learned, and

The respondent denies that on or about the here avers, that during the period from August, 3rd day of August, 1915, or at any other time. 1915, 10 November, 1915, the libellant at divers she deserted the libellant, and she denies that times had been guilty of adultery with a person she has absented herself from his habitation con- or persons to the respondent unknown, and that trary to his wishes or without his consent, or the libellant on certain occasions introduced the witbout reasonable cause.

said person as his, the libellant's wife, in order to 3. The repondent avers that from the time of avoid suspicion and to conceal the identiiy of his her marriage with the libellant until about April, paramour. 1914, the parties lived and co-habited in the City 7. From ·November 4, 1915, until now tie libelof York, Pennsylvania, but that the respondeni, lant has contributed nothing toward the support at her husband's request and in order to supple of the respondent; he has at no time offered a ment his earnings, continued to work at her trade home to the respordent; he has never riquested of milliner, and in large part supported bierself. her to live with him, nor has he comm nicated Since about November, 1912, the libellant has with the respondent either directly or in lirectly. paid the respondent but occasional sums toward In fact, since November, 1915, the responent has her support, never more than ten dollars in any not known the whereabouts of the libellant until one month.

recently, when he made his appearance in the 4. In about the month of April, 1914, the libel-city of York, Pennsylvania, and instituted the lant accepted a position in the City of Hagers- present action.

TA

2.

whole situation, that the libellant should be auditor, were that the receivers were entitled ordered to contribute to the expense of the to receive from the bank the deposit and trial which his action has made it incumbent bound to pay to the bank the note held by upon the respondent to resort to.

it when it came due, or such dividend as The libellant is ordered to pay to the re- the assets of the Company would afford. spondent for counsel fees the sum of $50.00, This we understood to be eonceded by the and for expenses to be incurred by a trial / receivers and the bank. It appears from and the subpoenaing of witnesses, &c. $25.00, the report that the receivers of the company within the next ten days.

demanded the deposit from the bank in August, 1913, and that payment was re

fused on the claim that the bank had C. P. of

Allegheny Co. applied the deposit to the note; and that

the receivers of the company allowed the Com. ex rel. v. Pittsburg Bank for matter to stand in that way without bringSavings.

ing suit.

The auditor seems to put some

stress upon the fact that no suit was brought Receiver--Deposit by Insolvent Company- by the receivers until the failure of the

Note in Bank-Sei-off-Receivers' Rights bank, but what importance he attributes to -Debtors and Creditors.

it is not very clear. We are unable to see

how delay short of six years on the part of The receivers of a bank have no rights greater the receivers to sue could affect their rights than or different from those of the bank itself at fixed as of July 9, 1913. But it is conthe moment of the creation of the receivership, and those were the rights, fixed by law, at the tended that the subsequent insolvency of time the depositor became insolvent, so that a de- the bank, and appointment of receivers for posit in a bank could not be set-off against a note it, in some way gave the receivers of the held by the bank, said note not being then due. It was immaterial whether the bank went into Coal Company different from what they

bank rights against the receivers of the the hands of a receiver before suit entered against the bank. The receivers of the depositor were had at any time before. It is plain, how. entitled to dividends awarded other depositors ever, that the receivers of the bank have no and exceptions to an auditor's report refusing rights greater than or different from those such dividends sustained.

of the bank itself at the moment of the The mutual rights of debtors and creditors of an insolvent corporation become fixed as of the creation of the receivership, and those were day when receivers were appointed.

the rights, fixed by law, on July 9, 1913. The receivers of an insolvent company were

The fallacy which underlies the auditor's entitled to receive a bank deposit as of the time conclusion is that the leaving of matters as of their appointment and this deposit cannot be they were by the receivers of the company set-off against a note not then due. They were bound to pay the note when it becomes due, or

had the same effect as if the Somerset such dividend as the assets of the company would Smokeless Coal Company itself had allowed afford. The appointment of a receiver for the the deposit to remain in the bank until after bank would not change these rights.

the maturity of the note. There can be no Exceptions to Auditor's Report.

question that if the Coal Company, not beHorace W. Davis for petitioner.

ing in the hands of receivers, had allowed

the deposit to remain until maturity of the October 25, 1917. SHAFER, P. J.-The note the bank would have had the right to proceeding is the distribution by an auditor, apply the deposit to the note; but by the of the assets of an insolvent bank. The appointment of receivers for the Coal Comfacts are simple and are not in dispute. On pany the mutual rights of the parties were July 9, 1913, the Somerset Smokeless Coal fixed as of that date, and the receivers of Company, being insoivent, was placed in the that Company were incapable of changing hands of receivers by the United States Dis- them, at least by any non feasance. trict Court. On that day it had on de- We are therefore clearly of the opinion posit in the Pittsburg Bank for Savings, that the receivers of the Coal Company are $11,459.60. At the same time the bank entitled to a dividend with other depositors held a note of the Coal Company, not then on their deposit as it stood on July 9, 1913. due, for $19,000.00.

The exceptions of the Coal Company are Under these circumstances the rights of sustained and the report is referred back the parties at that time according to the to the auditor to make distribution in ac. rules of law, is correctly stated by the cordance with this opinion.

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Waltrick's Executor v. Hockensmith. stood that either may withdraw on his or

her individual order during their joint lives, Pleadings -- Cortificate of Defosit-Surviv-l and that any balance remaining upon the orship.

death of either shall belong to the survivor. Plaintiff's decedent deposited six hundred dol- Jere Waltrick

-has deposited lar payable to the order of himself or another in this Bank

Six Hundred Dol(defendant), and received there for a certificate lars,

Dollars, payable to of deposit. This certificate contained a proviso that the money belongs to the payees jointly, it the order of self or Harry Hockensmith being understood that either may withdraw on his or her individual order during their joint on return of this Certificate propely enlives, and that anv balance remaining upon the dorsed...

$600.00 death of either shall belong to the survivor. After the death of the testator defendant present

10.50

CHAS. H. EMIG,

for Cashier. ed the certificate to the bank and drew the entire amount, with interest. Plaintiff brought suit, and Thirty days notice must be given for the the affidavit of defense alleged that the statement withdrawal of this deposit. did not disclose a sufficient cause of action, averring survivorship and consequent title to the fund

Interest 3 per cent. per annum if left 6 in question. Held, that a motion for judgment months. for plaintiff must be refused.

Interest 3 per cent. per annum if left 12 The language used in qualifying the general months. certificate of deposit implies an understanding or Not subject to check. agreement between the parties at the time the money was deposited. In the absence of any ex- [Endorsed]

HARRY HOCKENSMITH. planation of this agreement, judgment cannot be entered upon the proceedings.

The 3rd paragia.ph sets forth in subNo. 92 August Term, 1917.

stance, that, “After the death of said Jere

Waltrick, and before the probate of his will, Affidavit of defense raising matters of law on or about March 5, 1917, Harry A. to plaintiff's statement of claim.

Hockensmith, the defendant, presented the Motion for judgment for plaintiff.

said certificate of deposit at the said West

ern National Bank, and received thereon Cochran, Williams & Kain for motion.

from said bank, the sum of six hundred F. M. Bortner, contra.

dollars, and ten dollars and fifty cents interNovember 19th, 1917. Ross, J.--The est thereon, said sum of money beirg then first paragraph of plaintiff's statements sets and there the property of the estate of said forth substantially, that Jerry Waltrick died Jerry Waltrick, deceased, and not the propon the 3rd day of March, 1917, testate; his 'erty of the said Harry A. Hockensmith, and will was probated on the 14th of March, then and thereafter wrongfully and unlaw1917; the will named as the executors fully converted the said sum of money to thereof, Elmer Duke, Harry A. Hocken- the use of him, the said Harry A. Hockensmith and Guy Waltrick. Guy Waltrick smith.” renounced his right to act as executor and

The affidavit of defense does not specifiletters testamentary were duly granted to cally deny any of the plaintiff's aver ments, Elmer Duke, who is the present plaintiff, but claims that it does not disclose a suffiand Harry A. Hockensmith, who is the cient cause of action," ani does not show present defendant.

"any right of recovery in the plaintiff The 2nd paragraph recited that “on the against the defendant, for the following 13th day of July, 1916, Jerry Waltrick de- reasons: posited his own money to the amount of “I. The copy of the certificate of deposit six hundred dollars ($600.00) in the West- of the Western National Bank of York, ern National Bank”

"in the Pa., upon which the plaintiff bases his suit, City of York"

"and received distinctly shows that Jerry Waltrick, now from the said Western National Bank a deceased, deposited the sum of $600.00, certificate of deposit," as follows:

upon said certificate of deposit, payable to WESTERN NATIONAL BANK

the order of himself or Harry Hockensmith,

and by special endorsement thereon provided CERTIFICATE OF DEPOSIT

that either may draw gainst it during their York, Pa., July 13, 1916. joint lives and that any balance remaining The amount deposited in this account be-'at the death of either should belong to the longs to the payees jointly, it being under- survivor.

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No. 42191

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