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 compensaboth of its parents, and we cannot compel tion." When the divorce was granted no its stepfather 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 responsible for her maintenance and support. Chancellor Kent says in the Second Volume of its "Commentaries on American Law," page 192, that, if a stepfather takes his wife's children into his own house, he is then considered as standing in loco parentis. The defendant is therefore directed to 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. In Lantz vs. Frey and wife, 14 Pa. 201, "The defendant intermarried with the female plaintiff's mother, after which In the case before us, the child appearing to be deserted by both its parents, I have no doubt that the primary responsibility for its support, under such circumstances, now rests on the father. The assumed relation of father by a stepfather entitles him, on the one hand, to the services of his stepchildren and entitles them, on the other, to their support and education without remuneration; Duffy vs. Duffy, 44 Pa. 402. A stepfather cannot recover for maintaining his stepchild unless he can prove a contract with the guardian; Ruckman's Appeal, 61 Pa. 251. In Douglas' Appeal, 82 Pa. 173, Mr. Justice Sharswood said, "The opinion of the court in Duffy vs. Duffy, 8 Wright 402, is direct to the point--that when a stepfather takes his stepchildren to reside with him as one of his family, while the one cannot claim for services, the other is precluded from compensation for expenditures." But a stepfather is under no legal obligation to support a stepchild after the death of the mother; Brown's Appeal, 112 Pa. 18. In Fitler vs. Fitler, 33 Pa. 50, the wife of Fitler deserted him and took her child with her. The husband later obtained a divorce on the ground of desertion and the mother brought an action of assumpsit for money expended in supporting and main-! taining the child. The father was able and willing to receive and support the child and COMMON PLEAS Northumberland Co. Borough of Sunbury v. Northumberland tract. borough and a light company is a contract wherein it is provided that "it is mutually agreed by and between the parties hereto, for themselves and their and each of their successors and assigns tieth day of January, A. D. one thousand nine that this contract shall go into effect on the thirhundred and eleven and shall expire on the thirtieth day of January, A. D. one thousand nine hundred and sixteen: provided, however, that for another period of five years from the thirtieth the borough may at its option renew this contract day of January, A. D. one thousand nine hundred and sixteen, under the terms and conditions hereof." HELD, the word "renew" as used in the contract should be coustrued to mean, "to con Where the subject matter of a suit between a tinue," or "extend." Where the borough elects to exercise its option to renew, no additional contract or writing is necessary to continue in force the provisions of said contract. In such a case the jurisdiction of the Equity Court is not ousted by the Public Service Act of July 26, 1913, P. L. 1374. Bill in Equity. Motion to dismiss the bill. J. P. Carpenter for plaintiff. J. Fred. Schaffer for defendant. MOSER, J.-In this case the jurisdiction. of the court is challenged by the defendant who contends that the plaintiff has no con- The right to renew or extend was an intetract with the defendant, and that the ques- gral part of the contract itself 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. Seeley 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- gives the Public Service Commission exclusive jurisdiction. In the case of Bellevue Borough v. The Ohio Valley Water Company, 245 Pa. 114, it was held that a contract as to water rates which was indeterminate or unlimited as to time was not to, for themselves and their and each of their successors and assigns, that this contract shall go into effect on the thirtieth day of January, A. D. one thousand nine hundred and eleven and shall expire on the thirtieth day of January, A. D. one thousand nine hundred and sixteen; provided, however that the borough may, at its option, renew this contract for another period of five years from the thirtieth day of January, in all such cases. In the discussion the A. D. one thousand nine hundred and sixteen, under the terms and conditions with much force, that there is an existing court say: "It is argued however, and hereof." binding in the face of the declared statutory policy of the law that the Public Service Commission shall have power to inquire into and determine the reasonableness of rates 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, be tion 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 30th 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 the president of the Northumberland County Gas & Electric Company, the successor to the Edison Electric Illuminating Company, and was accepted by him on the 28th day of January, 1916. Thus the contract between the parties to this action that went into effect on the thirtieth day of January, A. D. 1911, has been in force continuously from thence hitherto. It was the evident intention of the parties that the word renew was used in the agreement, and was understood by them to have been used to mean "continue" or "extend." The understanding of both parties was that if the Borough desired, the identical contract might be continued for an additional five years. There was no thought of another or a new agreement or writing be ing entered into. The particular contract was to continue in force; the parties had no other additional contract in contemplation. diction of the Equity Court is therefore not ousted by the act creating the Public Service Commission. As was said by the Court in Bethlehem City Water Company v. Bethlehem Borough, No. 2, 253 Pa. 333, at p. 337, "The Public Service Act of 1913, P. L. 1374. by Article V, Section 29, expressly states, 'Except as herein otherwise provided, nothing in this act contained shall anyway abridge or alter the existing rights of action or remedies in equity or under the common or statutory law of the Commonwealth, it being the intention that the provisions of this act shall be cumulative and in addition to such rights of action and remedies.'" In view of the conclusions hereinabove disclosed and the authorities cited we see no merit in the defendant's contention that the court has no jurisdiction in the plaintiff's bill. We therefore direct that the case be put on the equity trial list to be disposed of in accordance with law and the prescribed equity rules. Divorce-Allowance for Counsel Fees. Where the admitted and controverted facts make it incumbent for the respondent to justify her desertion by proving the facts set forth in her answer, she is entitled to an order compelling the libellant to contribute to the expense of the trial which his action has made incumbent upon the respondent. Rule to show cause why an order for alimony and counsel fees should not be made. *The facts agreed are as follows: I. The respondent is now, and has been for some years past, a milliner by trade, and is at the present time employed as such in the City of York, Pennsylvania, and earns wages of eight dollars per week. 2. The libellant, at the time of instituting the action, was employed by the American Chain Co. in the City of York, Pennsylvania, at an average wage of eleven dollars per week. Since the institution of the action, the libellant has been drafted into the military service of the United States, and in such service will receive the sum of $30.00 per month, he being now in training at Camp Meade, in the State of Maryland. 3. The respondent holds title to three building lots situate in Manchester Township, York County, Pennsylvania, purchased since the marriage of the parties for $24.700, $197.00 thereof having been paid by the libellant. 4. The household furniture of the parties, | purchased for about $400.00, was paid for in this proportion: $275.00 by the libellant, and $125.00 | by the respondent. In or about the month of November, 1915, the respondent sold a portion of said household furniture and retained the proceeds thereof. Walter B. Hays for rule. November 19, 1917. Ross, Ross, J.-The admitted facts in this case, and the facts that have been controverted by the libel and the answert of the respondent to the libel, are matters that necessarily enlist the careful study of the presiding judge. The respondent has asked for jury trial after having denied many of the material allegations contained in the libel. We do not think that under the existing state of affairs alimony can be allowed her, but we do conclude, after a careful consideration of the town, Maryland, where he then moved, leaving the respondent in the City of York, Pennsylvania, to continue in her own employment. The libellant continued his occasional payments toward the respondent's support and maintained correspondence with her. This separation was in accordance with the express wish of the libellant. In June, 1914, the respondent paid a visit to the libellant at Hagerstown. Some time later the libellant secured employment in Martinsburg, West Virginia, and in August, 1915, the respondent visited the libellant there and pleaded with him to provide a home for them in Martinsburg. The libellant refused, urging that his earnings were not sufficient to make that possible. From then until November 4, 1915, the libellant and the respondent continued to correspond with each other. During this interval, the libellant made but one remi tnce and hat of ten dollars or less, toward the respondent's support. 5. On about November 4, 1915, the respondent received her last letter from the libellant. In that letter the libellant acknowledged that he had been guilty of marital infidelity and remarked that if she, the respondent, knew the truth, she would not care to live with him nor to have her 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-ginia, again to see her husband, but could not find porting herself exclusively by her own earnings, having received no support from the libellant. The answer set forth the following facts: 2. The respondent denies that on or about the 3rd day of August, 1915, or at any other time. she deserted the libellant, and she denies that she has absented herself from his habitation contrary to his wishes or without his consent, or without reasonable cause. 3. The repondent avers that from the time of her marriage with the libellant until about April, 1914, the parties lived and co-habited in the City of York, Pennsylvania, but that the respondent, at her husband's request and in order to supplement his earnings, continued to work at her trade of milliner, and in large part supported herself. Since about November, 1912, the libellant has paid the respondent but occasional sums toward her support, never more than ten dollars in any one month. him and learned that he had left there and his whereabouts were unknown. 6. The respondent afterward learned, and here avers, that during the period from August, 1915, to November, 1915, the libellant at divers times had been guilty of adultery with a person or persons to the respondent unknown, and that the libellant on certain occasions introduced the said person as his, the libellant's wife, in order to avoid suspicion and to conceal the identity of his paramour. 7. From November 4, 1915, until now the libellant has contributed nothing toward the support of the respondent; he has at no time offered a home to the respondent; he has never requested her to live with him, nor has he communicated with the respondent either directly or in lirectly. In fact, since November, 1915, the respondent has not known the whereabouts of the libellant until 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. ordered to contribute to the expense of the trial which his action has made it incumbent upon the respondent to resort to. The libellant is ordered to pay to the respondent for counsel fees the sum of $50.00, and for expenses to be incurred by a trial and the subpoenaing of witnesses, &c.,$25.00, within the next ten days. C. P. of Allegheny Co. whole situation, that the libellant should be auditor, were that the receivers were entitled to receive from the bank the deposit and bound to pay to the bank the note held by it when it came due, or such dividend as the assets of the Company would afford. This we understood to be eonceded by the receivers and the bank. It appears from the report that the receivers of the company demanded the deposit from the bank in August, 1913, and that payment was refused on the claim that the bank had applied the deposit to the note; and that the receivers of the company allowed the matter to stand in that way without bringing 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-Set-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 to sue could affect their rights fixed as of July 9, 1913. But it is conand 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. Com. ex rel. v. Pittsburg Bank for Savings. The receivers of a bank have no rights greater than or different from those of the bank itself at the moment of the creation of the receivership, It was immaterial whether the bank went into the hands of a receiver before suit entered against the bank. The receivers of the depositor were entitled to dividends awarded other depositors and exceptions to an auditor's report refusing such dividends sustained. The mutual rights of debtors and creditors of an insolvent corporation become fixed as of the day when receivers were appointed. The receivers of an insolvent company were entitled to receive a bank deposit as of the time of their appointment and this deposit cannot be set-off against a note not then due. They were bound to pay the note when it becomes due, or such dividend as the assets of the company would afford. The appointment of a receiver for the bank would not change these rights. Exceptions to Auditor's Report. Horace W. Davis for petitioner. October 25, 1917. SHAFER, P. J.-The proceeding is the distribution by an auditor, of the assets of an insolvent bank. The facts are simple and are not in dispute. On July 9, 1913, the Somerset Smokeless Coal Company, being insolvent, was placed in the hands of receivers by the United States District Court. On that day it had on deposit in the Pittsburg Bank for Savings, $11,459.60. At the same time the bank held a note of the Coal Company, not then due, for $19,000.00. Under these circumstances the rights of the parties at that time according to the rules of law, as correctly stated by the bank rights against the receivers of the Coal Company different from what they had at any time before. It is plain, however, that the receivers of the bank have no rights greater than or different from those of the bank itself at the moment of the creation of the receivership, and those were the rights, fixed by law, on July 9, 1913. The fallacy which underlies the auditor's conclusion is that the leaving of matters as they were by the receivers of the company had the same effect as if the Somerset Smokeless Coal Company itself had allowed the deposit to remain in the bank until after the maturity of the note. There can be no question that if the Coal Company, not being in the hands of receivers, had allowed the deposit to remain until maturity of the note the bank would have had the right to apply the deposit to the note; but by the appointment of receivers for the Coal Company the mutual rights of the parties were fixed as of that date, and the receivers of that Company were incapable of changing them, at least by any non feasance. We are therefore clearly of the opinion that the receivers of the Coal Company are entitled to a dividend with other depositors on their deposit as it stood on July 9, 1913. The exceptions of the Coal Company are sustained and the report is referred back to the auditor to make distribution in accordance with this opinion. Waltrick's Executor v. Hockensmith. [stood that either may withdraw on his or her individual order during their joint lives, Pleadings Certificate of Deposit-Surviv-and that any balance remaining upon the orship. death of either shall belong to the survivor. Jere Waltrick lars, dorsed... 100 -has deposited Six Hundred DolDollars, payable to ..... $600.00 Plaintiff's decedent deposited six hundred dollar payable to the order of himself or another in this Bank (defendant), and received therefor a certificate 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 properly enlives, and that anv balance remaining upon the death of either shall belong to the survivor. After the death of the testator defendant presented the certificate to the bank and drew the entire amount, with interest. Plaintiff brought suit, and the affidavit of defense alleged that the statement did not disclose a sufficient cause of action, averring survivorship and consequent title to the fund in question. HELD, that a motion for judgment for plaintiff must be refused. The language used in qualifying the general certificate of deposit implies an understanding or agreement between the parties at the time the money was deposited. In the absence of any explanation of this agreement, judgment cannot be entered upon the proceedings. No. 92 August Term, 1917. 10.50 CHAS. H. EMIG, for Cashier. Thirty days notice must be given for the withdrawal of this deposit. Interest 3 per cent. per annum if left 6 months. Interest 3 per cent. per annum if left 12 months. Not subject to check. [Endorsed] HARRY HOCKENSMITH. The 3rd paragraph sets forth in substance, 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. Motion for judgment for plaintiff. Hockensmith, the defendant, presented the said certificate of deposit at the said Western National Bank, and received thereon from said bank, the sum of six hundred dollars, and ten dollars and fifty cents interNovember 19th, 1917. Ross, J.--The est thereon, said sum of money being 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¦ letters testamentary were duly granted to Elmer Duke, who is the present plaintiff, and Harry A. Hockensmith, who is the present defendant. " The affidavit of defense does not specifically deny any of the plaintiff's averments, but claims that it "does not disclose a sufficient cause of action," and does not show "any right of recovery in the plaintiff against the defendant, for the following reasons: The 2nd paragraph recited that "on the 13th day of July, 1916, Jerry Waltrick deposited his own money to the amount of "1. 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, "and received distinctly shows that Jerry Waltrick, now deceased, deposited the sum of $600.00, upon said certificate of deposit, payable to the order of himself or Harry Hockensmith, and by special endorsement thereon provided that either may draw against it during their joint lives and that any balance remaining at the death of either should belong to the survivor. City of York" No. 42191 |