cause he stated more than he was actually required to do.

There is no merit in the contention that the statement does not set forth the items of his loss. As a matter of fact, it does do this in setting forth the number of the pigeons and the value of each. We think the statement complies with all the requirements of the act of assembly, and discharge the rule to show cause why it should not be stricken off.

Anderson v. Anderson

Divorce-Counsel Fees.

The respondent denied the facts set forth in the libel, and asked for an allowance for counsel fees and expenses. Subsequently libellant asked leave to withdraw the suit. The facts showed that the husband had been ordered by the court of another county to pay respondent a weekly allowance; and that he had begun proceedings in divorce in still another county. HELD, that the petition for allowance must be granted.

The meandering of the libellant in his effort to shift jurisdiction not having been explained, justice requires that he shall pay the expenses in this court and those incurred by his wife in following him from another couuty so that she might vindicate herself from the charges he has placed on record against her.

Rule to show cause why counsel fees and necessary expenses should not be allowed respondent.

Rule to show cause why libellant should not be permitted to withdraw his action for divorce.

"That the said libellant is under the order of the Court of Dauphin County for maintenance for three dollars per week."

"That the facts alleged in the libel are not true."

The prayer of the petition is for the Court to make an order directing the said libellant to pay her a reasonable sum for the necessary expenses, costs and counsel fees for conducting said proceedings in divorce.

On the same day a rule was granted on the libellant, to show cause. The rule was made returnable to the eighth day of May, 1916.

On the 8th day of May, 1916, the libellant filed an answer to the last named rule by which he asserts his inability to pay the expenses and counsel fees petitioned for by the respondent.

On the 19th day of February, 1917, Harry B. Anderson filed a petition in this court, setting forth, "that he is the libellant in the above stated case." * "Your petitioner and libellant desires to withdraw and discontinue his said suit for divorce," and "asks for leave to withdraw and discontinue said suit for divorce upon the payment of costs in the said divorce case."

The petition was ordered to be filed and a rule was granted directed to the respondent to show cause, returnable the first Monday of March, 1917.

On February 26, 1917, the respondent

Logan & Logan and Fred. C. Miller filed her answer to the rule. for respondent.

K. W. Altland for libellant.

June 25, 1917. Ross, J.-Harry B. Anderson filed his libel in divorce, and obtained an award of subpoena from this Court against his wife, Annie Anderson.

On the third day of April, 1916, the subpoena was made returnable to the first Monday of June, 1916.

Subsequently, testimony under the several rules granted, was regularly taken and read as depositions to the court at the time several rules. argument was made for and against the

By the records and the depositions, the following facts are established.

After the libellant and respondent had been legally married they lived together as

On the 24th of April, 1916, the respond-husband and wife for over five years, when, ent appeared by counsel, who presented her for some reason unknown to the Court, petition, which set forth, among other things, they separated and the wife went to reside that she had entered her appearance by at- in or about Harrisburg, Dauphin County, torney in response to the service on her of Pennsylvania, where she brought an action, the subpoena in divorce. in the Court of Dauphin County, against her husband, for her maintenance.

"That she has neither the means nor the income to carry on the aforesaid proceedings. in divorce."

That Court made an order on the husband to pay for the support of his wife, the

sum of three dollars per week and that order is now in effect.

Subsequently, the husband began his action against his said wife for divorce in this court.

Q. S. of

QUARTER SESSIONS

Schuylkill Co.

Com. v. Andruchek

Grand Jury-Re-submission of Bill.
The return of ignoramus made on indictment

a Grand Jury should be the end of the prose

The wife promptly filed her petition for by expenses and counsel fees, alleging her in-cution originating in the information returned by ability to pay for the defence which she alleges she has to that action of her husband.

Subsequently and before those controver sies had been disposed of by the Court the husband filed another libel in divorce from his said wife, in the Court of Cumberland County, Pennsylvania.

It is evident from the depositions that the husband has some property and income; and is much better equipped to earn money than his wife is.

the committing magistrate. If public interests require further action it should be by a new warrant on a new information except where the District Attorney is justified in preferring an indictment.

Grand Jurors constitute a part of the Court is no evidence of misconduct or irregularity atand if their returns are in proper form and there tending their acts and where there is no allegation or proof that a bill was ignored in consequence of oversight, mistake or fr&ud, or where no grave emergency or urgent public need requires it a bill should not be recommitted to a Grand Jury nor a new one committed to a subsequent Grand Jury.

Petition for Re-submission of Bill.

This Court has no light on the merits of ment was submitted to the grand jury sitting April 2, 1917. KOCH, J.-An indictthe libellant's suit to obtain his divorce. for the March Term, 1917 but was ignored. The substance of the respondent's undenied The prosecutor thereupon presented his answers and depositions which were filed in petition, stating that he had appeared and support of her contention must, as a matter testified before the grand jury concerning of fact be taken as true. The meandering the charge above stated and that he was of the libellant in his effort to shift jurisdic- corroborated in his statements by two wittion, has not been explained. The facts, nesses. Attached to the petition of the and his lack of candor, have impelled this prosecutor are the separate affidavits of his Court to conclude that justice requires that two witnesses stating briefly their knowledge he be ordered to pay the expenses of his of the incriminatory features of the case and action in this court which caused his wife to follow him from Dauphin County so that she might vindicate herself from the charges a resubmission of the bill of indictment. which he has placed upon the records of this The reasons for resubmitting the same bill Court against her, if she can. She has been of indictment or sending a new indictment compelled, by his actions, to employ counsel before the grand jury must be stronger to secure her rights in this County and to than those stated in the present application. make trips from Harrisburg, Dauphin Nothing appears before us that would warCounty, (where she has successfully invoked rant the proceeding. The Supreme Court the aid of the Court as against her husband) said, in Rowand v. Commonwealth, 82 Pa. to York, and, from the evidence, will be

that they had testified to the same before the grand jury. The petitioner prayed for

compelled to still further follow his action 407, "On principle, the return of "ignorcompelled to still further follow his action amus" made on an indictment by a grand in Cumberland County.

jury should be the end of the prosecution, The decree of the Court is that Harry B. originating in the information returned by Anderson, the libellant, pay to Annie Ander- the committing magistrate. The defendant son, the respondent, the sum of fifty dollars has complied with the condition of his recogas counsel fees for services rendered in this nizance. The prosecution has failed with case, and twenty dollars for her individual the failure of the bill. The sureties of the expenses. When that has been done to the defendant are released and he is entitled to satisfaction of the Prothonotary, and all be discharged. In analogy to the rules by other record costs have been paid, the suit which other judicial proceedings are governin divorce may be withdrawn and discon-ed, this should be the end of the case, tinued as prayed for and the rules granted founded on the complaint he was called on, shall be disposed of in accordance with this in the first instance, to answer. If the decree. public interests should require that further

action should be taken against him, it should say and not the Court. It requires only be by a new warrant on a new information, twelve votes of the grand jury to find a true except in those rare cases (which should be bill and the work of the grand jury will not defined as accurately as possible), in which be reviewed except in cases of irregularity, the District Attorney is justified in preferr-mistake or fraud.

ing an indictment without a preliminary There is no allegation in the petition that hearing. Such a rule would not interfere would warrant the prayer thereof. with the power of the judges of the Quarter The petition is refused. Sessions, on proper notice, to recommit to the same or a succeeding grand jury a bill thrown out in consequence of oversight, mistake or fraud."

Com. v. Rodgers

Costs-Imposition on Prosecutor. Defendant was acquitted of the larceny of a

The fact that a single newspaper may be of very small money value, was no sufficient ground upon which to ignore the true nature of the act of taking it or impose any part of the costs on the publishers.

The prosecutor having had good grounds for its prosecution should not have been made liable for any portion of the costs.

Motion to set aside so much of the verdict as imposed part of the costs on the prosecutor.

S. C. Frey for motion.

In Commonwealth v. Whitaker, 25 County Court Reports 42, Criswell, P. J.newspaper, and one-half of the whole costs placed in refusing a motion for resubmission verdict must be set aside. on the prosecutor. HELD, that that portion of the said, "Grand jurors, for some purposes and to a certain extent, constitute a part of the court. As such they act under oath, being sworn 'well and diligently to inquire and true presentment make.' Having been instructed as to their duties, under the obligation of their oaths, they sit and deliberate privately, and if their returns to the court be in proper form and there be no evidence of misconduct or irregularity on their part, the presumption of good faith, good conduct and regularity which attends the acts, findings and conclusions of all having like deliberative and discretionary powers, should obtain. The fact that they sit and deliberate privately renders it impossible for the court to control, direct and review their proceedings as they may those which are had in their presence. And the fact that from time immemorial they have so sat and deliberated may be taken as conclusive of the fact that it is not and never was intended that the court should so direct, control and review their proceedings."

In Commonwealth v. Priestly, 24 County Court Reports 543, President Judge Lindsey, in a well considered opinion, refused and declined a motion to send an indictment to another grand jury where there were no allegations of irregularity, oversight, mistake or fraud. And the late Judge Weidman, when a member of this court in Commonwealth v. Allen, 14 County Court Reports 546, held the same view, to the effect, that, where there is no allegation or proof that the bill was ignored in consequence of oversight, mistake or fraud, or where no grave emergency or urgent public need requires it, a bill should not be recommitted to a grand jury or a new one committed to a subsequent grand jury.

Whether or not a true bill is made out by the evidence is alone for the grand jury to

June 18, 1917. WANNER, P. J.-In this case the jury very unjustly imposed onehalf of the whole costs on The Dispatch Publishing Company, the prosecutor. The evidence showed very clearly the taking of a copy of the York Daily by the defendant from the place where it had been left for delivery to a subscriber, and the actual fact of the taking was not denied by the defendant, though he made a statement intended to palliate his guilt in so doing.

The fact that a single newspaper may be of very small money value, was no sufficien ground upon which to ignore the true nature of the act of taking it or impose any part of the costs of the prosecution upon The Dispatch Publishing Company. Its entire issue and its entire business is based upon the delivery of single newspapers to its individual subscribers. The loss to this subscriber was but one of many instances which in the aggregate have a very material effect both upon the company and upon the public. We saw nothing in the evidence which justified the imposition of costs upon The Dispatch Publishing Company. It had good grounds for its prosecution and should not have been made liable for any portion of the costs. As the court has the power to prevent any injustice by setting aside that portion of the verdict of the jury, it becomes our duty to do so."

by said Defendant, without stating in what particular the proofs were objectionable, nor does said affidavit aver that any suggestion No. 8 was made to Plaintiff wherein said proofs of loss were not in accordance with the terms of the Policy.

The case is now before the court on the plaintiff's motion for judgment for want of sufficient affidavit of defense. Since the adoption of the practice under the Act of May 25th, 1887, P. L. 271, judgment may be taken for want of an affidavit of defense, or of a sufficient affidavit of defense; L. S. Motion for judgment for want of a suffi- Herb et al v. Littaning Ins. Co., 138 Pa. cient affidavit of defense.

knowledge and annexed to said notice was a
certificate under the hand and seal of a
justice of the peace, of Jonathan Cassel,
who lived most contiguous to the property
destroyed by fire, stating that he was ac-
quainted with the character and circum-
stances of the insured, and without fraud,
he, the plaintiff, had sustained a loss or
damage upon the premises insured to the
sum of one thousand, nine hundred and
forty dollars, yet the defendant has not paid
to the plaintiff the said sum of money by it
insured"
* * "nor repaid or reim-
bursed him for the loss sustained by the
said fire or any part thereof"
"contrary to the form and effect of the policy
of insurance."

*

A reference to the copy of the policy annexed to the statement as "Exhibit A," discloses that the policy "does insure" *** "against all direct loss or damage by fire and lightning, except as hereinafter provided, to an amount not exceeding two thousand, nine hundred and thirty-five dollars on the following property while located and contained as described herein, and not elsewhere, to wit:

"$450.00 on his two-story frame, shingle roofed dwelling, and additions thereto adjoining and communicating.

"$50.00 on his horse gears and harness, while on premises.

"$250.00 on his horses, not exceeding $125.00 for any one animal.

"$120.00 on his live stock, not exceeding $40.00 for any one animal.

"All situate in Warrington Township, York County, Pa.

"Standard lightning clause attached. "Attached to and forming part of policy No. 26972 of the Codorus and Manheim Mutual Protection Insurance Company of York, Pa."

The written application of plaintiff for insurance, which is printed on the back of the policy, among other things, includes the following questions and answers: "17. Is the property hereby insured incumbered by mortgage, judgment or any other lien, and if so, to what amount?" "No."

"14. Have you ever suffered loss of property by fire? If so, were you insured and in what company?" "No."

The affidavit of defense specifically denies the truth of those answers, and avers that, at the time the plaintiff answered the said entered as liens against the property of the interrogations there were two judgments entered as liens against the property of the said J. H. W. Shreiner insured by the said "$300.00 on his household and kitchen policy as follows: Peter Warner, No. 659, "$300.00 on his household and kitchen January Term, 1912, entered March 29, furniture, useful and ornamental, family 1912, for $250. One of Jacob M. Gotwearing apparel and materials for same, shall, No. 394 August Term, 1911, entered provisions, printed and bound books, music, October 13, 1911, for $400. watches, jewelry in use, silver and plated. ware, china, glass, queens and crockeryware, 14th interrogatory was not true, for the pictures, paintings, engravings and mirrors reason that the said J. H. W. Shreiner had (with their frames at not exceeding cost), a fire loss in the month of May, 1914, by travelling apparatus, musical and scientific the burning of his stable on North Market instruments, statuary, ornaments, sewing Street, in the town of Mechanicsburg, machines, sporting outfits, fuel and family Cumberland County, Pa. Those averments stores and all articles generally used in housekeeping, the property of the assured or any member of the family. All while contained in the above described building.

"$1100.00 on his frame bank barn and additions thereto.

"$200.00 on his frame grain and hay shed or stable.

"$75.00 on his frame hog stable and corn crib.

"$140.00 on his farm machinery and implements and pleasure vehicles while on premises.

"$250.00 on his produce, consisting principally of hay, grain, straw and other products of a farm, while on premises.

It also avers that the answer made to the

are specific, and if properly proven will require an explanation which cannot be derived from the plaintiff's statement.

"On the hearing of a rule for judgment for want of a sufficient affidavit of defense the court may not go outside of the case as presented by the claim and affidavit, to consider extraneous facts, either in support of or against the line of defense disclosed;" Allegheny City v. Charlotte McCaffrey, 131 Pa. 137; Beruhardt v. Taylor, 223 Pa. 307.

It will be observed that the suit is brought to recover for loss by fire, on a policy which specifically designates the amounts placed on clearly specified property, as $450.00 on his