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cause he stated more than he was actually “That the said libellant is under the required to do.
order of the Court of Dauphin County for
maintenance for three dollars per week.” There is no merit in the contention that the statement does not set forth the items of "That the facts alleged in the libel are his loss. As a matter of fact, it does do this not true.”' in setting forth the number of the pigeons and the value of each. We think the state. Court to make an order directing the said
The prayer of the petition is for the ment complies with all the requirements of the act of assembly, and discharge the rule libellant to pay her a reasonable sum for the to show cause why it should not be stricken necessary expenses, costs and counsel fees off.
for conducting said proceedings in divorce.
On the same day a rule was granted on
the libellant, to show cause. The rule was Anderson v. Anderson
made returnable to the eighth day of May,
1916. Divorce--Counsel Fees.
On the 8th day of May, 1916, the libellThe respondent denied the facts set forth in ant filed an answer to the last named rule the libel, and asked for an allowance for counsel by which he asserts his inability to pay the fees and expenses. Subsequently libellant asked leave to withdraw the suit. The facts showed expenses and counsel fees petitioned for by that the husband had been ordered by the court the respondent. of another county to pay respondent a weekly
On the 19th day of February, 1917, allowance; and that he had begun proceedings in divorce in still another county. Held, that the Harry B. Anderson filed a petition in this petition for allowance must be granted.
court, setting forth, "that he is the libellant The meandering of the libellant in his effort to lin the above stated case." shift jurisdiction not having been explained, "Your petitioner and libellant desires to justice requires that he shall pay the this court and those incurred by his wife in fol- withdraw and discontinue his said suit for lowing him from another couuty so that she might divorce," and "asks for leave to withdraw vindicate herself from the charges he has placed and discontinue said suit for divorce upon on record against her.
the payment of costs in the said divorce Rule to show cause why counsel fees and case.” necessary expenses should not be allowed
The petition was ordered to be filed and respondent.
a rule was granted directed to the respondRule to show cause why libellant should ent to show cause, returnable the first Monnot be permitted to withdraw his action for day of March, 1917. divorce.
On February 26, 1917, the respondent Logan & Logan and Fred. C. Miller filed her answer to the rule. for respondent.
Subsequently, testimony under the sevK. W. Altland for libellant.
eral rules granted, was regularly taken and
read as depositions to the court at the time June 25, 1917. Ross, J.-Harry B. Anderson filed his libel in divorce, and several rules.
argument was made for and against the obtained an award of subpoena from this Court against his wife, Annie Anderson.
By the records and the depositions, the On the third day of April, 1916, the sub- following facts are established. poena was made returnable to the first After the libellant and respondent had Monday of June, 1916.
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 "That she has neither the means nor the
her husband, for her maintenance. income to carry on the aforesaid proceedings That Court made an order on the husin divorce."
band to pay for the support of his wife, the
sum of threc dollars per week and that QUARTER SESSIONS order is now in effect.
Q. S. of
Schuylkill Co. Subsequently, the husband began his action against his said wife for divorce in
Com. v. Andruchek this court.
Grand Jury--Re-submission of Bill. The wife promptly filed her petition for by a Grand Jury should be the end of the prose
The return of ignoramus made on indictment expenses and counsel fees, alleging her in- cution originating in the information returned by ability to pay for the defence which she the committing magistrate. If public interests alleges she has to that action of her hus- require further action it should be by a new war
rant on a new information except where the District band.
Attorney is justified in preferring an indictment. Subsequently and before those controver- and if their returns are in proper form and there
Grand Jurors constitute a part of the Court sies had been disposed of by the Court the is no evidence of misconduct or irregularity athusband filed another libel in divorce from tending their acts and where there is no allegahis said wife, in the Court of Cumberland iion or proof that a bill was ignored in conseCounty, Pennsylvania.
quence of oversight, mistake or fr&ud, or where
no grave emergency or urgent public need requires It is evident from the depositions that the it a bill should not be recommitted to a Grand
one committed to a subsequent husband has some property and income;
Grand Jurv. and is much better equipped to earn money
Petition for Re-submission of Bill. than his wife is.
April 2, 1917. Koch, J.--An indict- . This Court has no light on the merits of
ment was submitted to the grand jury sitting the 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 that they had testified to the same before to follow him from Dauphin County so that the grand jury. The petitioner prayed for 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 compelled to 'still further follow his action 407, "On principle, the return of "ignor
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 i 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
Com. v. Rodgers ihrown out in consequence of oversight, mistake or fraud."
Costs— Imposition on Prosecutor. In Commonwealth v. Whitaker, 25 Defendant was acquitted of the larceny of a 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 The fact that a single newspaper may be of to a certain extent, constitute a part of the very small money value, was no sufficient ground court. As such they act under oath, being upon which to ignore the true nature of the act sworn 'well and diligently to inquire and
of taking it or impose any part of the costs on
the publishers. true presentment make.' Having been in
The prosecutor having had good grounds for structed as to their duties, under the obliga- its prosecution should not have been made liable tion of their oaths, they sit and deliberate for any portion of the costs. privately, and if their returns to the court
set aside so much of the be in proper form and there be no evidence verdict as imposed part of the costs on the of misconduct or irregularity on their part, prosecutor. the presumption of good faith, good conduct S. C. Frey for motion. and regularity which attends the acts, find- June 18, 1917. WANNER, P. J.-In ings and conclusions of all having like this case the jury very unjustly imposed onedeliberative and discretionary powers, should half of the whole costs on 'The Dispatch obtain. The fact that they sit and deliber- | Publishing Company, the prosecutor. The ate privately renders it impossible for the evidence showed very clearly the taking of court to control, direct and review their a copy of the York Daily by the defendant proceedings as they may those which are had from the place where it had been left for in their presence. And the fact that from delivery to a subscriber, and the actual fact time immemorial they have so sat and delib- of the taking was not denied by the defenderated may be taken as conclusive of the ant, though he made a statement intended fact that it is not and never was intended to palliate his guilt in so doing. that the court should so direct, control and The fact that a single newspaper may review their proceedings."
of very small money value, was no sufficien In Commonwealth v. Priestly, 24 County ground upon which to ignore the true Court Reports 543, President Judge Lind- nature of the act of taking it or impose any sey, in a well considered opinion, refused and part of the costs of the prosecution upon declined a motion to send an indictment to The Dispatch Publishing Company. Its enanother grand jury where there were no tire issue and its entire business is based allegations of irregularity, oversight, mistake upon the delivery of single newspapers to its or fraud. And the late Judge Weidman, individual subscribers. The loss to this when a member of this court in Common- subscriber was but one of many instances wealth v. Allen, 14 County Court Reports which in the aggregate have a very material 546, held the same view, to the effect, that, effect both upon the
the where there is no allegation or proof that public. We saw nothing in the evidence the bill was ignored in consequence of over- which justified the imposition of costs upon sight, mistake or fraud, or where no grave The Dispatch Publishing Company. emergency or urgent public need requires it, good grounds for its prosecution and should a bill should not be recommitted to a grand not have been made liable for any portion jury or a new one committed to a subse- of the costs. As the court has the power to quent grand jury.
prevent any injustice by setting aside that Whether or not a true bill is made out by portion of the verdict of the jury, it becomes the evidence is alone for the grand jury to lour duty to do so."
Work Legal Record by said Defendant, without stating in what
particular the proofs were objectionable, nor
does said affidavit aver that any suggestion THURSDAY, JULY 5, 1917
was made to Plaintiff wherein said proofs of
loss were not in accordance with the terms COMMON PLEAS
of the Policy.
C.W. A. Rochow for motion.
Stewart & Gerber, contra.
June 25, 1917. Ross, J.-This case has Fire Insurance - False Answers-Particu- been before the court on the defendant's larity.
demurrer to plaintiff's statement to claim.
1 Plaintiff brought suit on a policy of insurance,
After argument the demurrer was refused averring, loss by fire. The affidavit of defense and the defendant was ordered to plead alleged false answers in the application to the over within fifteen days from the date of questions as to whether the property insured was that ruling; 30 York LEGAL RECORD 106. encumbered, and as to whether the defendant had ever suffered a loss by fire before. HELD, that a
The case is now before the court on the motion for judgment for want of a sufficient affi- plaintiff's motion for judginent for want of davit of defense must be refused.
sufficient affidavit of defense. Since the An affidavit of defense which is as specific as adoption of the practice under the Act of the plaintiff's statement, is sufficient to prevent summary judgment.
May 25th, 1887, P. L. 271, judgment may No. 123, August Tern, 1915.
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.
The substance of the affidavit of defense under no duty to deny a liability not fairly is found in the Court's opinion in this case. arising from the statement;” Barker v. Fair
The reasons of the motion for judgment child et al., 158 Pa. 246. for want of a sufficient affidavit of defense In the present case the plaintiff's stateare as follows:
ment “claims of the defendant" 1. The affidavit of defense is made and the sum of one thousand nine hundred and sworn to by W. H. Brodbeck, Secretary of forty dollars, with interest from the 30th said Defendant Company and does not state day of November, 1914, according to a that said Defendant Company, "has a just, certain policy of insurance, in writing, extrue, full and legal defense to all or part of lecuted and delivered to the plaintiff by plaintiff's claim."
defendant, on or about the latter part of 2. There is no averment in said affidavit, January or beginning of February, 1914. that Defendant expects to be able to prove “A copy of the policy (as averred by the the facts set out in said affidavit.
statement) is annexed to the statement and 3. The averment in said affidavit that made a part thereof, as "Exhibit A.” Plaintiff is guilty of fraud and false swear- The statement also avers (among other ing in making up his proof of loss, does not things) “That on the 23rd day of Septemshow how or in what manner said fraud was ber, 1914, at Warrington Township, the perpetrated upon Defendant.
premises in said policy of insurance men4. That said affidavit avers that the tioned were destroyed by fire” various sums claimed by the Plaintiff are "on September 23rd, 1914, at the Borough grossly excessive, but does not state sufficient of Dillsburg, said County of York, Pa., the facts upon which to base a claim of how the plaintiff gave notice to the defendant of the defendant Company arrives at such a con- fire and loss, and on or about September clusion.
zoth, 1914, at the City of York, York 5. The affidavit of defense is vague, the County, Pa., did deliver to the defendant a averments general in their character, and particular account of the plaintiff's loss and gentrally insufficient to prevent judgment. damage, and also of the value of the prem
6. The affidavit avers that the proof of ises insured, and when and how the fire loss furnished by said Plaintiff was rejected loriginated to the best of the plaintiff's
the ence -pon
tion I to that
knowledge and annexed to said notice was a "$50.00 on his horse gears and harness, certificate under the hand and seal of a while on premises. justice of the peace, of Jonathan Cassel, "$250.00 on his horses, not exceeding who lived most contiguous to the property $125.00 for any one animal. destroyed by fire, stating that he was acquainted with the character and circum- $40.00 for any one animal.
"$120.00 on his live stock, not exceeding stances of the insured, and without fraud, he, the plaintiff, had sustained a loss or
“All situate in Warrington Township, damage upon the premises insured to the York County, Pa. sum of one thousand, nine hundred and "Standard lightning clause attached. forty dollars, yet the defendant has not paid "Attached to and forming part of policy to the plaintiff the said sum of money by it No. 26972 of the Codorus and Manheim insured"
"nor repaid or reim- Mutual Protection Insurance Company of bursed him for the loss sustained by the York, Pa." said fire or any part thereof"
The written application of plaintiff for “contrary to the form and effect of the policy insurance, which is printed on the back of of insurance."
the policy, among other things, includes the A reference to the copy of the policy following questions and answers: “17. Is annexed to the statement as "Exhibit A," the property hereby insured incumbered by discloses that the policy “does insure" * * * mortgage, judgment or any other lien, and “against all direct loss or damage by fire if so, to what amount?" "No." and lightning, except as hereinafter provided, "14. Have you ever suffered loss of proto an amount not exceeding two thousand, perty by fire? If so, were you insured and nine hundred and thirty-five dollars on the in what company ?" following property while located and con- The affidavit of defense specifically denies tained as described herein, and not else the truth of those answers, and avers that, where, to wit:
at the time the plaintiff answered the said "$4 50.00 on his two-story frame, shingle interrogations there were two judgments roofed dwelling, and additions thereto ad- entered as liens against the property of the joining and communicating.
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
It also avers that the answer made to the 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 are specific, and if properly proven will rehousekeeping, the property of the assured quire an explanation which cannot be derived or any member of the family. All while from the plaintiff's statement. contained in the above described building.
"On the hearing of a rule for judgment "$1100.00 on his frame bank barn and for want of a sufficient affidavit of defense additions thereto.
the court may not go outside of the case as "$200.00 on his frame grain and hay presented by the claim and affidavit, to shed or stable.
consider extraneous facts, either in support "$75.00 on his frame hog stable and corn of or against the line of defense disclosed;" crib.
Allegheny City v. Charlotte McCaffrey, “$140.00 on his farm machinery and im- 131 Pa. 137; Beruhardt v. Taylor, 223 Pa. plements and pleasure vehicles while on 307. premises.
It will be observed that the suit is brought "$250.00 on his produce, consisting prin to recover for loss by fire, on a policy which cipally of hay, grain, straw and other pro specifically designates the amounts placed on ducts of a farm, while on premises.
clearly specified property, as $450.00 on his