before." To the same effect are: Manussier v. Wright, 158 Ill. App. 214; Tower v. Stanley, 220 Mass. 429, 107 N. E. 1010; Munroe v. Stanley, 220 Mass. 438, 107 N. E. 1012; Hunter v. Allen, 111 N. Y. S. 820; Dumbrow v. Gelb, 130 N. Y. S. 182; Clay, etc., Banking Co., v. Dobyns, 213 Mo. App. 468, 255 S. W. 946; Remedial Plan v. Ott, 199 Ky. 161, 250 S. W. 825. v. Simon, 279 Pa. 118; Green v. Dick & at the suit of either party, was not "comShope, 72 Pa. Superior Ct. 266. The plete and regular" upon its face, because statement of the agent that the lamps the blank had not been filled in before would save electricity was but an opin- negotiation. The court here points out ion, which was not sufficient to convict that the instrument is "rendered negotihim of fraudulent intent. He may have able after the blanks are filled and not believed that the lamps would save electricity. There is nothing in the evidence to show that the opinion was not honest. See Blair v. Laflin, 127 Mass. 518. The defendants, however, contended that the plaintiff was not a holder in due course for another reason, which in our estimation shall control our decision. The instrument in question is as follows: "New York City, Ñ. Y., June 15, 1922. On Dec. 15 * * * of ourselves," etc. It will be noticed that no definite time of payment is fixed. The December 15 upon which payment was to be made might very well be December 15 of the year 1922, but it may C. P. of also be of some subsequent year. pay to the order Section 52, of the Negotiable Instruments Act of 1901, provides: "A holder in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face." The instrument in suit cannot be considered to be complete and regular upon its face. It is true that under Section 14, of the act, the person in possession of the instrument had a prima facie authority to complete it by filling in the blank in accordance with the understanding of the parties or the authority given by the defendants at the time of execution, but that was not done. The instrument was accordingly non-negotiable in that it was not payable upon demand or at a fixed or determinable future time. Accordingly, and defense that defendants have against the Campbell Lamp Company must be held to be good, as against this plaintiff, whose rights cannot rise higher than that of the drawers. We have not found, nor has our attention been called to, any Pennsylvania case upon this point. But there are a number of cases upon the point in other jurisdictions, wherein their negotiable instruments act is uniform with ours. In re, Philpott's Estate, 151 N. W. 325, 169 Ia. 555, the note was payable in "four * * * ," and it was held that this instrument, although reformable in equity And now, to wit, February 1, 1926, the rule for a new trial is made absolute. Lancaster Co. Archibald v. Archibald Change of Act of May 8, 1919, P. L. 164. Where a husband changes his residence from a consideration of convenience or business advantage it is the duty of his wife to accompany him, if he provides a home for her; but where he merely lives part of the offers to provide a home if she will come, which she refuses to do, this does not constitute desertion on her part. time over week-ends at a hotel, and at most A traveling salesman who leaves a former residence and makes his "headquarters" at another town, boarding there at certain hotels which from time to time he visited over week-ends, receiving mail there and keeping some of his clothes there, should not be considered as having established a new residence there, for the purpose of divorce. Rule to show cause why divorce should not be granted. Divorce refused. Willis G. Kendig, for libellant. Landis, P. J., June 26, 1926.-—This is an application for divorce on the ground of desertion. The libellant is a traveling salesman, and as he says was married in 1900 and lived with his wife in Philadelphia until about three years ago. She is living there at the present time. Lancaster county is in his territory, and he therefore selected it as the most logical * * place to live, but his wife refused to person hath been or shall be injured as come, and upon this he bases his charge aforesaid, the husband or the wife may of desertion. He never secured a home exhibit his or her petition or libel to the here, though he says he offered to do so, judges of the court of common pleas of but when he was in this locality he the proper county, where the injured stopped at either the Hotel Pennsylvania party resides * " Did then the or the Stevens House in this city. Until libellant have a residence in this county? about July, 1924, he was at times at the He says he boarded at certain hotels former place, and since that time he says which from time to time he visited, and he was practically every week or two at that he received mail here, and kept some the Stevens House, and he claims his of his clothes. How much time he spent residence there. He said he was on the here does not appear, and he certainly assessor's list of the fourth ward, but the never voted here. He seems to have list was not presented, and it is not con- been only a transient visitor, coming and tended that he ever voted. Some of the going as suited his convenience. In Shelwitnesses testified that he had his "head- don v. Forsman, 17 Lanc. L. Rev. 85, it quarters" in Lancaster, and that he came was said: "Residence is made up of here over "week-ends and the like," but facts and intentions, that is an abode with just how often he was actually in the the intention of remaining." In White v. city was not proven. Brown, 1 Wal. Jr., Judge Grier says: In Beck v. Beck, 163 Pa. 649, it was as it is called, is to prevail until the party "The original domicil or forum originis decided that "a husband has a right to has not only acquired another, but has change his home if his business, his com- manifested and carried into execution an fort or his convenience requires it, if he intention of abandoning his former domprovides another suitable place of resi- icil and taking another as his sole domdence, and if his wife refuses to accom- icil. A man cannot be considered a vagpany him to the new home without cause, abond or person without any domicil, for her refusal constitutes desertion for the domicil of origin is not abandoned which a divorce will be decreed"; and in until a new one has been intentionally Monahan v. Auman, 39 Sup. 150, Hen- and actually acquired. In the case bederson, J., delivering the opinion of the fore us the intention of the defendant apcourt, said: "The fact that a husband has | gone to another place than that in which character, depending upon the circumpears to be altogether of an indefinite he has recently been living does not stances which might be developed after create a presumption of desertion. He he went into another state as to the final may lawfully change his residence. The course which he might pursue." In Dulin wisdom of such a change is not a sub- v. Dulin, 33 Sup. 4, it was decided that ject for the judgment of the court. "On a libel for divorce it must affirmThere would be a serious abridgment of atively appear that there has been a clear personal liberty if this right were sub- intention on the part of the libellant to ject to legal review. Where a husband | changes his residence from a considera- abandon a former residence, and to make tion of convenience or business advan- this state a permanent one with domiciltage it is generally speaking the duty of iary intent, coupled with an actual bona his wife to accompany him, where he fide residence for one year within the provides a home for her, and her refusal commonwealth previous to the filing of so to do without legal excuse amounts to desertion." Here, however, the libellant the petition, or libel. Each requirement never did provide a new home in Lan- is essential and all must combine to caster for his wife. At most he offered warrant the courts in making a decree in to do so, and she refused to come. divorce.” Therefore this case does not fall within the authorities, and the facts do not in my judgment make out a case of desertion. Under the Act of May 8, 1919, P. L. 164, Sec. 1, it is provided that "If any In my judgment, this standard has not been met, and for this and the former reason, the application for divorce must be refused. Divorce refused. C. P. of Lancaster Co. that every person before selling milk in the City of Lancaster shall be licensed to do so by the board of health of the city. Hoar v. City of Lancaster, et al. It is also provided in the ordinance that Health law Sale of milk-City ordi "each license shall be granted on the condition that it is subject to suspension for violation of any provision of this ordinance or of any regulation thereunder." A license to sell milk in the City of Lancaster was issued to Clinton O. Hoar, the plaintiff. On July 15, 1926, notice nance regulating-Regulations to enforce ordinance-Power to make-Presump- was served on him by the milk supervisor tion as to purity. A city ordinance regulating the sale of milk in the City of Lancaster provided inter alia that milk shall not be sold "produced by diseased cows," that "cows which react to of the board of health directing him to discontinue receiving milk from the following farmers: Henry H. Hoover, John M. Kreider, John L. Kreider and Harrison Eshleman, "as they have failed the tuberculin test shall be considered dis- to comply with regulation No. I passed eased" and that "the presence of a diseased by the board of health," as authorized by animal in the herd shall be prima facie evi dence that the milk of the diseased animal is the ordinance of January 7, 1925. On sold." Under these provisions and without July 19, 1926, at a special meeting, the other authority, the local board of health adopted a regulation requiring that all milk board of health authorized its officers to sold in the city must be from "herds tuber- proceed to revoke the license of said C. culin tested under federal or state super-O. Hoar, the plaintiff. vision" or where application has been filed for such test. The ordinance further provided for the enforcement of the ordi The ordinance describes seven different kinds of milk that shall not be sold in this city. One of them is milk "produced by diseased cows," which it pro nance by the board of health as a milk inspection bureau, through a chief and as sistants to be appointed, who shall annually test all cows furnishing milk for the city. The plaintiff, a milk dealer in Lancaster vides shall not be sold nor delivered in City, was notified by the board of health to cease the sale of milk produced by certain farmers named who had failed to make application for a federal or state test under the said regulation, on threat of revocation of his license, and he filed a bill in equity to enjoin such action. the City of Lancaster, and that "for the purposes of this ordinance, cows which react to the tuberculin test shall be considered diseased." It also provides that "the presence of a diseased animal in a herd from which milk is sold shall be prima facie evidence that the milk of the diseased animal is sold contrary to law." It authorizes the board of health to "make all necessary regulations for enforcing this ordinance which are not inconsistent with the provisions contained herein." It is contended by the defendants that these provisions of the ordinance in question authorized and empowered the board of health of Lancaster City to adopt regulation No. 1, for the violation. of or failure to comply with which by the producers from whom the plaintiff Paul Mueller, John M. Groff and John purchased milk, it proposes to revoke E. Malone, for plaintiff. H. L. Raub, for defendants. the license of the plaintiff. It is conceded by the defendants that the board of health is not given authority by any Hassler, J., August 10, 1926.-The act of assembly or other ordinance to sale of milk in the City of Lancaster is adopt regulations to enforce the provisregulated by an ordinance approved Jan- ions of the ordinance of January 7, uary 7, 1925. One of its provisions is 1925. Assuming to act on the authority given ordinance and the regulations passed in to it by this ordinance of January 7, pursuance of it. He or a duly author1925, the board of health made regula- ized deputy or assistant must, at least tion No. 1, which provides that, after four times in each year, inspect all aniJanuary 1, 1926, all milk furnished for mals, stables, milk rooms, etc., used in sale in Lancaster must be from herds the production of milk for sale in Lan"tuberculin tested under federal and caster City, and from time to time invesstate supervision, or from herds whose tigate the health of all those who handle owners have filed their applications for such milk. For the purpose of enforcing test." The only provision in the ordi- the provisions of the ordinance and the nance which this regulation No. 1 is in- regulations passed under it, the said tended to enforce is that which prohibits "chief of the milk inspection bureau shall the sale of milk produced by diseased annually cause to be tested with tubercows, which are defined to be cows which culin all cows furnishing milk for the react to the tuberculin test and cows of City of Lancaster." In order that the a herd that contains a diseased animal. chief of the bureau and his assistants As the board of health does not have authority to make regulations for the sale of milk other than that given in the ordinance regulating its sale in this city it follows that, if the regulation which it has made is not necessary to enforce the provisions of the ordinance forbidding the sale of milk produced by diseased cows, or if it is inconsistent with the provisions of the ordinance, it is void and cannot be enforced, for the ordinance provides that such regulations must be necessary to enforce, and not be inconsistent with, its provisions. shall not be interfered with in the performance of these duties, Section 3 provides that all applications for license board of health, its deputies and assistshall contain an agreement that the board of health, its deputies and assistants, shall have the right to inspect the cows, premises and methods of said pro ducer." As the duty of testing cows with tuberculin to ascertain whether they are diseased, so as to prevent the sale in the City of Lancaster of milk produced by diseased cows, is thus expressly imposed on the board of health or its officers, the imposition of this duty upon the producer of the milk, or of requiring him to make application to have his cows tested under federal or state supervision, is not necessary, and the board of health did not have authority to make it, as it could only make regulations that are necessary to enforce the provisions of the ordinance. There is no presumption that any milk offered for sale in this city is from a diseased cow, or from a cow of a herd containing a diseased animal, so that, before its sale can be prevented, it must be shown to have come from such a source, It is a well-settled rule of law that, when one asserts or depends on a fact, the burden is on him to prove it. If, therefore, the board of health wants to ex- If the regulation was passed to imclude the sale of any milk in this city, the pose upon the producer the duty of burden under this rule is on it to show having his cows tuberculin tested, and to that the milk is one of the kinds of milk relieve the officers of the board of health which the ordinance forbids the sale of. from performing that duty which the orBut the duty of the board of health to dinance expressly imposed upon them, ascertain whether the milk is such as can- the board of health exceeded the authornot be sold in this city does not depend ity given to it in the ordinance, as no upon the general rule which we have just authority is given to it to shift its restated, as it is clearly set forth in the sponsibilities and duties on others. As fourth section of the ordinance. It is the ordinance requires such test to be provided there that, for the purpose of made by the officers of the board of carrying out the provisions of the ordi- health, a regulation requiring it to be nance, the board of health shall be con- done by others is inconsistent with the stituted a milk inspection bureau, and provisions of the ordinance, and thereshall appoint a chief of the bureau and fore void. as many assistants as are necessary. The We are of the opinion that the board. chief shall enforce the provisions of the of health exceeded the power given to it com in the ordinance in making regulation. The lien dating from the visible No. 1, because it is not necessary to en-mencement upon the ground of the work of building the structure, which was prior to force the provisions of the ordinance, the appointment of the receiver, he would and also because it is inconsistent with take subject to a mechanics' lien and any other lien. its provisions, and that therefore the regulation is void and unenforcible. The words of Section 2, of the Mechanics' Lien Act of 1901, relate, solely to cases in which a trustee undertakes to improve a property and are plainly confined to preventing a contract for an improvement, made by a trustee, from having the effect of subjecting the property to a mechanics' lien when such contract has not been duly auth orized. The ordinance authorizes the chief of the milk inspection bureau to revoke a license for the violation of any of its provisions or of the regulations made thereunder. It is admitted that neither the plaintiff nor the producers from When the right to a mechanics' lien acwhom he purchased milk have violated crued before the appointment of a receiver any of the provisions of the ordinance. of the corporate owner, a claim may be filed The failure of the producers to make ap- to the appointing court for leave so to do. to keep the lien alive without first applying plication to have their herds tested, which is the only violation of the regulation charged, is a requirement contained in Discharged. the reguglation, which we think is void, and such failure, therefore, would not justify the board of health either in refusing to grant a license to the plaintiff or in revoking it since it has been granted. Motion to strike off mechanics' lien. Edgar B. Murdoch and Donald R. Hart, for plaintiff. Burnside & Burnside, for receiver of the Consumers Service Co. Before Brownson, P. J., and Cummins, J. We are not passing upon the merits of the regulation adopted by the board of health, nor deciding that the City of Brownson, P. J.. February 8, 1926. Lancaster does not have power to auth- The Chambers Lumber Company filed a orize the board of health to make such mechanics' lien claim against certain. regulation. We only decide that, in the ordinance of January 7, 1925, the board property, naming as the defendants the of health is not authorized to make the Consumers Service Company, et al. Wilregulation it has made. liam G. Heiner, receiver of the Consum We, therefore, refuse the motion to ers Service Company, under an appointdissolve the preliminary preliminary injunction ment made on January 19, 1925, has obgranted in this case, and continue it un-tained a rule to strike off the claim. Sevtil final hearing. eral reasons for this are assigned in the petition for the rule, all of which except one have been taken out of the case by an amendment filed under Sec. 51 of the Mechanics' Lien Act of 1901, P. L. 431. The one reason which the amendment does not affect, and which was the only Chambers Lumber Co. v. Jones, matter discussed at the argument, is et al. found in the 4th paragraph of the peti- * * * Mechanics' lien-Property in hands of receiver appointed by the U. S. District Court-Construction of the Mechanics' | jected to a lien." In support of this we Lien Act of 1901. are referred to Sec. 2, of the Mechanics' Lien Act, which provides that "no lien |