[Leg. Int., Vol. 36, p. 412.]

COMMONWEALTH ex rel. GOODCHILD vs. JOHN MCCLINTOCK.

Execution-Real estate-Act of June 16, 1836, Sec. 115, P. L., page 662-Proceedings to obtain possession by sheriff's vendee, when person in possession claims under a third person-Upon oath made by person in possession that he does not hold under the defendant, but under a third person named, a magistrate will not be compelled by mandamus to enter judgment upon the verdict of the jury before summoning such third person to appear.

Sur rule for mandamus. Opinion delivered October 18, 1879, by BIDDLE, J.-It appears that in a proceeding under the act of June 16, 1836, to obtain possession of certain premises by a sheriff's vendee, it was stated under oath, by the person in possession of the premises, that a third person whom he named, not the defendant, claimed title to them, and that he held possession under her. The magistrate thereupon refused to give judgment on the verdict of the jury before issuing a summons for this third party to appear before him.

The court is now asked to issue a writ of mandamus to compel the magistrate to give judgment, without giving notice to the party, whom, it appears by the oath of the person in possession, he now holds under.

It is argued that if an affidavit had been filed with the magistrate by the person who made the oath, the magistrate would have been bound to withhold his judgment until after notice; but it is contended that as he only became cognizant of the claim of a third party by the testimony under oath before the jury of the person in possession, he had no right to regard it.

The words of the 115th section of the act are: "If the person in possession of the premises shall make oath or affirmation before the justices. that he does not hold the same under said defendant, but under some other person whom he shall name, the said justices shall forthwith issue a summons to such person, requiring him to appear before them, at a certain time therein named, not exceeding thirty days thence following. and if at such time the said person shall appear and make oath or affirmation, that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recognizance with sureties as aforesaid, in such case also the justice shall forbear to give judgment."

We find nothing in this section to support the contention of the complainant. If there is such a wide distinction as is contended for between making an oath and making an affidavit, we surely have no right to confound them, and to decide when the legislature said one they meant the other.

In a summary proceeding of this character it is of course of the highest importance that all parties interested should have notice. The act has carefully guarded this point, and at the same time has provided against unfounded claims, by requiring ample security to be first entered before the controversy can be continued. Before ousting the jurisdiction of the magistrate it is doubtless proper, if possible, to obtain an affidavit in the form set out in the act, and to compel a

recognizance; but the oath here taken has no such effect; it does not oust the magistrate's jurisdiction, but simply puts him upon his guard, so that he can determine whether the sheriff's vendee has purchased an undisputed title to the premises, or one against which adversary claims exist which the claimants are willing to enter into recognizances to establish. The effect of the oath is simply to delay judgment until after notice to the party supposed to be interested, and in no other possible way does it prejudice the rights of the vendee. If the party, when notified, does not make the oath and file the recognizance required by law, judgment is of course, no matter what the tenant may have sworn to, or in what form he may have sworn to it. The magistrate, having been informed under oath by the party in possession, that he did not hold under the defendant, but some other named person, was in the proper performance of his duty when he refused to proceed until that person had been notified to appear.

This mandamus is refused.

Daniel Dougherty and D. W. Dougherty, Esqs., for the commonwealth. Wm. H. Browne, Esq., for magistrate.

[Leg. Int., Vol. 36, p. 422.]

MILLER vs. McDONALD.

On a motion to amend plea, the court will not consider, as upon a demurrer, the plea proposed for substitution.

Sur rule to allow defendant to file substituted plea.

The plaintiff cited Watts vs. Ward, 6 W. N. C. 206, and contended that the proposed plea was manifestly bad, and that the statute, 4 Anne, c. 16, allows more than a single plea only by leave of court, which should not be granted when the plea proposed would, on motion, be stricken off, or, on demurrer, overruled.

Opinion delivered October 25, 1879, by

BIDDLE, J.-The question raised here is one of practice, rather than of pleading. It is whether, on a motion to amend, the court will consider, as on a demurrer, the plea which it is proposed to add. The statute of 4 Anne, c. 16, which permits more than one plea to the same matter, it is true, requires the leave of court that it may be filed, and this leave of court was at first strictly enforced, and the pleader required to justify his pleas before they were allowed. Very soon, however, in England the rule was relaxed, and the most inconsistent pleading permitted, as "not guilty," and "accord and satisfaction," in trespass, and non est factum and payment," to the same demand: Stephen on Plead. 275. Here, it is said, 1 T. & H. Pr. 469: "By the statute of 4 Anne, c. 16, secs. 4, 5, the defendant may plead whatever pleas he thinks proper, and in practice, without applying to the court for leave."

Our general practice is to allow the parties to present their case as they please, subject to "a rule to strike off "when their pleas are conspicuously defective, or a demurrer, when the matter is susceptible of doubt.

There are cases, as in Watts vs. Ward, 6 W. N. 206, where Court of Common Pleas No. 2 refused to allow special pleas to be filed, which

contained no other matters of defence than those of which notice had been given under plea of payment with leave, where leave is properly refused. We are not, however, disposed to consider, on this motion, elaborate objections of a technical character to voluminous pleas, which are the proper subject of a demurrer. If we consented to do so, and admitted the pleas to be filed, the controversy would not be at all advanced, for we would still have to hear a motion to strike them off, and, if that was refused, a demurrer. Should we refuse to permit the proposed amendments, it would not prevent their being presented in some shape until acceptable. This, we think, would change our wellestablished practice for no sufficient reason.

It is on this account, and not because we think the pleas will stand the test of a demurrer, that we permit them to be filed. W. Henry Smith, Esq., for the rule.

George M. Dallas, Esq., contra.

[Leg. Int., Vol. 36, p. 422.]

FREEMAN VS. STINE et al.

After testimony has been taken before an examiner, and closed, the defendant will not be allowed to reopen his case and present further testimony before the master.

In equity.

Sur rule to show cause why order of reference to master should not be modified.

When the cause was before the examiner, a rule had been taken upon the defendants to close their testimony within thirty days. The examiner's report afterwards was filed, and the cause referred to a master, he being authorized "to require the parties to produce before him such books and papers as he may deem necessary, and to examine the said parties, or any other person, if he shall see fit so to do."

Before the master the defendants proposed to continue the taking of testimony, and the plaintiff took this rule to strike out, in the order of reference to the master, the authority to take further testimony.

I. S. Sharp, Esq. (F. C. Brewster, Esq., with him), contended, in support of the rule, that the clause authorizing the master to take testimony had been improvidently made, and that as the reference to a master is itself a matter within the discretion of the court, which would not have taken more testimony except by reference back to the examiner upon cause shown, the master should not be permitted, upon his own motion, or upon that of the defendants, to reopen the case: Equity Rules, X., sections 59, 61; Kressler vs. Williams, 5 W. N. C. 97.

Rule XII., section 65, in Equity, was intended to apply to references on a partnership bill to state an account, a reference on a plea of former decree, or of another suit pending, and to cases where, upon cause shown to the court, it made an order for the taking of further testimony: Story's Eq. Pl., Sec. 700, ed. 1865.

G. T. Bispham, Samuel Gustine Thompson and W. W. Weigley, Esqs., contra.

Rule absolute.

[Leg. Int., Vol. 36, p. 442.]

SHEETS VS. WHITAKER.

The Court of Common Pleas in an issue devisavit vel non has no power to substitute a plaintiff for the party coming into the contest voluntarily who was named as plaintiff by the register, and who can protect himself by notice to the real parties in interest, from the future costs and expenses of the issue.

After plea pleaded, the attorneys of the parties maintaining the issue cannot be required to file warrants of attorney.

Sur petition of Daniel Sheets for substitution of another person as plaintiff.

Opinion delivered November 8, 1879, by

PEIRCE, J.-This is an application for the substitution of some other person as plaintiff in this issue, in place of Daniel Sheets, who, by writing filed, declines to act as such.

This brings up the question of the power of the Court of Common Pleas, in an issue sent into it by the register of wills, to try the validity of a paper purporting to be the last will of a decedent, to change the parties to it by substituting, as in this case, a plaintiff for the plaintiff' who was named as such when the issue came into this court.

We think this question is ruled by Dotts vs. Fetzer, 9 Barr, 88. The Supreme Court in that case said: "It is the business of the court which awards a feigned issue to name the parties to it, and prescribe the form of it; and as this was done by the Register's Court, the Common Pleas had no power to disturb it." The court further said: "The fixing on parties to give form to the issue is a matter of arbitrary arrangement; and those who have not an interest in the question to be tried, pay no costs. The real parties-those who have taken an active part in the contest-are sought out and compelled to pay by a writ of attachment."

The plaintiff in this case, Daniel Sheets, came into the contest voluntarily, and perhaps it might be said that he has no right to embarrass it by withdrawing from it before the issue is decided. If he wishes no longer to take an active part in the contest, there is a way open to him, through which he can protect himself from the future costs and expenses of the issue.

The Supreme Court, in Mumper's Appeal, 3 Watts & Sergeant, 441, said: "The person named as executor in the writing, when advised that its validity as a will is about to be contested, ought to give notice to those who are named in it as legatees or devisees, so that they may employ counsel, if deemed requisite, or authorize him to do so at their expense. If they, after being so notified, do not choose to employ counsel, or authorize any to be employed on their behalf, they must abide the consequences, and will have no reason to complain if the writing be not established as a will, seeing they were not willing to encounter the expense with which the employment of counsel would have been attended."

The same principle is affirmed in Royer's Appeal, 1 Harris, 569. If, therefore, the plaintiff in this issue desires to protect himself from the future responsibility and expenses of the contest, he should give notice to the parties interested in the controversy that he has withdrawn from it, and will assume no further responsibility of carrying it on.

As he can thus protect himself from further responsibility in respect of it, we see no reason, as indeed we have no power, to withdraw his name as party plaintiff to the issue.

The petition is dismissed.

There was also a rule granted in this case to show cause why the attorneys of the parties maintaining the issue should not file their warrants of attorney. This application comes too late. A rule on plaintiff's attorney to file his warrant must be moved for before plea pleaded; Mercier vs. Mercier, 2 Dallas, 142; Campbell vs. Galbreath, 5 Watts, 429.

Rule discharged.

H. McMiller, Esq. for petitioner.

S. Dickson, Esq., contra.

[Leg. Int., Vol. 36, p. 443.]

RALSTON vs. RALSTON.

The court has no jurisdiction in a suit for divorce by a husband, brought within a jurisdiction foreign to the only joint domicil from which the husband removed but in which the wife remained.

The refusal of a wife to accompany her husband changing his domicil from Wilming ton to Philadelphia, is not such wilful and malicious desertion within the meaning of the act of 1815, as will entitle him to a divorce after the lapse of two years, without further communication between them.

Rule for a divorce. Opinion delivered November 29, 1879, by BIDDLE, J.--That the domicil of the husband is not by implication that of the wife when the purpose is to destroy her marital rights was decided in Bishop vs. Bishop, 6 Casey, 416; Colvin vs. Reed, 5 P. F. S. 375; Reel vs. Elder, 12 P. F. S. 308. And that although the law of the place of the actual bona fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce, it means the domicil of both parties. And that nothing but the possession of the person of the wife before or at the time of the proceeding can warrant another state to subject her to its jurisdiction. The injured party must seek redress in the forum of the defendant, unless the defendant has removed from what was before the common domicil of both.

The case here is almost identical with that of Colvin vs. Reed, The husband and wife resided in Wilmington, Delaware; he gets employment in Philadelphia, and finds his return to his home irksome and inconvenient. He asks his wife to accompany him to Philadelphia to live, and she replies that she cannot leave her mother. At the end of two years, without further communication, he asks to be divorced bere, on the ground of wilful and malicious desertion on her part. As he had never previously provided a home for his wife, but had lived with her at her mother's, he had placed his wife under obligations to her mother, in addition to those which a child naturally owes to a parent. It certainly was natural, therefore, that she should at least hesitate to obey his first summons. His first summons, however, appears to have been his last, for he does not pretend that he ever repeated the request. It is rather stretching a point, therefore, we think, to hold that this was persisting in her desertion for two years, even if we brought ourselves