The

judgment note and bond, and Hacker that the money was loaned to the wife signed it, and then took it over to his and not to her husband, and that she rewife, who also signed it. It was then quested that the money should be approreturned to the bank, and the bank gave priated as her husband should direct. her credit for the amount of the loans. The wife denied that she had anything Hacker says that Mr. Kready told him to do with negotiating the loan. to get her check, and, having done this, he deposited it in the bank, and it was for the defendant. In Kemper v. Richcase was submitted to a jury, who found credited to his account on his bank book,ardson, 72 Sup. 115, the plaintiff, who never saw any of the officers about this E. Richardson for a loan of $200.00. was a note broker, was applied to by W. loan. Hacker made the arrangements Kemper agreed to loan the money on a and acted as go-between in the transacRichardson and note signed by tion; but Mrs. Hacker says she knew mother as surety. Before the money was what she was signing, that she had told paid, it was, however, discovered that him she would help him, and that it was the mother

Mrs. Hacker was never at the bank and

a loan for his benefit.

his

was a married woman. Thereupon Kemper refused to loan Since the passage of the Acts of As- Richardson the money, but said: "If sembly enlarging the powers of married your mother will borrow the money for women, they are enabled to contract you, all right." A note was then predebts on their own behalf on the credit pared for the mother to sign, and a of their separate estate. This is, how-check for the amount, to the order of ever, subject to some limitations, in-Mrs. Richardson, less some expenses, cluded in which is the absolute prohibi- was put in a sealed envelope and given tion from becoming surety for another. to the son, who, upon her endorsement, A married woman may create a loan for secured the money. Upon this state of herself and do what she pleases with the facts, it was held that the court below money after she borrows it. It has never should have opened the judgment. Orbeen held that, where a married woman lady, J.. delivering the opinion of the borrows money on her own account, the court, said: "The law will look through lender has any concern in relation to the all disguises and subterfuges and will use she makes of it; but she cannot be open the judgment where the testimony come surety, and her liability is not to be shows a manifest intention to avoid the determined alone by the form of the ob-provisions of an Act of Assembly. ligation into which she enters. Inquiry jury could fairly find that the device in may be made as to its real object, and it this case was a transparent attempt to will be declared void, notwithstanding make the mother surety or guarantor for its form, if in fact it is a device to evade the money her son was borrowing from the restriction imposed by the statute. Kemper. We have nothing to do with Class & Nachod Brewing Co. v. Rago, terms of the transaction as between 240 Pa. 470. Kemper and the son. The law leaves In Manor National Bank v. Lowery, them to their own method of dealing 242 Pa. 559, a judgment was entered on with each other, but it places a barrier petition of a wife, and an issue was around a married woman to protect her granted to try the facts alleged. At the from all kinds of deceit and impositrial, it appeared that the husband had tions." In Oswald v. Jones, 254 Pa. 32. arranged with the cashier of the bank it appeared that the husband of a marfor a loan of $1,500.00. The wife was ried Woman made application to the taken to the bank by her husband, and payee for a loan, to enable him to engage there, with him, having signed a judg-in the hotel business, and offered his ment note, she immediately left. A cer- wife as surety; that the payee refused to tificate was issued to the husband for make the loan in that form, but made it $1,000.00, and $300.00 was issued for directly to the wife, knowing the purthe payment of a mortgage on her land, pose for which it was to be applied; that so that the bank might have a first lien. the money was in fact invested in the The balance was credited to the hus- husband's business, and the wife re band. The cashier of the bank testified ceived no benefit from the transaction,

and that the payee never dealt directly D. H. Wilson and Edmund R. Castelwith her, but exclusively with the hus- lucci, for respondent. band. In a per curiam opinion, the court November 22, 1920, McKeen, J. J.said: "The testimony conclusively shows This is a libel in divorce A. V. M., instithat the whole transaction was a trans- tuted by the above-named libellant parent device adopted by the plaintiff against above-named respondent. The

and the husband to evade an express statutory enactment; to create, by form, a liability, where by law none in fact existed. As she received no benefit, as the plaintiff was in no way deceived, she was under neither moral nor legal obligation to pay, and there should have been no verdict against her'; Patrick & Co. v. Smith, 165 Pa. 526."

cause of action averred is cruel and barbarous treatment and indignities to the person. An answer was filed to the libel by respondent and the matter was submitted to a master who recommended that a decree issue as prayed for in the

libel.

The respondent filed nine exceptions of which, the fifth, seventh and eighth, to the report of the master, only three need be considered. The fifth exception It would, therefore, appear to us that reads: "The master's recommendations this judgment must be opened. The de-are contrary to law and the weight of fendant's testimony clearly shows that the evidence." The seventh exception: Mrs. Hacker received no benefit from "That the master erred in finding as folthe loans; that the money was used by lows: The master finds, therefore, that her husband for his own purposes, and the averments of the libel have been susthat the officials of the bank knew that tained and that the acts of the respondit was to be so used. This, if believed ent, as complained of in the libel, were by a jury, is sufficient to sustain her con- committed without provocation on the tentions and avoid the note; for, under part of the libellant, there being no testisuch circumstances, she was accommo-mony supporting the suspicions of the dation maker and surety for her hus-respondent as to the unfaithfulness of band, and it would be an attempt indi- the libellant. The master accordingly rectly to do that which the Act of As-recommends that decree issue as sembly expressly prohibits. In our judg-prayed for in the libel." The eighth exment, the issue should be tried by a jury, ception: "That the master erred in not and we, therefore, make the rule to open finding as a matter of law that the libel the judgment absolute as to Celesta M. of the libellant should be dismissed." Hacker.

a

A careful examination of the notes of testimony discloses that the libellant and

Rule made absolute as to Celesta M. respondent were married and lived to

Hacker.

C. P. of

Cassara v. Cassara

Divorce-Cruel and barbarous

gether for a period of about eight years. The libellant was engaged in the real estate business and had dealings with al

Northampton Co. leged women clients which aroused the jealousy of his wife. The respondent frequently quarreled with libellant on account of the conduct and relations which libellant had with his alleged fetreat-male clients. The libellant declared that he lost his love for his wife two days after their marriage and there was conStant discord between himself and wife without any move to carry out same and ab- during the eight years they lived tosort does not constitute legal cruelty to en-gether. The libellant testified that he

ment.

Bad temper, jealousy, indefinite

threats

sence of any offer of physical violence of any

title libellant to a decree of divorce.

Divorce. Libel dismissed.

Victor J. Abel, for libellant.

was afraid to live with his wife for the reason that she had told him a thousand times that she would kill him, shoot him, and poison him. Libellant also testified

Bad

that upon other occasions, his wife had a per curiam opinion it was held: "That threatened to set the house on fire when the acts or conduct of the wife towards he was asleep and to put a bomb and dy- her husband that will entitle the latter to namite under his automobile; also a divorce upon the ground of cruel and threatened to kill him and his alleged fe- barbarous treotment, must be not only male clients whom he took out in his ausuch as render his condition intolerable, tomobile upon several occasions. Re- or life burdensome, but such as amount spondent denied that she made any seri- to legal cruelty." ous threats against her husband. A numtemper, jealousy, indefinite ber of witnesses were called by libellant threats, without any move to carry out in his behalf, two of whom, in corrobor-same, and absence of any offer of physating the testimony of libellant as to ical violence of any sort does not consome of the threats, said when the stitute legal cruelty. To entitle libellant threats were made by respondent against to a divorce, it is necessary for him to her husband in their presence, libellant fully sustain by the testimony that his said nothing and began to laugh. No wife offered either such indignities to evidence was submitted that respondent, his person as rendered his condition inat any time, attempted any overt act to tolerable and life burdensome, or, that carry out any of the threats which she his wife, by cruel and barbarous treatis alleged to have made. She does not ment, rendered his condition intolerable appear to have ever owned a revolver or and life burdensome, or both, and, in the ever had any poison in her possession. present case, either has been adequately Threats of the character alleged to have established by the testimony. been made by the wife, and the manner in which libellant acted on at least two occasions when threats were alleged to have been made, cannot be considered more than mere idle threats. There does not appear to be much doubt that a state of domestic infelicity existed between libellant and respondent, but the testimony does not present a case of cruel and barbarous treatment by the wife of her husband, or indignities to his person, which rendered his condition intolerable

1920, the

And now, November 22, fifth, seventh and eighth exceptions to the master's report are sustained. Libel is dismissed at the cost of libellant.

Q. S. of

Lackawanna Co.

Commonwealth v. Barnickel

ment of separation - Discretion of

court.

A wife's marital right of support according her station in life and her husband's means cannot be extinguished by anything

short of an unequivocal release.

and life burdensome within the meaning Husband and wife-Support-Agree of the statute. In Fay v. Fay, 27 Superior Ct., 331, President Judge Rice said: "It is important to notice that indignities to the person and cruel and barbarous treatment are two distinct causes of divorce, and that in the legis-to lation upon the latter a distinction is made between the case where the wife, Although by articles of separation a husand the case where the husband, is the band agrees to pay his wife $300 a year in half-monthly installments, "for and toward complaining party. In the former the her better support and maintenance," the language of the statute is: When any court may increase the amount if warranted husband shall have, by cruel and bar-by circumstances, where the agreement contained only a covenant against molesting barous treatment, endangered his wife's third parties who may harbor or entertain life: Act of March 13. 1815, 6 Sm. L. either one, but no relinquishment by the wife of any other right. 286. In the latter, the language is: Where the wife shall have by cruel and barbarous treatment, rendered the condition of her husband intolerable and life burdensome: Act of May 8, 1854. P. L. 644: Act of June 25, 1895, P. L. 308." In Platt v. Platt, 38 Superior Ct., 552, in 'ant.

Non-support. Order made.

No appearance of record, for Commonwealth.

No appearance of record, for defend

159

Accordingly it is ordered that the case be continued until further order and de

October 20, 1920, Newcomb, J.-The relief, and, the husband's earnings warproceeding is had on complaint of Mrs. ranting it, an order will be made inBarnickel to compel her husband to con- creasing the amount which he had untribute to her support. It is contested on dertaken to pay. the ground of formal separation of parties by an article of agreement by which the husband stipulated to pay the wife $300 a year in half-monthly installments fendant released in the meantime on of $12.50 each, effective August 1st. The probation conditioned as follows: writing bears date of August 4th this I. That he shall be sober, industrious year. It is not disputed that the pay- and of good behavior; ments have been made accordingly. The 2. present action was begun on September sum of thirty-three dollars That he shall pay to his wife the 7th.

per month, effective August 1, 1920, with the privilege of paying the same in two equal installments on the 1st and 15th days of each month, subject, however, to credit and allowance for so much as he may have paid to the wife since August 1st;

3. That he give bail in the penal sum of $500, with surety to be approved by one of the judges, conditioned in the usual form of such recognizance for his appearance in this court upon three days' notice by mail from the district attorney's office.

In view of the highly confidential relation of the parties it would seem that the For the voluntary breach of the terms. burden of proof is upon defendant to of his probation defendant shall be liable first show that no unfair advantage was to incur the pains and penalties of contaken of the wife; and that she was fully tempt. advised as well of her rights as of the legal effect of any writing intended to vary them, before he could use it against

her. But for reasons inherent in its C. P. of terms, the absence of proof on that score becomes unimportant.

Aside from the husband's stipulation

Lancaster Co.

In re Jenkel Jacob Stotzky

cate-Exemption from military ser

vice as friendly alien-Withdrawal of declaration of intention.

A certificate of naturalization should not

to pay the money above mentioned, it Naturalization-Cancellation of certifi only amounts to a mutual agreement to live separate and apart from each other with a covenant against molesting third persons who may harbor or entertain either one. There is no relinquishment by the wife of any other right. The stipulation of the husband is to pay the be cancelled on the ground that the applimoney "unto her, his said wife, for and cant had testified that he was exempted from military service because of Occupation towards her better support and mainte-whereas he had asked and obtained exempnance." It doesn't purport to be in lieution because he was a friendly alien, where or in satisfaction of her marital right of support according to her station in life, and the husband's means, which can be extinguished by nothing short of an un-questions having in mind his right to exequivocal release.

It follows that, notwithstanding the article of separation, she is entitled to

it appears that he had asked and obtained

exemption on the three grounds of occupation, dependency and as an alien, and apparthrough lack of loyalty, but answered the ently did not claim exemption as an alien

emption on the other grounds.

While the Selective Service Regulations

provided that an alien (not enemy) who had

declared his intention of becoming a citizen

might obtain exemption by withdrawing his

declaration of intention, this applicant, not fered, that any testimoy upon which the

having withdrawn his declaration, should

not have been exempted as an alien and is

not debarred from citizenship.

Rule to cancel certificate of naturali

zation.

John M. Gurnett, for rule.

S. V. Hosterman, contra.

order admitting him to citizenship was made was false, and it failed to justify the allegation that any such testimony

was false, as it shows that he was exempted on account of his occupation, as well as for other reasons.

In the Selective Service Regulations, published by the War Department, it appears on page 126 that Congress has enSeptember 25, 1920, Hassler, J-On acted a law that an alien (not enemy), February 28, 1920, Jenkel Jacob Stotzky who has declared his intention of bewas admitted to citizenship by this court, coming a citizen, might cancel or withand a certificate of naturalization issued draw his declaration of intention and be to him. He was a former subject of exempted from military service, but by Russia. On April 17, 1920, John M. so doing he shall be forever debarred Gurnett, Chief Naturalization Examiner from becoming a citizen of the United of the Philadelphia Division Bureau of States. The applicant here, however, Naturalization, United States Depart-did not withdraw his declaration of inment of Labor, presented his petition to tention to become a citizen of this counthis court asking to have the certificate try, and therefore does not come withof naturalization cancelled and the order in the provisions of the act. Until he of this court admitting said Stotzky to did withdraw that declaration of intencitizenship set aside and revoked. The tion he should not have been exempted reason given in the petition why this from service on that account. Not should be done is that the said Stotzky having withdrawn his declaration of inwas admitted to citizenship on false and tention, he is not debarred under the fraudulent testimony, and that if true provisions of that Act of Congress from testimony of the facts involved had been becoming a citizen of the United States. given it would have prevented him from He was excused from service for other becoming an American citizen. Upon reasons, both of which he claimed in his this petition we granted the rule we are questionnaire. From the examination of about to dispose of. In his answer Jen- the applicant the proof submitted of his kel Jacob Stotzky denies that he testified character and our knowledge of how the falsely at the hearing of his application questionnaires were answered we are

for naturalization.

satisfied that the applicant did not claim The alleged false testimony, as pointed exemption on the ground of being an out at the argument of this rule, is that alien from any lack of loyalty to this he testified that he was exempted from Government. It was in his mind that he military service under the selective ser could and would be exempted because of vice draft because of his occupation, and his occupation and because he had deit was contended that he was exempted pendents, and when the question as to because he was a friendly alien, and had his being native born or alien born was asked exemption on that account. An asked him, he answered it in the way he examination of the copy of his question- did, as it was the fact, and not for the naire shows that he asked exemption on purpose of being exempted. But even three grounds. First, on account of his though we are in error in these views, occupation; second, on account of his not having withdrawn his declaration of having dependents; and third, because intention he is not debarred from behe was a resident alien (not enemy) coming a citizen of the United States. The local board exempted him for each The rule to cancel the certificate of natof these reasons and put him in the fol-uralization and to vacate the order lowing classes: IV-A, on account of his making the said Jenkel Jacob Stotzky a occupation; II-G, because of his having citizen of the United States is, therefore, dependents; V-F, because he was a residischarged. dent alien (not enemy) who claimed exemption. This was the only proof of

Rule discharged.