brought, and also in the county in which such real estate sought to be charged is situate, and be duly prosecuted to judgment; and then to be a lien only for a period of five years, unless the same be revived by writ of scire facias against the decedent, his heirs, executors, or administrators, and the devisee, alienee or owner of the land sought to be charged in the manner now provided in the case of the revival of judgments."

County bridge-Province of Grand
Jury and the Court.

viewers to view the site of a proposed Coun

The Court of Quarter Sessions appointed

who refused to concur with the viewers. By

ty Bridge; the viewers reported favorably thereto. This report was confirmed by the Clause (c) of said section of the Act, Court and laid before the next Grand Jury, page 477. provides as follows: "The pro-leave of Court the viewers report was laid visions of clause (a) of this section shall be retroactive; provided, however, that in case of any. .....debt or demand that would be sooner barred, an action for the recovery thereof may be commenced within one year after the passage of this act, in manner as provided in clause (a) of this section.”

The Act was (passed) approved June 7th, 1917.

before another Grand Jury, who concurred
therewith. A third Grand Jury also concur-
When the re-
red with the viewers' report.
port was presented to the Court for final ap-
proval, it was held that when the first Grand
Jury refused to concur with the report of the
viewers, the proceeding was at an end and
the Grand Jury is "ultra vires."

that all later action thercon by the Court and

E. E. Kiernan for petitioners.

June 12, 1920, Berkey, P. J.-Sundry citizens of Milford Township presented A search of the records shows that the a petition to the court September 15, decedent died March 25th, 1917. two 1915, praying for the appointment of months and twenty-three days prior to viewers to view the site of the proposed the passage of the Act. Therefore, under bridge and report thereon, which was the provisions of clause (a), which pro-accordingly done. The viewers made vides that the lien of the debts shall be report to the court at the next December barred after one year from the decease Sessions in favor of the bridge, when of the debtor, the creditors of the estate the report was confirmed nisi and bewould have less than ten months in which came absolute at the February Sessions, to validate their claims. Clause (c) of 1916. The report was laid before the the said section of said Act provides for grand jury at the same sessions of the such cases, by extending the lien of "de-quarter sessions court on March 2, 1916. mands" to "one year after the passage and the grand jury refused to concur of this Act, in manner as provided in clause (a) of this section."

The records show the suits

with the viewers in the report made by them. The petitioners again appeared before the court 29th Apr., 1916, with upon which claims in question are based, were entered above matter back to the grand jury at petition praying the court "to refer the in the Court of Common Pleas of York the coming May Sessions, as your petiCounty, Pennsylvania, (the County in tioners earnestly feel that wrong has which the real estate of decedent is sit-been done the township of Milford by uated) on the 31st day of May, 1918, re- the former grand jury without proper spectively to 63 and 64, August Term, or fair inquiry into the facts of the 1918, and were duly and regularly index-case". Whereupon the court made the ed on the same day, and are properly re- following order: "And now, to-wit. vived by scire facias, as the Act requires. April 29, 1916, upon due consideration They were thereby made liens within the it is ordered that the report of viewers time prescribed by the Act, and were in the above case be referred to the properly scheduled by the executor as

debts of the decedent's estate.

And now, June 28th 1920, the rule is discharged at the costs of H. M. Gibbs, the petitioner.

grand jury at May Sessions, 1916". The report in accordance with said decree was laid before the grand jury at the May Sessions, 1916, when the following action was taken by said body: “Grand

jurors do concur with the viewers and bridge might be kept dancing attendance their report". The endorsement on the upon the court from sessions to sessions report reveals that it was again laid be- until some one grand jury may be infore the grand jury at the September duced to approve it". Sessions, the action of the grand jury being as follows: "September 14, 1916, the grand jurors do concur with the viewers and their report".

See also, Railroad Co. v. Lawrence
County, 198 Pa. I.

Commonwealth v. Baker, 212 Pa., 230.
Commonwealth v. Bowman, 218 Pa.

The act approved June 12, 1907 P. L.

cited.

Counsel for petitioners laid the papers 330. in this case before the Judge of said court with request that it be approved 325, amending Sec. 35 of the Act of as is required by the Act of June 13, 1836, P. L. 551, in no wise changes the 1836, relative to roads, highways and procedure as laid down in the authorities bridges, Sec. 35, P. L. 560. The court is of opinion that when the grand jury The Court is not unmindful of the March 2, 1916 refused to concur with opinion of the court, Ruppel, P. J., filed the viewers, the proceeding was at an to I December Sessions. 1915, end a nd that all later action thereon by March 11, 1916, in which opinion the the court and the grand jury is ultra court sustained the view of the law that vires. In support of this position is cit- the court had power to send a report of ed Pequea Creek Bridge, 68 Pa. 427, this kind to a second grand jury after a Sharswood, J. failure to secure an approval from the first grand jury. In that case the court relies upon the Act of February 17, 1860, P. L., 61 as amended by the Act of May 25, 1907, P. L. 233. The court passing upon the same question in this proceeding cannot concur with the view of the court therein expressed.

menced anew.

C. P. of

Allegheny Co.

"It appears by the record that viewers were appointed by the court of quarter sessions of Lancaster County, to view a site for a bridge over Pequea Creek, on the line of Martic and Conestoga townships in that county. Their report in its favor was presented to the court and confirmed. It was subsequently approv- And now, June 12, 1920, for the reaed by the grand jury. This action of the sons above set forth, the court cannot grand jury was set aside by the court for concur with the second and third grand irregularity, and the matter referred to juries that have passed thereon, being another grand jury, who reported without authority so to do, as the proagainst the bridge. Here, in our opin- ceeding ended March 2, 1916 when the ion, the proceeding was at an end. The first grand jury refused to concur. parties if dissatisfied should have com* The Act of June 13th, 1836, relative to roads, highways and bridges, Sec. 35, Pamph. L. 560, where viewers are appointed for a bridge, provides when they report favorably that if it shall appear to the court, grand jury and commissioners of the county that such bridge is necessary, and would be too expensive for such township or townships, it shall be entered on record as a county bridge". It is evident that the legislature intended that, these three bodies should act as checks upon each other in the unnecessary expenditure of a public money in the erection of county bridges. When either of them therefore have put their disapprobation on record, the proceeding falls. If it were not so, taxpayers and others interested in opposing a county i

Dierctor General of Railroads v.
Keefer

Subpoena Duces Tecum-Assumpsit-
Expenses-Action to recover-Ap-

peal.

The service of a subpoena duces tecum does not raise an assumpsit to pay for whatever trouble or difficulty the witness may have in finding the papers called for, and in

an action by plaintiff to recover for said expense from defendant, judgment entered for

defendant.

Certiorari to county court.

Patterson, Crawford & Miller, for plaintiff.

W. H. Coleman, for defendant.

answer to

Although a single act of cruelty may be so atrocious, and attended with such distressing physical results as to endanger life and health, and justify a divorce, it is well settled, that no single act of mere indignity to the person, however annoying or humiliating

is a sufficient ground for divorce. The law in such cases requires proofs of such repeat

ed acts of ill treatment, as constitute a continued course of malicious conduct which

her condition intolerable.

The testimony failing to show in detail the circumstances attending the separation

of the parties, or that it followed as the direct result of threats, or personal injury to the libellant, and the weight of the whole of was really caused by the respondent's refusal to work or to support his wife, a divorce on the ground of cruel and barbarous treatment must be refused for want of sufficient evi

the evidence indicating that said separation

dence.

Petition for divorce. Katie C. Gas

March 12, 1920, Shafer, P. J.-The action in the county court was by the Director General of Railroads for his expenses in finding books and papers in an renders the libellant's life burdensome and a subpoena duces tecum, served upon him by the defendant. The charge is for the wages of a certain number of clerks, for a certain number of hours' time spent in hunting out these records, the bill amounting to $140.71. The county court entered judgment for the defendant. No precedent has been shown us of a recovery upon any such claim, nor has the plaintiff pointed out any statute upon which he relies. We are clearly of opinion that the service of a subpoena duces tecum does not raise an assumpsit to pay for whatever trouble or difficulty the witness may have in finding the papers called for. In the present in stance it seems to us that the plaintiff should either have called the attention of the parties serving the subpoena, to the difficulty of responding to it, and demanded compensation in advance, and if no proper arrangements could have been made, he should have applied to the court out of which the subpoena issued for relief. We are of opinion therefore that the judgment of the county court was right, and it is therefore affirmed.

C. P. of

Divorce

Gaskell v. Gaskell

kell v. Sherman Gaskell, No. 135 April Term, 1920, in the Common Pleas of York County, Pa. On petition, testimony and recommendation of master. Divorce refused.

Stock, for petitioner.

No appearance for respondent.

July 6, 1920, Wanner, P. J.-The libellant in this case charges that her husband "by cruel and barbarous treatment has endangered his wife's life, and has offered such indignities to her person as life burdensome and thereby forced her to render her condition intolerable and to withdraw from his house and family."

The master in his report sustains said charges and recommends that a divorce York Co. be granted on those grounds and we are asked to adopt his suggestion and make a decree accordingly.

Master's recommendation

The law, however, forbids the Court doing this, unless upon a full and careful examination of the record and of the evidence it shall be convinced that the Duty of Court to examine and con- latter is sufficient to justify such a desider the evidence-Cruel and barbar- | cree.

ous treatment.

vorce

full examination of the record and of the

In the leading case of Middleton v. Middleton, 187 Pa. 612-614, the Court, The Court can not grant a decree in di- Dean, J., said: "When the jurisdiction on a master's report, unless upon a of a court is conferred by statute, and evidence, it shall be convinced that the lat- the manner in which the jurisdiction. ter is sufficient to justify such a decree; and shall be exercised is pointed out, courts the rule of law that the master's conclusion are not at liberey to adopt the practice should not be adopted by the court without a full perusal and personal examination of the testimony in each case is so imperative that to make a decree of divorce without

having done so, would be an evasion of the court's judicial duty.

of other courts, either common law or statutory, to reach a decree. While the court may appoint an examiner to take testimony and report it, there is no au

thority under the act to appoint a mas-iner, neither it nor we can escape the ter to find facts and suggest a decree. burden of a careful consideration of the Long established practice throughout the evidence, to ascertain if it do, in very commonwealth, resting often in rules of truth, establish the statutory grounds for court, has settled the construction of the a divorce." act, as authorizing the appointment of an In Edgar v. Edgar, 23 Pa. Super. Ct. examiner, but the whole legislation on 220-221, the Court, (Orlady, J.) said: the subject clearly intends, that the court "The act of March 10, 1899, P. L. 8. shall not shift the duty of finding the which provides for the appointment of facts to an appointee. Whether the mar- a master and return in a divorce proital contract shall be severed is the grav-ceeding, 'who shall take the testimony est of questions, not alone to the parties, and return the same together with a rebut to the state, for the social structure port of the proceedings before him and rests upon it. It never was intended that his opinion of the case to the court,' was the judicial function should in any ma- not intended to substitute the opinion of terial degree be relinquished by conduct- the master for a trial by jury, or for ing the proceedings before a master in full consideration of the evidence by the his office, or that weighty judicial re- court, which makes the final decree; and sponsibility should be evaded by shifting the requirements preceding a decree as it over to a member of the bar. We feel stated in Middleton v. Middleton, 187 that a careful perusal of the statutes will Pa. 612, are not in any way affected by convince any one of the correctness of the act of assembly mentioned. It has these observations. The ability, learn-never been the intention of the legising and conscience of the court must be lature of this state nor of our courts to called into exercise before there can be make divorces easy to be obtained.” a dissolution of this contract. While the In Rishel v. Rishel, 24 Pa. Super. Ct. witnesses may be examined, the court 303-304, after the Court had examined must, before decree, be satisfied by its the master's report and referred it back own knowledge of the testimony that the for further testimony, and the greater averments of the libel have been proved part of the testimony of former hearby full and competent evidence. It is ings was lost, the Court (Orlady, J.) not sufficient that they have been proved said: "All the recent decisions of our apto the satisfaction of the examiner by pellate courts require full proof of a sufwitnesses that the court neither saw nor ficient cause for divorce, and careful exheard.” ****** "And this Court has, amination by the courts of all the testiever since the passage of the act of 1815, mony. This duty is as imperative on the held it incumbent on it, on appeal from a courts of last resort as it is on the comdecree of divorce, except where there mon pleas. It may be difficult and exhas been an issue and jury trial, to re-pensive to supply the lost evidence, but view the testimony, and adjudge wheth- this does not relieve this court of its er it sustained the complaint of the li- bounden duty to have the full record bebellant. It has not adopted, in such ap-fore it when a final decree is made." peals, the rule generally applicable to In Naylor v. Naylor, 59 Pa. Super. proceedings before a master or an audi- Ct. 547-559, the Court, (Rice, J.) said: tor, that a finding of fact will not be dis- "The learned counsel for the appellant turbed except for manifest error. In ev- complains that the court did not give due ery case in which the appeal was from a weight to the master's report." ***** decree not based on the finding of a "It is undoubtedly true that it is the duty jury from testimony produced and find- of the court to give consideration to the ing had in open court, under the instruc- opinion of the master, particularly where tions of the judge as to the law, it has the veracity of the witnesses is involved. taken up, analyzed and reviewed the tes- But even on such a question the court timony, and in nearly every case, has em- must exercise its judgment from an exbodied its views in an opinion filed." amination and consideration of the evi****** "Therefore, of whatever dence, and is in no sense bound to adopt drudgery the court of original jurisdic- the finding of the master or to treat it, as tion may relieve itself in this class of casting the burden on the party exceptcases, by the appointment of an exam-ing to his report."

In Heimer v Heimer, 63 Pa. Super. life was endangered by her husband, or Ct. 476-477, decided since the passage of that he had ever done her any bodily the Act of June 1, 1915, P. L. 674, the harm, except in one instance when she Court, (Orlady, J.) said: "In Biddle vs. alleges that he pushed her against the Biddle, 50 Pa. Super. Ct. 32, this court stove, causing a mark on her hip. There said by Henderson, J.: 'It has been held were no witnesses to any other actual by the Supreme Court ever since the physical injury suffered by the libellant, passage of the Act of 1815, to be incum- though it was testified that respondent bent on it to review the testimony and shook his fist at his wife, and used bad determine whether it sustained the com- language to her at times when they quarplaint of the libellant on an appeal from reled. Libellant declares that the rea decree for a divorce, except in cases spondent made several conditional where there was an issue and a jury trial, threats against her, and that on one ocand that rule governs this court also in casion, he got a butcher knife, and the consideration of cases of this class. threatened to kill himself, and then We are called on to give careful consid- bumped his head against the floor, after eration to the evidence to ascertain she had taken the knife from him. But whether it is sufficient to establish the it does not appear even from the libelstatutory grounds for a divorce, and this lant's own evidence, that she was so infor the reason as was said in Richards timidated by threats, or by fear of imv. Richards, 37 Pa. 225, that divorce pending danger, to herself, that she left ought not to be easily obtained, and the her husband on that account. Indeed the marriage relation should never be dis- exact time and circumstances and the imsolved without clear proof of imperious mediate cause of their separation, are reasons. A report of an examiner and not given in detail by the libellant. the judgment of the court do not carry It does appear however, that there was a with them the presumption of correct-dispute when they separated as to who ness which arises in a case of findings should have the furniture. of an auditor or master, and the confir- Their troubles began when the responmation thereof by the court below, in an dent quit work in April, 1919, and culmiequitable proceeding. We must there-nated in a separation in December, of fore examine the evidence with reference the same year, after his persistent refusal to its bearing on the averments of the to work or to support his wife in the complainant as set forth in the libel.' The meantime. importance of a strict adherence to this rule is emphasized by the apparent increase of divorce cases."

The weight of the testimony as a whole, indicates that this rather than any other ill treatment of the libellant These and many other cases cited was the cause of their separation. While therein, clearly show that the Court the evidence discloses such wilful nonshould not adopt the conclusions of the support of the libellant, as may have jusmaster, without a full perusal and per-tified her withdrawal from the respondsonal examination of the testimony in ent, on that ground, and may eventually each case. The rule is so imperative that entitle her to a divorce, it does not in our to make a decree of divorce without hav- opinion entitle her to a divorce now on ing done so, would be an evasion of the the grounds laid in the libel. court's judicial duty. The cases also in- Although a single act of cruelty may dicate that whenever any disputed ques-be so atrocious, and attended with such tions arise for the determination of the distressing physical results as to endanCourt, an opinion should be filed review-ger life and health, and justify a divorce, ing the law and the facts of the case, it is well settled, that no single act of and setting forth the grounds of the mere indignity to the person, however court's decision. annoying and humiliating is a sufficient A careful examination of the testi- ground for divorce. The law in such testi-ground mony offered in this case, convinces us cases requires proofs of such repeated that it is insufficient to establish the acts of ill treatment, as constitute a conabove quoted charges as contained in the tinued course of malicious misconduct libel. There is no evidence whatever which renders the libellant's life burdento sustain the charge that the libellant's 'some and her condition intolerable: Rich