Now, January 11, 1915, rule to strike off judgment discharged.

WAGNER vs. WAGNER.

Divorce-Jurisdiction.

The jurisdiction of the courts of Pennsylvania attaches to decree a divorce on the grounds of cruel and barbarous treatment, personal indignities and adultery, when the offences were committed in another state, and constructive and not personal service is had on respondent.

In the Court of Common Pleas of Lehigh County. No. 83 September Term, 1913. Julia Wagner vs. Matthias Wagner. Exceptions to Report of Master and Examiner.

Butz & Rupp for Libellant.

Groman, P. J., October 26th, 1914. The libellant, a resident of this jurisdiction, instituted proceedings in divorce alleging "that she had been obliged and compelled to withdraw from their mutual habitation by reason of the cruel and barbarous treatment of her said husband and the indignities he offered to her person rendering her condition intolerable and life burdensome, and endangering her life and health; and further that the said Matthias Wagner at divers times committed adultery."

The causes alleged in the libel occurred while the parties were residents of the State of New Jersey. No personal service was had, the respondent not being within the jurisdiction, nor at any time having been a resident of the State. Constructive service was had by publication as provided for by the Act of March 13th, 1815, Smith's Laws, 286.

The master refused to recommend a decree for want of jurisdiction, but found that otherwise the causes alleged in the libel were made out. The question raised herein resolves itself into the following proposition, namely, whether the Courts of Pennsylvania have jurisdiction to decree a divorce for a cause occurring outside of the state when the parties were not citizens or resi dents of this Commonwealth, when the injured party subsequently becomes a resident of Pennsylvania but the respondent never comes within the borders of the Com

monwealth and is not personally served with process. constructive service being had by publication as provided for by the act.

It seems neither the Supreme nor the Superior Court has passed upon the above proposition. A number of the Courts of Common Pleas of the State have refused to entertain jurisdiction; others, however, have held that the Courts had jurisdiction.

Upon consideration of the cases and opinions therein filed, relative to the question of jurisdiction, where the facts were similar to those under consideration, this Court holds that the views expressed in the following opinions, namely, Hull vs. Hull, 8 Dist. R., 420; Lyons vs. Lyons, 13 Dist. R., 623; Raymond vs. Raymond, 14 Dist. R., 309; Schultzburger vs. Schultzburger, 15 Dist. R., 655; are the most cogent in their reasoning and are those upon which the Court relies in reaching the conclusion that it had jurisdiction in the foregoing proceeding.

Now, October 26th, 1914, exceptions to the Master's Report sustained and decree in divorce granted.

COMMONWEALTH FOR USE vs. DONNELLY'S ESTATE.

Mortgage-Recording-Mistake-Index-Name.

A mortgage was given by William F. Uebing, recorded Oct. 5, 1891, and indexed under the name of William F. Nebing; another mortgage given by William F. Uebing on the same property, April 4, 1902, eight years after the recorder of deeds' term of office had expired, was properly indexed under the name of William F. Uebing. An action was had on the second mortgage indexed under the name of William F. Uebing and the money made by the sale was appropriated to that mortgage. In an action against the executors of one of the sureties on the official bond of the recorder of deeds, the defendant set up the bar of the statute of limitations. Held, that Section 4 of the Act of April 4, 1798, 3 Smith, 332, applied and the statute of limitations began to run from the time the mistake was made in the indexing, and not from April 4, 1902, when the second mortgage was recorded.

Assumpsit on official bond. Motion for new trial. In the Court of Common Pleas of Westmoreland County, No. 552, May Term, 1906.

Marker & Hillingsworth, for Plaintiff.

Lightcap & Warden, Williams, Sloan & Wegley, for

the Defendant.

Doty, P. J., June 29, 1907: The defendants are the executors of Henry G. Donnelly, deceased, who was one of the sureties on the official bond of W. B. Conway, recorder of deeds of this county for three years from the first Monday of January, 1891. During his term as recorder, a mortgage given by William F. Uebing was presented for record and was duly recorded October 5, 1891. But by mistake the same was indexed in the name of William F. Nebing. Eight years after Conway's term had expired, to wit, April 4, 1902, another mortgage given by William F. Uebing on the same property covered by the former mortgage was placed on record. Before any money was advanced on what may be called the second mortgage, a careful search was made of the record without discovery of the first mortgage which was improperly indexed. After due proceedings on the first mortgage, the property was sold by the sheriff, and the sum of $945.57 was appropriated to the mortgage first on record, and nothing to the one held by the use plaintiffs. Suit was brought April 11, 1906, to recover the sum of $945.57 with interest from Feb. 24, 1906, the date of the confirmation absolute of the sheriff's distribution. The action was, therefore, brought more than twelve years after the term of the recorder had ended, and more than fourteen years after the negligent act which had caused

the loss.

The only defence is the statute of limitations. If this be no bar, it is conceded that the plaintiff is entitled to judgment in the sum of $945.57, with interest from Feb. 24, 1906.

The defendant relies on Sec. 4, Act of April, 1798, 3 Smith 332, which provides that no suit shall be brought against the sureties of any public officer after seven years, "to be computed from the time at which the cause of action shall have accrued." The plaintiff contends that the cause of action did not accrue at least until the second mortgage was placed on record on April 4, 1902, and that, therefore, the action is not barred.

The mistake in the indexing occasioned the ultimate loss. It is not pretended that there was fraud or concealment. The whole question is whether the action accrued at the time the act of negligence was committed, or when a party prejudiced by such negligence was in a position

to bring suit. The exact question has not been decided. No case precisely alike in facts has been discovered. In analagous cases, however, the principle which controls is readily ascertained.

It seems to be well settled that the statute bars an action of tort six years after the wrong done. Thus in Owen vs. Western Saving Fund, 97 Pa. 47, which was action against a recorder for a false certificate, it was held that the statute began to run from the time the certificate was given and not from the development of damage.

Suit was brought against directors for an illegal resolution, but in Link vs. McLeod, 194, Pa. 566, it was held that the statute ran from time the resolution was passed and not from the time the money was paid. And in both cases last cited it was recognized that ignorance of the transaction did not toll the statute. The principle is, therefore, settled that to an action brought for injuries resulting from an act done more than six years before, through mere mistake not involving fraud, the statute of limitations is a complete bar. See also Noonan vs. Pardee, 200 Pa. 474; Guarantee Co. vs. Nat. Bank, 202 Pa. 94.

An apparent exception to the rule is found in Lewy vs. Coke Company, 166 Pa. 536, wherein an action after six years from the wrong done is sustained. The decision, however, was by a divided court and it was put on the express ground that the concealment of the wrong was a fraud. But the case has no application here as fraud is not alleged.

It is contended, furthermore, that the line of cases does not control because they all arise under the Act of March 27, 1713, and not under the Act of 1798, which is relied on by the defence. But such contention is not well founded. The acts are substantially the same. Under the Act of 1713 no action of case can be brought after six years from the "cause of such action." While under the Act of 1798, the same thing is expressed thus: "That no suit *** shall be brought after seven years from the time at which the cause of action shall have accrued." Whether the limitation be from the cause of such action or from the time the cause of action shall accrue gives rise to no distinction. The expressions mean the same thing, as uniformly, under the Act of 1713, it has been held that

the statute begins to run from the time the right of action accrues. Overton vs. Tracy, 14 S. & R. 328; Evans vs. Lee, 23 Pa. 88.

An action of case against the recorder himself would likely be defeated by application of the principle declared in Owen vs. Savings Fund, supra. If it has no application in a suit against the sureties, the whole purpose of the Act of 1798, as set forth in the preamble, would be defeated, and sureties on official bonds would be liable to suit many years after the terms of their principal had ended.

Defendants' further reliance is on a line of cases of which Marsteller vs. Marsteller, 93 Pa. 150, is the leading example. The cases hold that if a cause of action accrue in the lifetime of a decedent, the statute is not interrupted by the death, but if the action does not accrue until after the death, the statute begins to run only from the time of administration. It is plain that this principle is not in conflict with that declared in Fink vs. McLeod,

supra.

Binny vs. Brown, 116 Pa. 169, in its facts is a case much like the one in hand. Binny by mistake wrongfully entered satisfaction on the margin of a mortgage. Brown bought the property relying on a certificate from the recorder that he found no unsatisfied mortgages. The mistake was not discovered for fourteen years. The Supreme Court on appeal dismissed the case with the observation that plaintiff's only remedy was an action on the case, a remedy long since barred by the statute of limitations. And now, June 15, 1907, new trial refused and judgment entered on the verdict.

COMMONWEALTH vs. RICHARD.

Justice of the Peace - Appearance of Defendant- Waiver of Dejects.

The appearance of the defendant before a justice cures defects in the issuing and service of the summons, and gives jurisdiction to the justice.

In the Court of Common Pleas of Lehigh County. No. 48 October Term, 1914, Commonwealth of Pennsylvania vs. Harrison Richard, Certiorari.