First Because it introduces a new ground of defense.

Second-Because the new ground of divorce sought to be introduced arose after the original libel was filed.

Third- The amendment if allowed would permit the libelant to introduce evidence of facts occurring since the libel was filed, subpoena served and respond. ent's answer filed.

A proceeding in divorce is not an action at law nor a suit in equity. It is a proceeding sui generis. At common law it was a proceeding prosecuted in the

An action for divorce alleging cruel and bar. barous treatment can be amended by leave of Court after answer filed, though the amend ment set forth a new ground for divorce, in this case adultery. Divorce proceedings are of an equitable nature and by the terms of the Act of ecclesiastical courts. The jurisdiction March 13, 1815, the Court has power to make such preparatory rules and orders in the cause that the same may be brought to a hearing."

Divorce a. v. m.

In re rule to show cause why the original libel should not be amended so that it will contain, as an additional cause for the divorce prayed for, an averment that the respondent, George Getz, has heen guilty of adultery with one Sade Williams, on or about the 26th day of July, 1904, in the county of Washington, near the borough of Canonsburg.

A. M. Templeton for libelant.

exercised by the ecclesiastical courts un der the common law has been given to our court of common pleas by various acts of assembly. The Act of June 20, 1893, the last act on the subject, provides that it shall be lawful for the several courts of common pleas of this commonwealth to entertain jurisdiction of all cases of divorce a. v. m., and from bed and board "for the causes of adultery committed by the husband, or wilful and malicious desertion for two years, or cruel and barbarous treatment, or offer. ing such indignities to his wife's person as to render her condition intolerable and

Parker, McIlvaine & Clark for re- life burdensome and thereby causing her spondent.

October 25, 1904. McILVAINE, P. J. -On April 5, 1904, the libelant filed her libel praying for a divorce a. v. m., on the ground that her husband 'had of fered her such indignities and used such violence to her person as to render her condition intolerable and her life burdensome and forced her to withdraw from his house."

to withdraw from his house and family." The procedure under this Act, it is provided, shall be the same as prescribed by the Act entitled "An Act concerning divorces," approved March 13, 1815.

Among other things, this Act of 1815 provides that a petition shall be filed by the libelant and that a subpoena shall issue to bring the respondent into court; then that he or she shall file an answer. After this the Court "may make such pre

On August 13, 1904, after a subpoena had been served upon him, the respond-paratory rules and orders in the cause that ent, by his counsel, filed an answer de nying the allegations contained in the libel and demanded a trial by jury.

On October 3, 1904, the libelant obtained a rule on the respondent to show cause why adultery by the respondent with one Sade Williams, on or about July 26, 1904, should not be added as an additional ground for the divorce she prays for and why she should not be allowed to amend her libel accordingly.

To this rule the respondent filed answer in which he set out that he objects to the amendment

the same may be brought to a hearing, * * * at which hearing the Court may determine the same ex parte if necessary; but if either of the parties shall desire any matter of fact, that is affirmed by one and denied by the other, to be tried by a jury, an issue shall be formed and the same tried accordingly; but when neither of the parties requires an issue," the Court hears and decides the case without the aid of a jury.

From this it will be seen that although a proceeding in divorce is sui generis it is substantially a suit in equity. It is the

Judge as a chancellor who grants the of the proof of the respondent's breach divorce; the jury, if an issue is demanded, of the contract is alone enlarged. only passes upon such questions of fact It will be observed that the libelant as are submitted for its determination to has not yet filed a replication and no aid the chancellor as in a court of equity. issue has been framed. The proceeding In getting the case in proper shape for is not ready for a hearing, but is yet in trial, either with or without a jury, the its formative stage. The Court having Judge of the Court of Common Pleas is been given the power by the Act of 1815 expressly empowered by the Act of 1815 to make preparatory rules and orders in to make such preparatory rules and in- the cause that the same may be brought terlocutory orders as may be necessary to a hearing," why should not this rule to do justice between the parties and to allow the libelant to assign another determine whether a divorce shall be

reason in support of her claim that the marriage contract has been broken be made absolute? It surely does not deprive the respondent of any right if he is allowed to answer over.

But we are not without precedents in this matter.

granted or refused. The character of the proceeding and this express enactment of the Act of 1815, in our opinion, justifies the allowance of amendments to the libel and answer filed by the parties when necessary to accomplish a full adjudication of the differences and complaints of the parties and to avoid un- In Claybaugh v. Claybaugh (Allenecessary and additional litigation. The gheny county) 10 Weekly Notes of Cases Act of 1893 specifies four causes for a 365, it was held that a libel could be divorce. It they all exist, they can all amended. Judge Ewing, who delivered be set out or assigned in the original libel the opinion of the Court, among other as making the cause for the divorce. Any things said: "There is no good reason one of them is sufficient, but proving or why an amendment charging an addiadding any one or all the others does not tional cause of action should not be change the character of the proceeding allowed in the discretion of the Court. It or the decree that is asked for. And it does not seek a new result or decree. is certainly in the interest of the speedy may save time and expense.' administration of justice that one and not In A. v. B, 2 District Reports 393 four different libels be filed, and that one (Philadelphia county), Judge Biddle, in and not four trials be had, if at any time allowing an amendment, said: "The before trial or before issue it transpires proceeding in divorce is an equitable one that all of the causes exist and issues as and conducted under equitable processes. to all may be tried together. To accom It is commenced by libel (bill) followed plish this, amendments to the original by subpoena and answer and is referred libel, or more properly a supplementary to a master, and a court of equity is espeor amended libel, should be allowed with- cially empowered to allow any and all out issuing an alias subpoena. amendments necessary to secure a prompt administration of justice between the parties"

It

The objection of the respondent to us following this course in the case at bar is that the amendment, if allowed, would In Toone v. Toone, (Philadelphia "introduce a new cause of action." But County), 10 Phila. 147, Judge Paxson, technically considered, does it? The in allowing an amendment to a libel conright of action accruing to the libelant taining a new and distinct ground of digrows out of the breach of the marital vorce, among other things said: "A libel contract, and the relief she seeks is to in divorce, although not technically a bill have that contract annulled. According in equity, may be said to be in the nature to the statements contained in the original of a proceeding in equity. Amendments libel she had that right of action, and in such cases are not of right but rest in what she now asks is to be allowed to the sound discretion of the Court." Speakaver a second ground for the enforcement ing of the objections to the amendment, of her right to the decree she would be he said: "Nor is the objection that an entitled to under the averments of the additional cause of divorce is introduced original libel. The contract that has a valid one. The libelant is not necessabeen broken remains the same; the scope rily restricted to one ground of divorce.

She might have alleged both causes in an original libel, and there is no good reason why she may not amend now so as to include both."

In Power's Appeal, 120 Pa 327, Mr. Justice Paxson, in speaking for the Supreme Court, said: "A motion was made at bar for leave to amend the libel by inserting an averment of cruel and barbarous treatment by the wife We declined to allow the amendment for the reason that it made a change in the cause of action requiring for its support a different line of proof. The libelant could have amended below when, if the respondent was of the opinion that additional evidence was required to meet the new charge, she would have had an opportunity to introduce it. It would be unjust to allow the amendment at this stage of the proceedings."

The rule came on to be heard and was argued by counsel, whereupon, upon due consideration, it is ordered, adjudged and decreed as follows, to wit:

I. That the libelant be allowed to file an amended libel, adding as an additional ground for the divorce she seeks, adultery by the respondent, George Getz, with one Sade Williams, on or about July 26, 1904, near Canonsburg in this county.

2. That the respondent be allowed to answer over, and that he file his answer within thirty days after the amended libel is filed and a copy thereof served upon his attorneys of record.

C. P. of

January 2, 1905. TREXLER, P. J.— Daniel Meeker, the defendant in the above matter, presented his petition praying that the above judgment, founded upon a transcript of a justice's docket, filed in 1895. be stricken from the record. The reasons alleged are:

First-That the record shows that the summons, was made returnable a year after it was issued.

Second-That it fails to show where and before whom the summons was returnable.

Third-That it fails to show whether

the judgment was rendered by default or not.

Fourth-That it does not show that the summons was returned under oath. Ftfth-That it does not state the hour when judgment was entered.

Sixth--That it does not show that the plaintiff presented any evidence.

After the presentation of the petition and during the pendency of a rule on the plaintiff to show cause why the transcript should not be stricken off, plaintiff presented a petition to amend the record, alleging that the last figure of the year 1895, which formed part of the statement of the time at which the summons was returnable, was wrong and that it should be 1894, the summons being issued on May 17, 1894, and made returnable on May 22nd, 1894, at 10 o'clock a. m., as shown by the alderman's docket, and

further that in the constable's return the words "On oath I" were omitted and praying that the correct transcript of the Lehigh Co. docket might be filed.

Justice & Sons v. Meeker & Co. Practice-Justice of the Peace-Amendment of Record.

A transcript of a judgment given by a Justice of the Peace was entered in the Prothonotary's office. Through an error in copying the record the return day of the writ was given as May 22, 1895, when it should have been May 22, 1894. HELD, that the transcript might be amended to conform to the Justice's docket.

A delay of over eight years in moving to strike off a judgment is sufficient to charge the

defendant with laches.

Petitition to have judgment stricken

off. Petition to amend.

Reuben J. Butz for plaintiffs.
Calvin E. Arner for defendant.

The defendant denies the right of the Court to allow an amendment.

The first question to be considered is: Can the transcript be amended? As to the right of the Court to amend the transcript of a justice, there are a number of cases cited in P. & L. Dig. of Dec, Vol. 10, Col. 17667.

It will be noticed in this case that there is no effort made to amend the record of

the justice but it is claimed that the transcript is not a correct copy of the justice's docket.

The record of the justice can only be amended whilst it is still within his own control.

Upon certiorari where there is an alle

gation of diminution of record, the Court The case of the Inquirer Printing Co.

will require him to complete it; Stambaugh v. Baker, 10 Dis. Rep. 79; Bushey v. Lerew, 1 J. L. R 118.

In Klingler v. Koons, 13 C. C. R. 641. it was held that the Court could not allow the justice to amend his transcript, but if the correct transcript were not before the Count it could be thereafter certified

and entered.

It would seem to me a hard rule, that would render void the judgment entered on a transcript of a Justice of the Peace because of verbal inaccuracies occurring in the copying of the record as found on the docket. I will allow the amendment. I am of the opinion, however, that under the circumstances in this case, the original unamended transcript is sufficient to support the judgment.

In the consideration of this case it must be remembered that the judgment

v. Wehrly, 157 Pa. 415, disposes of the
question as to whether this exception is
applicable to the entire matter now being
considered. In that case there was a

delay of fifteen years and the lower Court,
upon the rule to strike off the judgment,
expressly founded its refusal to make the
rule absolute upon the reason that al-
though a judgment might be fatally de-
fective, the laches of the defendant pre-
vented the Court from interfering.
The rule to strike off the judgment is
dismissed.

The rule to amend the transcript is made absolute.

Abstracts of Recent Decisions.

(Cases not otherwise designatea are Su

was entered in 1894; that a transcript preme Court cases.)

was filed November 19, 1895; that since that time the judgment has remained upon the records of the court unattacked;

Election Law-Residence-Meaning of.

and that were it now set aside, the plaintiff -A man resides where, in ordinary lancould bring no new action, being barred by the statute of limitations.

Authorities may be found on both sides of almost every question involving the sufficiency of a justice's record and the equities of the case therefore form an important part in leading to the decision of

the matter.

guage, his home is. A man who has a home in one election district-a place that he returns to when business and pleasure are ended; where he goes for his usual sleep and meals; in fact a place that he lives in-cannot obtain right to vote by renting a room, furnishing it, having some clothing in it, and occasionally eating or sleeping in it, in another election district. A defendant, who had been indicted for voting illegally, testified at the trial that he had had his name placed upon the assessor's list as residing at No. 207 Stamper street, so that he could have a place to vote from, and had voted as residing at that address; that he never had any connection with the house beyond that, he never slept, ate or rented a room there, never had any of his belongings there, and, as a matter of fact, lived around at different lodging houses, a having no settled home. He had no other residence in the election division. HELD, that he had no residence at the said address to entitle him to vote, and that the trial judge committed no error in instructing the jury to return a verdict of guilty.-Csmmonwealth v. Devine, (Philadelphia County Q S.) 62 Phila. Legal Intelligencer 4.

The first objection that the record shows that the summons was made re turnable a year after it was issued is, in my opinion, without merit. An inspection of the transcript shows that the summons was issued May 17th, 1894, returnable the 22nd day of May, 1895, at 10 o'clock a. m., being over a year after the issuing of it and that the defendant was served on May 18th, 1894, and that judgment was entered May 22, 1894. This is sufficient to show that the "5" in the year 1895" was merely clerical mistake. It would be hypercritical to declare a transcript void on such grounds.

The other objections to the record are not serious except the one which alleges that the record fails to show that no evidence was heard on the part of the plaintiff.

Proceeds of sale of house and
lot of ground situate on the
south-west corner of Phila-
delphia and Penn streets in
the City of York.....
It is apparent that at the time of the
execution of the assignment in question,
on which the auditor awarded the legacy
of Frederick G. Schutze to Henry F.
Schaale, the executor, the real amount
of the estate of the testatrix was not
ascertained. Neither the exact amount

It was presented by Henry F. Schaale, of the estate or the credits to be deducted