the court has power to permit a supplemental affidavit of defense to be filed.

We are of the opinion, for reasons herein set forth, that the affidavit of defense after the tenth paragraph thereof does not meet the requirements of the Practice Act of 1915.

Now April 5, 1920, Rule to strike off affidavit of defense made absolute, with leave to file a new affidavit of defense within thirty days.

LONG ISLAND R. R. CO. v. LANDAU.

Carriers-Freight and Demurrage Charges-Consignee's ReRefusal to Accept-Notice to Consignor-Consignor Acting as Agent.

Where a consignor, on notice that a consignee had refused to accept a shipment of car loads of coal, directed the carrier to reship them, and at the same time requested that "all charges follow," and the second consignee also refused to accept the shipment, the consignor is liable for the freight, demurrage and other service charges accruing on the shipment.

A shipper is liable for freight charges, although the ownership of the goods may have been in another for whom he was acting as agent, if no notice of the agency had been given to the carrier until after the service had been completed. The liability at stake springs from the contract relation of shipper and carrier, and unless so provided by the terms of the contract it has nothing to do with the question of ownership.

Even though the shipper had seen fit to disclose the alleged agency at the inception of the contract, that alone would not relieve him from liability.

Motion for judgment, sec. reg. In the Court of Common Pleas of Lackawanna County. No. 436, November Term, 1919.

Knapp, O'Malley, Hill & Harris and F. W. Wheaton, for Plaintiff.

Donahoe & Helriegel, for Defendant.

Newcomb, J., February 25, 1920. Plaintiff, a carrier, sues for freight, demurrage and other service charges accruing on a shipment of two cars of coal originating at Avoca, Luzerne county, this state, and first consigned for

delivery at Garfield, New Jersey. This was March 15, 1914, as appears by date of the bill of lading executed on part of defendants in their co-partnership name of the United Coal Company, as the consignors. The carrier was the Erie R. R. Co., and the form of contract was that known as the Standard Form Bill of Lading approved by the proper federal authorities for interstate traffic. Later the cars were transferred by the Erie to the plaintiff company and thus carried to Freeport, Long Island. It was so done at defendants' instance upon due notice that he first consignee had refused to accept the shipment. At the same time defendants surrendered the bill of lading, coupled with request that "all charges follow." Upon taking the cars off the hands of the Erie, plaintiff paid the antecedent charges and made delivery at Freeport as directed, where acceptance was again refused by the consignee. The shipments are not denied.

Defense is sought to be taken upon the ground of an alleged agency. That is to say, it is alleged that the ownership of the goods was in another concern for which defendants were acting only as an agent in the premises. But granting this to be true, it is not pretended that either plaintiff or the initial carrier was aware of it. They do not claim to have made it known until April 20, 1914, after the service had been completed and they had been advised of the second refusal of the shipment. They had dealt with the shipment as the consignor. The liability at stake springs from the contract relation of shipper and carrier; and unless so provided by the terms of the contract it has nothing whatever to do with the question of ownership. That is not all: Even though the shipper had seen fit to disclose the alleged agency at the inception of the contract, that alone would not relieve them from liability: C. & C. R. R. Co. v. C. & C. Co., L. R. A. 1917, A. note p. 665-7.

The issue is entirely analagous with that involved in B. & O. R. R. Co. v. Samuel, 48 Pa. Super. Ct. 274, on the authority of which the exceptions are sustained, the rule to show cause made absolute and judgment entered for plaintiff in the sum of one hundred eighty-three and 63-100 dollars, with interest from April 20, 1914, amounting to $65.65; total $249.98.

EBERT v. EBERT.

Divorce-Desertion-Proof.

A divorce will be refused, where respondent requested a renewal of the marital relationship, the libellant refusing and not even having a proper home.

In the Court of Common pleas of Lehigh County. No. 43 June Term, 1919. James W. Ebert v. Annie L. Ebert. In Divorce. Exceptions to Master's Report. Exceptions dismissed and divorce refused.

Francis J. Gildner, for Libellant.
Edwin K. Kline, for Respondent.

Groman, P. J., December 16, 1919. The libel charges wilful and malicious desertion without reasonable cause, as of March 29, 1917. What we are at present called upon to decide is whether or not this is a fact. Much of the evidence in this case relates to the course of conduct of the parties prior to March 29, 1917; while not relevent to the issue, it throws an interesting side light on the unfortunate circumstances existing in this family-the one possibly talking too much, and the other too little.

The Master recommended the refusal of a decree, to which libellant filed exceptions. A reading of the evidence and of the Report of the Master, convinces us that the exceptions will have to be dismissed. The evidence shows that libellant from November 11, 1916 to March 20, 1917, slept in a house a quarter of a mile away from his home, however, taking his meals with the family. From March 20 to March 29, 1917, he moved back to his home, but occupied a separate bed; and later moved his belongings to German's Corner and furnished the "home" with an old stove, one small bed and a few other articles of furniture, himself stating that he had not enough furniture without the furniture of his wife to furnish the home. A few days after the moving, he returned to the home he had left, and his wife asked him when she could come; he replied she could come any day; he never spoke to her afterwards about living together. While the libellant has the right to select his domicile, he must furnish a proper home for his wife and family, offer a home in good faith and renew the marital relationship,

otherwise the wife may refuse to accept the offer. We cannot see that the course of conduct on the part of this libellant, as set forth in the offer made, was made in good faith, especially the libellant himself admits he did not have sufficient furniture to furnish the home. This cerainly was not a suitable home, the refusal of which by the wife would entitle libellant to a decree. We find that the respondent went to New Tripoli on June 25, 1917, saw libellant, asked him to renew the marital relationship, libellant said it was too late. On June 28, 1917 she went to the home where libellant then lived at German's Corner and found the door locked. Here we then have a demand on libellant by respondent to resume the relationship of husband and wife, and the refusal by the libellant.

Now December 16, 1919, Exceptions to Master's Report are dismissed; decree in divorce refused.

KINLEY v. PENNSYLVANIA RAILROAD. Workmen's Compensation-Death of Dependent-Substitution. A personal representative of a deceased dependent cannot substituted for the dependent, as claimant, when the dependent filed a claim petition before death, but dies before the Referee has disposed of the claim.

be

Ella M. Kinley v. The Pennsylvania Railroad Company. Appeal by Defendant from Award of Compensation by Referee Champion, District No. 6. Claim Petition No. 8999.

H. Z. Maxwell, for Appellant.
Frank P. Cummings, for Appellee.

Houck, Commissioner (concurred in by Chairman Mackey and Commissioner Jarrett), May 3, 1920.

On November 17, 1919, Ella M. Kinley, by her brother and next friend, James E. Hennesey, filed a claim petition for compensation alleging that her husband, David R. Kinley, met with an accident while in the course of his employment, which resulted in his death; that she was his only dependent; and that his wages

were in excess of $20.00 per week. The defendant filed no answer to this petition. The case came on to be heard before the Referee on January 9th, 1920, at which time the attorney for the claimant suggested the death of the claimant, Ella M. Kinley, on December 4th, 1919, and offered the certificate of the Register of Wills of Lycoming County showing the appointment on December 10th, 1919, of James E. Hennesey, as administrator of the estate of Ella M. Kinley, deceased. On motion, the claim petition was amended by the substitution of James E. Hennesey, administrator of the estate of Ella M. Kinley, deceased, as claimant. On January 23rd, 1920, the Referee handed down his order, awarding to James E. Hennesey, administrator of Ella M. Kinley, compensation from December 7th, 1918, to December 4th, 1919, the date of the claimant's death, and also the sum of $100.00 on account of the expenses of the last sickness and burial of the deceased employe, David R. Kinley, the defendant having agreed to pay this sum to the administrator of the deceased claimant. The defendant appealed from the award of compensation on the ground that the right of the dependent widow to compensation ceased with her death, and the right to compensation accruing prior to her death and unpaid to her is not a vested right capable of enforcement by the personal representative of the deceased, even though the dependent has filed a claim petition and dies while the petition is pending.

There is no doubt, in this State, that the personal representatives of a deceased employe cannot institute an action to recover compensation which accrued to the employe before his death but which was unpaid, nor are the dependents of the deceased employe entitled to such unpaid compensation. This rule applies even where an agreement has been made between the employer and the employe providing for the payment of compensation, or where an award has been made in favor of the emplove. Galbraith v. Pennsylvania Railroad Company, 2 Pa. Workmen's Compensation Board, 512; Trout v. Pennsylvania Railroad Company, 5 Dept. Reports, 5. The reason for the rule is that the right to compensation is a personal right which dies with the party, and, if the employe leaves dependents surviving him ,they, as de