Talpash v. Philadelphia & Reading Coal and Iron Co. hospital treatment of the claimant incurred solely by reason of the unnecessary transfer of the claimant from the general ward of the hospital to a private ward. The appeal is dismissed.

From M. M. Burke, Shenandoah, Pa.

Airston v. Bollinger et ux.

Foreign attachment-Affidavit-Information and belief-Tort-Motion to qaash-Service of writ-Failure to advertise-Act of June 18, 1836.

1. Where the facts were peculiarly within the knowledge of the plaintiff, but the affidavit was made on "information and belief," a rule to quash a foreign attachment for damages for a tort committed in Pennsylvania by the wrongful detention of plaintiff's four-year-old daughter was made absolute.

2. Plaintiff is required to make a straightforward affidavit as to the truth of the allegations where the facts are within his knowledge.

3. Plaintiff must state the facts explicitly in positive language.

4. Where the return showed that there was no one in possession of defendant's real estate at the time of the service of the writ and the sheriff failed to observe the requirement of the Act of June 13, 1836, P. L. 572, providing for advertisement of a copy of the writ in one newspaper for a period of six weeks, the writ was quashed.

Foreign attachment. C. P. Allegheny Co., Oct. T., 1924, No. 2444.

Before Macfarlane and Drew, JJ.

Sidney J. Watts, for plaintiff.

Thorp, Bostwick, Stewart & Reed, for defendants.

DREW, J.-This is a proceeding in foreign attachment under the provisions of the Act of June 13, 1836, P. L. 572, and its supplements, for damages for a tort committed in this Commonwealth. The alleged tort is the wrongful detention and abduction of the plaintiff's four-year-old daughter. The defendants are the grandparents of the child.

The case is now before us on a rule to quash the writ and dissolve the attachment for the reasons, inter alia, that

6. The affidavit, being upon information and belief, is insufficient.

7. The sheriff's return shows that there was no person in possession of the premises at the time of the service of the writ, and the record fails to show a publication as required by the Act of 1836.

The statement of claim, signed by plaintiff's attorney of record, says that defendants were formerly residents of this county, and after the commission of the alleged tort removed to Florida, and later from Florida to an unknown place "to escape the service of process to answer the said tort." That on March 16, 1920, there was born to plaintiff and his wife a daughter, that the mother of the child died on April 6, 1920, and the defendants received the child on April 7, 1920. That the transfer of the custody of the child was with the consent of the plaintiff, but was temporary in nature, to continue only until plaintiff requested the return of the said child into his own custody. That in August, 1922, plaintiff requested and demanded a return of the child, which was refused by defendants.

The affidavit attached to the statement of claim is made by the plaintiff, and is as follows: "Alexander J. Airston, being duly sworn according to law, deposes and says that the facts set forth in the foregoing statement of claim are true and correct, as he is informed, verily believes and expects to be able to prove upon the trial of this case; affiant further says that, as he verily

Airston v. Bollinger et ux.

believes, the defendants, Sidney W. Bollinger and Elizabeth J. Bollinger, his wife, have removed from the jurisdiction of this court and from the State of Pennsylvania to escape service of process to answer for the tort set forth and described in the foregoing statement of claim; affiant further says that the facts set forth in the foregoing statement of claim are those upon which the attachment in this case is founded."

This affidavit is made on "information and belief," based upon facts alleged in the statement of claim. Those facts are peculiarly within the knowledge of the plaintiff, and he should have and is required to make a straightforward affidavit to their truth, the basis of his right to a foreign attachment. Such an affidavit should be explicit and state in positive language and with due particularity the circumstances constituting the grounds of the plaintiff's demand. It stands upon the same footing as an affidavit to hold to bail and is subject to the same rules. In McLennan v. Public Utilities Construction Co., 245 Pa. 567, the Supreme Court said: "The rule to show cause why the foreign attachment issued in this case should not be dissolved was made absolute for the reason that the affidavits to the cause of action were not positive. As early as 1789 it was decided in Miltenberger v. Lloyd, 2 Dallas, 79, that foreign attachments would be dissolved if, under the same circumstances, in the case of a capias, common bail would be ordered. In Jacoby v. Gogell, 5 Sergeant & Rawle, 450, it was held that it was not sufficient for a plaintiff in a foreign attachment to swear to facts from which a jury might or might not infer a contract, and that the oath must be positive as to the making of the contract or to facts from which a contract would be necessarily implied. In Hallowell v. Tenney Canning Co., 16 Pa. Superior Ct. 60, it was said by Rice, P. J., that 'Upon a rule to show cause of action a positive affidavit must be filed, such as would, if false, subject the affiant to indictment for perjury; therefore, the plaintiff's unsworn statement of claim will not be looked to by the court to supply fatal omissions from the affidavit.' Whether a supplemental affidavit should be considered by the court on the hearing of a rule to show cause of action it is unnecessary to consider, since the one offered was no more positive than the original. The averment in each as to the cause of action was to the truth of the facts set forth 'to the best of deponent's knowledge and belief.” ”

In Jacoby v. Gogell, 5 Sergeant & Rawle, 450, our Supreme Court said: "The plaintiff in this case has not sworn positively to a contract, but he has sworn to certain facts from which, perhaps, a jury might infer a contract, and perhaps not. We do not think that sufficient. The plaintiff has sworn cautiously, for which he is to be commended; but if, in his own opinion, the case was so doubtful that he could not swear to a contract, or to such facts as would necessarily imply a contract, the court cannot help him out."

The rule, therefore, seems to be that a party must make affidavit to facts within his knowledge absolutely, or, if he relies upon information, he may allege the facts upon information and belief, together with an averment of his expectation to prove them. It is only where the party making the affidavit does not have personal knowledge of the facts that he is permitted to make an affidavit based upon information and belief. Applying the rule of law to the present case, it appears to us that this affidavit is clearly insufficient.

The act upon which this proceeding is founded (Act of June 13, 1836, P. L. 580) provides that in case there be no person in actual possession of the real estate attached, the sheriff shall publish a copy of the writ for six weeks in one newspaper printed in the county. The sheriff's return in this case

Airston v. Bollinger et ux.

shows that there was no one in possession of the real estate, and does not show that the writ was advertised. It is also admitted by plaintiff's counsel that there was no advertising. In Sterrett v. Howarth, 76 Pa. 438, the Supreme Court said: "In a direct proceeding to set aside a foreign attachment, the court will quash or reverse when the sheriff has omitted to return a service on a person in possession of the land attached or to make publication according to law if the possession be vacant."

And in Buckman v. Somers, 80 Pa. Superior Ct. 377, the court said: "The Act of June 13, 1836, P. L. 572, relating to the commencement of personal actions, provides, in section 49, page 581: 'In the case of real estate, the attachment shall be executed as follows: 1. If the attachment be levied on houses, other buildings or lands, it shall be the duty of the sheriff to leave a copy of the writ with the tenant or other person in actual possession holding under the defendant in the attachment and to summon him as garnishee.' Provision is made in a subsequent paragraph for the service of the writ by advertisement in case there be no such person in actual possession.

"The directions of the statute are mandatory and must be strictly pursued: Sterrett v. Howarth, 76 Pa. 438, 440; Hayes v. Gillespie, 35 Pa. 155; Vandergrift & Forman's Appeal, 83 Pa. 126, 130; Bryan v. Trout, Admin'r, 90 Pa. 492, 493."

We are satisfied that the failure of the sheriff to advertise the writ as required by law is fatal.

For these reasons this rule must be made absolute.

Order. And now, March 11, 1925, rule absolute, writ quashed and attachment dissolved.

From William J. Aiken, Pittsburgh, Pa.

Commonwealth v. Peters.

Husband and wife-Desertion-Divorce.

1. Where a wife forges her husband's name to a note and negotiates the same; forges his name to checks and has them cashed; obtains his Liberty bonds and pledges them for a loan for her own use; contracts bills on her husband's credit after her husband has given her money monthly to pay all bills and rent for use of house, which accounts run over a period of two years: Held, that the wife could not maintain a proceeding for desertion and non-support.

2. Such acts rendered the husband's condition intolerable and life burdensome, and he was justified in withdrawing from the society and fellowship of his wife. Petition for support. Q. S. Somerset Co., Dec. Sess., 1924, No. 69. Uhl & Ealy, for prosecutrix; Boose & Boose, for defendant.

BERKEY, P. J., June 9, 1925.-The parties to this proceeding, James and Olive Peters, were married April 16, 1922, aged twenty-four and twentythree, respectively. He was a miner and she a telephone operator. They went to housekeeping at once after marriage and cohabited until May 30, 1924, when the husband withdrew from the home. The husband, at the time of the marriage, had two Liberty Bonds of the par value of $500 each in the possession of the First National Bank of Rockwood, Pa., for safekeeping, and a deposit in that bank in cash of a considerable sum, to which he added his savings after marriage, so that when he separated from his wife his savings amounted to $2630; but meanwhile he had given the wife money to pay the house rent, money for clothing and for household necessities and comforts, amounting to $1020. The husband, the day of the separation, discovered she

Commonwealth v. Peters.

had let the rent [remain] unpaid for several months, contracted bills among the town merchants, approximately between $400 and $500, and that by forging checks had withdrawn all his moneys in the bank account, forged a note on him, discounted at a Rockwood bank for $300, and by unexplained manipulations by and with the bank officials was enabled to make a loan, using the husband's Liberty Bonds as collateral, whereby she had dissipated the bonds. The husband withdrew from the home the day he discovered her conduct in which she had engaged during the period of their married life.

On Oct. 14, 1924, she made information "that on and prior to the 30th day of May, 1924, deponent and James Peters lived together as husband and wife in the Borough of Rockwood, . . . and on said 30th day of May, 1924, the said James Peters without any reasonable cause left his said home and place of residence and deserted said deponent, and since said date has not contributed to her maintenance and support." The case was returned to this court by the justice of the peace before whom the proceeding was instituted and the parties heard.

This proceeding is under the Act of April 13, 1867, P. L. 78, which provides: "If any husband, . . . being within the limits of this Commonwealth, .. shall separate himself from his wife . . . without reasonable cause," he shall "answer the charge of desertion."

This case may be considered from two viewpoints:

1. Assuming the husband deserted his wife without reasonable cause, the testimony shows she has illegally and wrongfully obtained about $3000 of her husband's money, the legal issues of which are $15 per month. She is a healthy young woman, without any children, capable of earning a fair salary at her business as a telephone operator. She has the corpus of her husband's estate and its earning power, which is sufficient for her support by him under the circumstances surrounding this case.

2. Viewing the case from the standpoint of the husband, that his separation from her was with reasonable cause, which relieves him from the obligation to give her support, what is the legal conclusion? The reasonable causes which justify a husband in quitting and abandoning his wife and which relieve him from maintaining her are such causes or reasons that would entitle him to a divorce: Sterling v. Com., 2 Grant, 162; Butler v. Butler, 1 Pars. Equity Cases, 329; May v. May, 62 Pa. 206; Howe v. Howe, 16 Pa. Superior Ct. 193; the Act of May 8, 1854, P. L. 644; Act of June 25, 1895, P. L. 308. The latter act, in section 3, provides: "Where a wife shall have by cruel and barbarous treatment or indignities to his person rendered the condition to her husband intolerable or life burdensome," such conduct by the wife entitles the husband to a divorce.

The acts or conduct of the wife towards her husband that will entitle the latter to a divorce under the clause of the statute now being considered must be not only such as render his condition intolerable or life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must occur: Schulze v. Schulze, 33 Pa. Superior Ct. 325, 326; Fay v. Fay, 27 Pa. Superior Ct. 328; but it is sufficient that the wife's treatment of her husband renders his condition intolerable and life burdensome: Barnsdall v. Barnsdall, 171 Pa. 625, 631.

It has always been the rule in Pennsylvania that any unjustifiable conduct on the part of the husband or wife which so grievously wounds the mental feelings of the other or so utterly destroys the peace of mind of the other as seriously to impair the bodily health or endanger the life of the other, or which destroys the legitimate ends and objects of matrimony, constitutes VOL. 7-27

Commonwealth v. Peters.

cruelty, although no physical or personal violence may be inflicted or even threatened or reasonably apprehended: Russell v. Russell, 37 Pa. Superior Ct. 348; Yetter v. Yetter, 45 Pa. Superior Ct. 332, 335; Breene v. Breene, 76 Pa. Superior Ct. 568, 573,

Now, applying the law to the facts in the case at bar, what is the inevitable conclusion? The husband was twenty-three years old when married; a miner by occupation. He had a savings account and added thereto continuously. He made ample provision for necessaries and comforts of the wife, yet, meanwhile, during the two years and a month of their married life, the wife deceived him, forged his name to checks, refused to use the money he furnished her for payment of rent and household necessities and comforts as directed, but used his credit to purchase necessaries, rendering him penniless, with an addition of several hundred dollars of indebtedness. Such conduct brings the case within the ruling in Barnsdall v. Barnsdall, 171 Pa. 625, and other cases cited supra. "It is sufficient that the wife's treatment of her husband renders his condition intolerable and life burdensome." A state of domestic affairs is shown by the husband to entitle him to a divorce based upon reason and authority. The court, therefore, concludes the desertion of the husband was with reasonable cause and the wife has forfeited her claim and right to maintenance.

Decree.

Now, June 9, 1925, for the reasons set forth in the foregoing opinion, the case is dismissed. No witness bills to be taxed and the record costs to be paid by the county. From P. G. Cober, Somerset, Pa.

Carden et al. v. Kellerman et al.

Pleading and practice-Promissory note-Consideration-Conclusions of law and fact-Duress-Allegations-Rule for judgment-Affidavit of defence. 1. In setting up duress as a defence to a promissory note, it is not sufficient to aver the simple statement that defendant was threatened with arrest.

2. The averment that a promissory note was given without consideration is a conclusion of law and not an allegation of fact.

Rule for judgment for want of sufficient affidavit of defence. C. P. Allegheny Co., April T., 1925, No. 2543.

Before Evans, Carnahan and Drew, JJ.

Reed, Smith, Shaw & McClay, for plaintiffs.
Harry Irwin Miller, for defendants.

EVANS, J., May 15, 1925.-Plaintiffs brought suit against the defendants, David Kellerman and Jennie Kellerman, on a promissory note dated Nov. 1, 1924, payable March 1, 1925, in the sum of $32,500, to the order of George A. Carden and L. T. McFadden, the plaintiffs in this case.

The defendant, Jennie Kellerman, was not served. David Kellerman filed an affidavit of defence and the plaintiffs took a rule for judgment for want of a sufficient affidavit of defence.

Except the bald statement in the affidavit of defence that the note in question was without valuable consideration, the entire defence set up in the affidavit is contained in the two following paragraphs:

"Fourth. More specifically, the defendant herein sets forth that, on or about the date of the execution of the alleged promissory note, set forth in Exhibit 'A,' an altercation arose between the plaintiffs in the above entitled