Yost v. Yost. if slight and ambiguous, will be aided thereby, not, however, dispensing with an actual delivery, but rendering the gift valid, where it would be deemed invalid if the acts of delivery were uncertain and ambiguous." The court then continues: "The relation of husband and wife is so close, and their every-day life is so blended, that it is often difficult to tell when the husband has perfected a gift to his wife by delivery. . . . The law takes cognizance of these relationships, of the daily contact of such a donor and donee, of the blending, as it were, of their daily walks and acts, and will construe an act to amount to a delivery where it often would not if the donor and donee were not members of the same family. The law does not dispense with an actual or constructive delivery, but it accepts the acts of the donor, if a clear intent to give is shown, as amounting to a delivery." Therein often, and we think in this case, arises a question of fact which must be determined by a jury. Here, the parties had no home of their own. The defendant was away most of the time. When he was in this locality, they were together with the parents of each respectively. He bought the victrola and told his wife he had bought it for her, and if this was so, it was hers as a gift, even though he sent it to his father's home. We think the jury alone could determine this question. In Patterson v. Dushane, 115 Pa. 334, it was held that, though the evidence of a gift be weak, if there be more than a scintilla, it would be error not to submit it to the jury; and in Hess v. Brown, 111 Pa. 124, that there being sufficient evidence to submit to the jury, the question of gift is for them, where the evidence is equivocal or conflicting. We are of the opinion that it was the province of the jury to decide this case, and that, for this reason, the motion should be denied. Motion for judgment non obstante veredicto denied. From George Ross Eshleman, Lancaster, Pa. Harrison v. Welsh. Equity-Contents of bill—Averments as to fraud-Principal and agent— Equity rules-Affidavit to bill-Equity practice-Pleading. 1. Fraud is never presumed, but must be affirmatively alleged and proved by the party who relies upon it. 2. The specific facts and circumstances constituting the fraud alleged must be sufficient in themselves to show that the conduct complained of was fraudulent. 3. A bill in equity for an accounting and restitution of losses alleged to have resulted from the purchase and sale of securities by defendant as plaintiff's agent will be dismissed where fraud is alleged in general terms, but no facts or circumstances are set forth from which specific fraud is shown. 4. There is no statute or rule making an affidavit in any form to a bill in equity a necessary part thereof. Bill in equity for accounting. C. P. No. 5, Phila. Co., Dec. T., 1925, No. 4515. Powell, Ludlow & Schaeffer, for plaintiff. Bell, Trinkle & Bell, for defendant. MARTIN, P. J., March 26, 1926.-The bill in equity sets forth that William W. Harrison, a gentleman seventy-five years of age, for many years past invested a substantial portion of his personal property in bonds and other securities, using as his agent the defendant, a dealer in securities; that during this time the plaintiff constantly relied upon the defendant's advice as to the character of the securities and the advantage to him in disposing of cer Harrison v. Welsh, tain securities and acquiring others; that he depended and relied implicitly and exclusively upon the defendant's advice; that the relationship between the plaintiff and the defendant was a highly confidential one in matters pertaining to investments; that at a certain particular time, to wit, during the week of Nov. 16, 1925, defendant recommended to the plaintiff that he surrender certain of his securities and take in lieu thereof certain other securities, among others, $12,000 par value of Youngstown & Ohio River Railroad first mortgage 5 per cent. bonds, and that the plaintiff's secretary ascertained and informed the plaintiff that these particular bonds, instead of being 85% (less), were then selling on the market at a quotation of 523, a difference of thirty-three points in favor of the defendant and to the disadvantage of the plaintiff; that the plaintiff thereupon had certified public accountants go over the available records of his transactions with the defendant for the last six years and found that he had been unlawfully deprived of sums of money in excess of $239,000. Plaintiff further avers that his losses for prior years are unknown to him because he has not kept the records of the same. Plaintiff further avers that these losses sustained by him were due to the gross fraud of the defendant in violating the relationship of agency, especially of the confidential nature of the relationship existing between them. He furthermore avers that the defendant has in his possession records which will reveal the true state of the accounts between the plaintiff and defendant, and, further, that he has not been able to procure said records. In the prayers plaintiff asks: 1. For a full and complete accounting during the period of said agency and confidential relationship. 2. That the defendant shall be directed to reimburse plaintiff to the extent to which it may be determined that he has illegally profited by the breach of the relationship heretofore existing between them. 3. For such other and further equitable relief as to this honorable court shall seem meet. The bill in equity does not contain the necessary specific averments of fraud upon which to base the cause of action. Rule 34 of the Equity Rules of this jurisdiction states: "Every bill shall contain, in a concise and summary form, a statement of the facts on which the plaintiff relies." Rule 48 states: "If plaintiff desires discovery, he should specify to what extent it is desired." The basis of this cause of action is fraud. "Fraud is never presumed, but must be affirmatively alleged and proved by the party who relies upon it:" 27 Corpus Juris, 44-45. The specific facts and circumstances constituting the fraud must be stated, and the facts so stated must be sufficient in themselves to show that the conduct complained of was fraudulent: 21 Corpus Juris, 412. This same statement is well expressed in Story's Equity Pleading (10th ed.), 351 (note A): "A general allegation of fraud, however strong in expression, is insufficient if there is no statement of the circumstances relied on as constituting the alleged fraud." In Leberman v. Leberman, 18 Phila. 254, Allison, J., said: "A general charge of fraud will not avail. The facts on which the charge of fraud is founded must be clearly and specifically stated; nor is it enough that they are inferentially set up." There are a number of cases in this jurisdiction that state that where a party is charged with fraud, he has a right to know in advance just what he is required to meet: Small v. Boudinot, 1 Stock. Ch. N. J. 381; Smith's Harrison v. Welsh, Admin'r v. Wood, 42 N. J. Eq. 563; Finletter v. Appleton, 195 Pa. 349; Hibbs v. Sedlock, 26 Dist. R. 794; Bovaird v. Seyfang, 200 Pa. 261. We must, therefore, have the specific allegation of fraud affirmatively alleged in the bill in equity. Monaghan, J., in Hibbs v. Sedlock et al., 26 Dist. R. 794, said: "A general allegation of fraud is not sufficient. The fraudulent acts must be sufficiently set out so the court may, from the face of the bill, see that the acts complained of, if true, were fraudulent: Daniell's Chancery Practice (4th ed.), § 324. The answer in the form of a demurrer also complains about the form of the affidavit made by the plaintiff, wherein he swears that "the facts set forth are true and correct to the best of his knowledge, information and belief." In Venango County v. Penn Bridge Co., 14 Dist. R. 221, Criswell, P. J., said: "We have not been cited to, nor do we know of, any statute or rule making an affidavit in any form to a bill in equity a necessary part thereof." 21 Corpus Juris, § 328, states: "In the absence of statute or rule of court requiring verification, as a general rule, neither a bill in equity nor an amendment thereto need be verified." There is nothing in the Equity Practice Rules providing for a form of affidavit. The plaintiff has followed the form that has been used in the civil [law] side of the court, and as such it is sufficient. And now, March 26, 1926, the preliminary objections to the bill filed in this case, to wit, that the facts are so insufficiently averred that it is impossible for defendant to make an adequate answer to plaintiff's claim, or to know to what extent discovery is desired, are sustained, and leave is granted plaintiff, within ten days, to amend the bill to obviate the objections. Public officers - Compensation - Clerk of Quarter Sessions-Resignation and reappointment—Act of June 29, 1923. Where the Clerk of the Court of Oyer and Terminer and Quarter Sessions in a county of the sixth class assumed office in January, 1922, resigned after the passage of the Act of June 29, 1923, P. L. 944, and was immediately reappointed by the Governor to fill the vacancy caused by his resignation, he is not entitled to the salary given by the act, inasmuch as it expressly provides that "a county officer in office at the date of the approval of this act . . . shall continue to collect and receive the fees now provided by law." ... ... Demurrer to bill in equity. C. P. Carbon Co., June T., 1924, No. 1. William G. Thomas, for plaintiff. James M. Breslin, J. C. Loose and James Smitham, for defendant. RENO, P. J., 31st judicial district, specially presiding, Dec. 21, 1925.— Kuehner was elected Clerk of the Court of Quarter Sessions in November, 1921, and assumed office in January, 1922. The office was then upon a fee basis. After the approval of the Act of June 29, 1923, P. L. 944, which fixes a salary for that office, Kuehner resigned and Governor Pinchot immediately appointed him to fill the vacancy created by the resignation. Kuehner claimed the salary provided by the Act of June 29, 1923. Complainant, a taxpayer, challenged his right by his bill in equity. By an opinion filed July 17, 1924, a demurrer to complainant's bill was sustained and a decree nisi dismissing the bill was entered. Thereafter, complainant Branch v. Berger. No. 2. amended his bill. To the amended bill a new demurrer has been filed. The case is before us upon this demurrer. It will be remembered that the bill originally charged that Kuehner and the Governor had entered into a conspiracy to defeat that provision of the Constitution (article III, section 13) which forbids the increase of the emoluments of an officer after his election or appointment, and that, as a consequence, Kuehner's appointment was fraudulent and void. This, we held, required an investigation into the motives of the Governor in exercising his executive functions, and this being a non-justiciable question, we declined jurisdiction: 6 D. & C. 320. To this ruling we adhere. case. The bill also charged, and the amendments renew the charge, that Kuehner's claim to the salary, independently of the averment of a conspiracy, involved a violation of the same provision of the Constitution. We suggested, in the same opinion, that the constitutional provision did not apply to this The Constitution forbids an increase of emoluments of public officers after their election or appointment, but does not forbid an increase of emoluments during the term for which they are elected or appointed. The effect of this distinction is that, since Kuehner now holds the office by an appointment made subsequent to the approval of the Act of June 29, 1923, the Constitution does not prohibit his taking the salary. The case would be different if the Constitution prohibited an increase during the term for which an officer was elected. In that case, Kuehner could not claim any increase made effective by legislation enacted during the period of four years after January, 1921. However, what we said in the opinion of July 17, 1924, was a mere suggestion, obiter dicta, and we are repeating it as such. The ultimate decision of the case cannot rest upon that ground. The effect of the amendments was to introduce a new ground of relief into the suit; a contention founded upon a provision of the act. The Act of June 29, 1923, § 10, P. L. 944, provides: "This act shall take effect on the first Monday of January, 1924, and shall not be construed to apply to any county officer in office on the date of the approval of this act, and any such officer shall continue to collect and receive the fees and salary now provided by law." Kuehner is a county officer. He was in office on the date of the approval of the act. Hence, he "shall continue to collect and receive the fees and salary now provided by law;" that is, the fees effective prior to the passage of the act. This seems very plain, and the arguments whereby Kuehner seeks to avoid this plain mandate of the law are unconvincing. That he resigned after the passage of the act is without force, since he was admittedly a county officer in office on the date of the approval of the act, and, therefore, within its purview. It goes for nothing to determine whether the words "county officers" refer to the office or to the individual holding it; however construed, the words are effective to prevent officer and individual alike from enjoying the salary therein provided. Nor does it avail him anything to inquire what would have happened if the Governor had appointed another to fill the vacancy caused by his resignation; we may readily concede that the other would have enjoyed the salary without also conceding that Kuehner, who was a county officer in office at the date of the approval of the act, is likewise entitled to it. And, finally, although there is some force in the contention that the language of section 10 is sufficiently broad to preclude Kuehner from receiving the salary even in the event of a re-election, the correct conclusion to be drawn is that the "county officer in office at the date of the approval of this act . . . shall continue to collect and receive the fees . . now provided by law" only VOL. 7-42 Branch v. Berger. No. 2. for and during the terms of office which he was enjoying at the time of the approval of the act. It will be observed that there is a decided difference between the provision of the Constitution and that of the act. The Constitution prohibits the increase or decrease of emoluments of officers after their election or appointment. The act provides that officers in office on the date of approval shall be exempt from its operation. In the difference between these two provisions will be found the legislative intent. The legislature, realizing, doubtless, that the provision of the Constitution might be evaded by a resignation and a subsequent reappointment, enacted language which made such evasion impossible. But, whatever may have been the legislative intent, it is clear that the provision applies to Kuehner and prevents him from enjoying the benefits of the statute. Plaintiff's amended bill having thus been shown to contain a statement of a case cognizable in equity, the demurrer must be overruled. Now, Dec. 21, 1925, the demurrer is overruled and dismissed and defendant shall, within fifteen days from this date, file an answer under penalty of having the bill taken pro confesso. From Jacob C. Loose, Mauch Chunk, Pa. Commonwealth v. Smith. Criminal law. ·Adultery · · Divorce — Decree of another state — Invalid decree-Remarriage of libellant. 1. An order annexed to a decree in divorce of another state, that the decree is not to become absolute until six months from the date of its entry, has no extraterritorial effect. 2. If the libellant in such proceeding marries again in Pennsylvania, the marriage is not void ab initio. 3. A decree of divorce originally secured through fraud may be vacated by the court entering it, although a marriage has since been contracted on the faith of such decree. 4. If the respondent, by proceedings after the expiration of the six months, secures an order vacating the decree of divorce on the ground of fraud, the Pennsylvania marriage of libellant becomes void on the date of the order of vacation. 5. In such case, libellant cannot be convicted of adultery where there is no evidence that he had carnal connection with his second wife after the date of the vacating order. Motion in arrest of judgment. Q. S. Lehigh Co., Oct. T., 1924, No. 14. Groman & Rapoport, for defendant. IOBST, J.-On Oct. 6, 1924, the grand jury found an indictment against Harvey H. Smith, charging him with the crime of adultery with one Blanche Colly. Upon trial the defendant was found guilty as indicted. The defendant now moves for a new trial and in arrest of judgment, and assigns numerous reasons therefor. After a careful review of the entire case, we are of the opinion that the final solution of the whole proposition is in answer to the second reason in arrest of judgment, to wit: "The Commonwealth failed to produce any testimony to show that the defendant had carnal connection with any woman not his lawful wife." The facts are these: On Oct. 11, 1921, the defendant obtained a divorce from his wife, Nellie E. Smith, in the State of Oklahoma, to which was annexed the following order, to wit: "It is further ordered by the court that this decree do not become absolute and take effect until six months from the date hereof." On Oct. 22, 1921, the defendant married Blanche M. Colly at |