Commonwealth v. Separito.

than five months prior to the date on which the indictment charges that the offence was committed: Com. v. Nailor (No. 1), 29 Pa. Superior Ct. 271. That case and the cases cited seem to make it clear that if the error in date had occurred in the indictment and it was not amended, the judgment should have been arrested on account of that defect, but we do not think the same reasoning applies to the error in the information which is amended, in effect, by the indictment. After indictment and entry of bail, objections to the magistrate's transcript or to the affidavit on which the warrant was issued cannot be raised on a motion to quash: Com. v. Costello, 18 Dist. R. 1067; the court there holding, on authority of Com. v. Brennan, 193 Pa. 567-569, that the defects in the affidavit were not properly before the court.

The defendant might have taken advantage of the defects in the information on a writ of habeas corpus. In view of the fact that the defendant was committed after hearing had before the magistrate, and gave bail for his appearance at June Sessions, 1925, when the bill of indictment was found, and again for his appearance at December Sessions, 1925, without objections made to the information until his case was called for trial, he has waived all irregularities in his arrest and detention upon the information in this case: Com. v. Kipnis, 26 Dist. R. 927; Com. v. Dingman, 26 Pa. Superior Ct. 615; York City v. Hatterer, 48 Pa. Superior Ct. 216; Com. v. Williams, 54 Pa. Superior Ct. 545.

While the information was not in accordance with proper practice and might not have been sufficient to have detained defendant in custody, had advantage been taken thereof at the proper time, yet it seems that, after having given bail for appearance at court and an indictment having been found thereon, the defect cannot be taken advantage of on motion to quash or in arrest of judgment: Com. v. Butler, 33 Pa. C. C. Reps. 145, citing Com. v. Mallini, 214 Pa. 50; Com. v. Dingman, 26 Pa. Superior Ct. 615; Com. v. Brennen, 193 Pa. 567.

In Com. v. Coleman, 60 Pa. Superior Ct. 512-516, it is recited that: "The information was made before the magistrate on Feb. 24, 1913. That officer, evidently by mistake, laid the past transaction, the history of which is fully recited, as having occurred on the same date on which he took the information. The pleader who drew the indictment, obviously with the information before him, laid the transaction as of the date stated in the information. The indictment was found by the grand jury March 12, 1913. Now, upon the trial, the proof disclosed that, although the information was made in February, 1913, the transaction out of which the defendant's alleged guilt arose actually occurred about May 1, 1911. That was within the period of two years before the bill was found. The whole of the evidence disclosed there had been but a single transaction between the defendant and the prosecutor." Notwithstanding the variance in date between both the information and indictment and the proof, the Superior Court held that the court below did not err in refusing defendant's motion to quash the indictment. The name of the month might have been changed in the indictment by amendment: Myers v. Com., 79 Pa. 308-311.

In the case of Com. v. Brennan, 193 Pa. 567-569, the information was not sworn and subscribed to by the complainant. The court, in a per curiam opinion, said: "The defendant was tried upon an indictment found regularly by a grand jury upon examination of witnesses after information made before a magistrate. A trial was had upon the merits and the defendant was duly convicted of murder of the first degree. On the trial, a motion was made to quash the indictment because it was not found after an information sworn to

Commonwealth v. Separito.

and subscribed before the committing magistrate. While the defendant might have been heard on that subject upon a proceeding to be discharged from custody on the ground of an illegal commitment, it is certainly too late after indictment found upon the trial of the cause. The finding of the indictment cannot be invalidated for any such reason."

"It has been held repeatedly that where time is not of the essence of the offence, the Commonwealth can show any time prior to the finding of the indictment and within the period of limitation: Com. v. Ryhal, 274 Pa. 401; Com. v. Powell, 23 Pa. Superior Ct. 370; Com. v. Coleman, 60 Pa. Superior Ct. 512:" Com. v. Bridges, 82 Pa. Superior Ct. 92-94.

There can be no doubt whatever that if the mistake in date which appears in the information had been carried into the indictment, the indictment could have been amended upon the trial of the case, even after verdict. The case of the Com. v. Tassone, 246 Pa. 543, is sufficient authority for this statement. In that case, six days after verdict, counsel for the defendant moved the court in arrest of judgment "on the ground that the indictment upon which he had been found guilty charged the offence as having been committed more than six months after the trial."

This court is of the opinion that the misstatement of the date of the commission of the offence in the information could only have been taken advantage of by the defendant by a proceeding to be discharged from custody, and having given bail to two successive terms of court and allowed a whole term to go by after a true bill was found by the grand jury without objection to the variance in dates between the information and the bill of indictment, he should not now be discharged upon a mere technical objection which did him no harm at the trial. The information was not before the jury, nor was it admissible at the trial as primary evidence of the date of the offence: Com. v. Craig, 19 Pa. Superior Ct. 81-96. The true date was stated in the indictment and all the evidence at the trial had reference to that date, and we cannot find from the whole record any reason to say at this time that the rights of the defendant had been disregarded or that he has not had a fair trial and has [not] been duly convicted on proper evidence.

And now, Feb. 8, 1926, there being no sufficient reason assigned either for the granting of a new trial or arrest of judgment in this case, the rules are discharged and the defendant is directed to appear in this court for sentence. From S. M, Williamson, Waynesburg, Pa.

Marriage of Nurses.

Nurses-Registration-Marriage-Change of name-Act of June 8, 1923,

P. L. 683.

1. Where a registered nurse marries, she may, upon surrender of her registration card, receive a new card in her married name.

2. The law confers upon a wife the surname of her husband upon her marriage. Department of Justice. Opinion to Mrs. Helene S. Herrmann, SecretaryTreasurer, State Board of Examiners for Registration of Nurses.

BROWN, Dep. Att'y-Gen., March 9, 1926.-On Oct. 26, 1911, Mildred Reighard was registered as a registered nurse with the State Board of Examiners for Registration of Nurses. On July 13, 1922, she was married to James M. Rose, and from that time has been known as Mildred R. Rose.

The Act of June 8, 1923, P. L. 683, is an act relating to the registration and re-registration of nurses, and, in section 1, provides as follows: "That all persons registered as registered nurses with the State Board of Examiners

Marriage of Nurses.

for Registration of Nurses, and all persons registered with said board as licensed attendants, shall, in every year following the passage of this act, during the month of January, again cause his or her certificate to be recorded in the office of the State Board of Examiners for Registration of Nurses."

In January, 1925, when Mildred R. Rose applied for re-registration, she asked that her card should be issued in the name of Mildred R. Rose, the name she legally bore. She was informed that a ruling had been made "that all names shall remain on re-registration cards as they appeared when the nurse first received her registration," and her re-registration card was issued for 1925-1926 in the name of Mildred Reighard.

This department has been asked for an opinion as to whether or not a nurse, registered originally in her maiden name, may, after marriage, have her re-registration card issued to her in her married name.

"The meaning of the word 'name' is given as the distinctive appellation by which a person or thing is designated or known, or, as better given by another lexicographer, that by which an individual person or thing is designated and distinguished from others. The law recognizes one Christian name or given name and one family surname: Bouvier's Law Dict., 2285; 21 Am. & Eng. Ency of Law, 306. At marriage, the wife takes the husband's surname:" Uihlein v. Gladieux, 78 N. E. Repr. 363.

It is the common law doctrine that the husband is the head of the family, and, in accordance with this doctrine, it is the general rule fixed by custom at least that marriage confers upon the wife the surname of the husband: 15 Am. & Eng. Ency of Law, 812.

By custom, a woman at marriage loses her own surname and acquires that of her husband: 21 Am. & Eng. Ency of Law, 312. And in Freeman v. Hawkins, 77 Texas, 498, it was held that the law confers upon a wife the surname of her husband upon marriage.

Mildred Reighard having married, now legally bears the surname of her husband, and is entitled to legally use the name of Mildred R. Rose.

The Act of April 14, 1893, P. L. 16, provides that whenever any female notary shall marry, she shall return her commission to the Governor, stating the fact of her marriage and giving her married name, and the Governor shall thereupon issue to her a new commission conforming to the change of

name.

In the case of a notary public who has had his name changed by decree of court, this department has held that the commission was issued to a person certain, and there was no reason why that person should not have a commission in the new name. Also, in the case of a doctor who had his name changed by legal proceedings, this department held that the license to practice medicine was issued to a person certain and that a license should be given to the person in his new and legal name; that the license was issued to the person and not to the name.

The person

The same reasoning applies to the re-registration of a nurse. to whom registration was originally issued having changed her name by marriage in a way recognized and approved by the law, she should not be deprived of any of her rights for doing so. She is entitled to all the rights which were hers under her former name, and one of those rights was to practice as a registered nurse, and she ought not, as Mildred R. Rose, to be compelled to practice under a re-registration issued in the name of Mildred Reighard.

A person's name is the mark by which he is distinguished from other people, and as Mildred R. Rose is now the legal name of her who formerly

Marriage of Nurses.

bore the name of Mildred Reighard, she should be give a re-registration card in her legal name, for the only thing the law looks to is the identity of the individual.

It has been uniformly held by the courts that a change of name, if legally brought about, should not deprive the person so changing of any of the rights enjoyed before the change was made.

Probably the leading case on a change of name is Petition of Snook, 2 Pitts. Repr. 26, and in that case the court, speaking of a changed name, held: "Any contract or obligation he may enter into or which others may enter into with him by that name, or any grant or devise he may hereafter make by it would be valid and binding, for as an acquired known designation it has become as effectively his name as the one he previously bore."

There should be no difficulty in keeping your records by index and crossindex, so that the registration of Mildred Reighard and the re-registration of Mildred R. Rose will be shown and that they are the same person.

The conclusion arrived at in this opinion is intended to apply to all licenses, commissions and registrations issued by State agencies.

You are, therefore, advised that if Mildred R. Rose returns the re-registration card issued to Mildred Reighard, a new card should be issued to Mildred R. Rose, showing that she is a registered nurse under that name.

Tenants in common against his two co-tenants.

Necessary repairs - Joint action by one tenant

One who has furnished the materials and work for necessary repairs on a building jointly owned may maintain a joint action against the co-tenants for their proportional shares of the cost, and this is the case although one of the defendants may have contracted to pay his share of the repairs.

Statutory demurrer. C. P. Clearfield Co., Sept. T., 1924, No. 472.

Frank Hutton, Singleton Bell and Leo R. Brockbank, for plaintiff.
Hartzwick, Arnold & Platt, for defendants.

CHASE, P. J., March 16, 1926.—The plaintiff in his amended statement alleges a tenancy in common by the defendants in a certain building, and that the one tenant in common, Margaret Love, verbally contracted with the plaintiff to have certain work done on the building, part of which, it is alleged, was necessary for the preservation of the building, while part of the work and material furnished was for certain alterations in the property; that this work was performed by the plaintiff in accordance with the verbal contract made by the said Margaret Love. It is not alleged that N. R. Moore, the other co-tenant and defendant, had anything to do with the making of the contract or in any way authorized the work. The plaintiff seeks to hold Moore jointly liable with Love, on the grounds that the work was done partly because necessary and the remaining work with the knowledge of Moore, who made no objection. The defendants, by their affidavit of defence, deny any contractual obligation between Moore and the plaintiff which would permit an action against the defendants jointly or against N. R. Moore individually by the plaintiff.

The court is not called upon under these facts to deal with the question of liability of one joint-tenant to another for work done, whether the same be

Irwin v. Love and Moore.

for necessary repairs or improvements done under such circumstances as amount to an authorization or ratification. But assuming that, because of the existence of both conditions, the liability existed as between the jointtenants, the defendant contends that the plaintiff cannot maintain this joint action, claiming that if this joint action is permissible, N. R. Moore, the joint-tenant, is deprived of his defences under the law as against his co-tenant, Love, as follows: First, the right of any set-off the co-tenant may have as against the other co-tenant; second, the right to protect himself against liability for the whole obligation contracted by the co-tenant in the event of the insolvency of the other co-tenant. The defendant's position in fact amounts to nothing more or less than to hold that the only person the plaintiff, who performed the work and furnished the material in this jointly owned property, could sue, unless an express contract was shown for the work done on the jointly owned property, would be the co-tenant with whom he contracted, and the co-tenant, Margaret Love, is the only person who could sue her co-tenant, when the facts showed the only rights to bind the co-tenant by the other co-tenant were because of work necessarily performed for preservation or done under an authorization or ratification.

A tenant in common is liable to his co-tenant for repairs absolutely necessary to the buildings already erected: Kelsey's Appeal, 113 Pa. 119. As to whether acts of a co-tenant amount to estoppel to deny liability to other co-tenants depends upon the circumstances; each tenant is entitled to the common possession of the whole land, providing he does not exclude his fellow from a similar possession, and each may lawfully improve the property without the consent of his co-tenant, although, of course, at the risk of not being fully reimbursed: Kelsey's Appeal, 113 Pa. 119; Logan v. Gardner, 136 Pa. 588; Logan v. Gardner, 142 Pa. 442. We can go no further than to say the plaintiff brings his action subject to the limitations of the law as to the rights one tenant in common has to bind the other co-tenant for improvements. The plaintiff must prove those relations and conditions which would enable one tenant to recover from the other; but showing those essential facts in the absence of authority to the contrary, and we are not able to find authority either way, we feel the right to bring a joint action should be permitted. If it is permitted, a co-tenant may suffer the consequences complained of by the defendant herein, namely, set-off and liability for the entire claim because of insolvency of a co-tenant. If the action is not permitted, the plaintiff, who furnished the material and furnished the work on the property jointly owned, who acted under an express contract with one of the co-tenants, and by reason of the contract of liability of the other co-tenant for his proportionate share, partially by reason of the law as it applies to necessary repairs and partially by reason of acts of authorization or ratification by estoppel, would suffer the loss of his entire claim which the co-tenant by his acts impliedly contracted for and had done and received the benefits from.

As to the amount of the recovery, and whether or not the plaintiff can recover the full amount of the contract or only a proportionate amount of the same, we are not at this time called upon to determine; the only question involved in this issue is whether or not, under the circumstances, the plaintiff can maintain this joint action against the co-tenants in common.

Now, March 16, 1926, motion for judgment for defendants, Margaret Love and N. R. Moore, is overruled, exceptions noted and bill sealed to the defendant. Judgment to be entered for the plaintiff, unless affidavit of defence be filed within fifteen days from this date. From John M. Urey, Clearfield, Pa.