State of New York continuously since prior to the year 1908. His depositions were taken on June 28, 1912. It will therefore be seen from this uncontradicted testimony that defendant has been in Tarrytown, New York, continuously for a period of over four years. This witness further testified that in a proceeding, on behalf of the plaintiff in this case, supplementary to execution against defendant, that this defendant was examined under oath respecting her residence and domicile. The certified copy of this testimony shows that defendant testified that she lived at the Irving School, Tarrytown, New York; that she was the House Mother of the Irving School; a married woman; that her husband's name is Richard T. Leaf, who resides at 153 North Fourth street; that she owns real estate in Pennsylvania; that she had five children, none of whom are with her, but that they are in Philadelphia and Brooklyn; that she uses the income derived from her real estate for her support and maintenance; that her husband does not contribute to her support or that of the children. We have therefore a person whose physical presence for a period of over four years has been in Tarrytown New York; that she testified under oath that she lived there; that she is separated from her husband and receives from him no support; that her occupation is that of a House Mother at Irving School, located in New York State.

As bearing upon the intent necessary to constitute her a non-resident of Pennsylvania at the time of the issuance of the writ, at the argument it was claimed by defendant's counsel that the husband's residence controls the wife's. This is undoubtedly the case when the two are living together, and is thus stated in Barning, Appellant, vs. Barning, 46 Pa. Sup. Ct. 291: "Following out the theory of an identity of person, the law fixes the domicile of the wife by that of the husband and denies to her during cohabitation the power of acquiring a domicile of her own separate and apart from him: 14 Cyc. of Law and Procedure, 846." It is, however, also equally true that when she is living separate and apart from her husband she can acquire a domicile of her own. This is recognized in all divorce cases in our state, where the wife, upon the ground of her bona fide residence in the state, is entitled to institute a divorce proceeding against the husband, a

resident of another state: Reed, Appellant, vs. Reed, 30 Pa. Sup. Ct. 229, 236. This is also the law in New York. In White vs. Clover, 116 N. Y. Sup. 1059, the court, on page 1060, say: "A husband's domicile is prima facie that of the wife; but, when the necessity arises which justifies the wife in leaving her husband, she may acquire a domicile of her own. Hunt vs. Hunt, 72 N. Y. 217, 242, 243, 28 Am. Rep. 129." In Elwell vs. Elwell, 128 N. Y. Sup. 495, it is held: "Where a husband without lawful cause excludes his wife from their home in another state, she may acquire an independent and separte domicile in New York."

In 14 Cyc. of Law and Procedure, 858, the presumptive domicile arising from presence is thus stated: "The place of residence is prima facie that of domicile;" in A. & E. Enc. of Law, Vol. 10, page 22: "The presumption is that the place where a person lives is his domicile when he has no family elsewhere, but this presumption may be rebutted." This presumption exists in Pennsylvania. We have, in Carey's Appeal, supra, page 205,"So, though the residence be taken for a temporary purpose, intention may change its character to a domicile, but prima facie the place of residence is the domicile until other facts establish the contrary;" in Hindman's Appeal, supra, page 469: "This unequivocal act of moving from the state and taking up his residence in another state, is very strong evidence of the establishment of a domicile in the latter;" in case of Guier and O'Daniel, reported in 1 Binney's Reports, 348, note (a): "A man is prima facie domiciled at the place where he is resident at the time of his death; and it is incumbent on those who deny it, to repel this presumption of law, which may be done in several ways." This presumption also exists in New York: Kennedy vs. Ryall, 67 N. Y. Rep. 379, 386. The defendant did not attempt by testimony to rebut this presumption thus created. On the contrary, her sworn statement is that she lived at Tarrytown, New York, and that her occupation, that of a House Mother, is there. By the term "domicile" in its ordinary acceptation is meant the place where a person lives or has his home: Fry's Election Case, supra, 309.

From a careful consideration of the entire evidence, together with the law bearing thereon, we find that at the

time of the issuance of the writ of foreign attachment, the defendant was not a resident of Pennsylvania.

Rule to quash is discharged.

MORRISON vs. PAGE WOVEN WIRE FENCE CO.

Witnesses-Adverse Interest Under Section 5 of Act of 23 May, 1887, P. L. 158, in a Proceeding by Widow Under the Acts of 15 April, 1851, P. L. 699, and 26 April, 1855, P. L. 309.

Where a suit is brought by a widow under the Acts of 15 April 1851, P. L. 669, and 26 April, 1855, P. L. 309, although predicated on the injury resulting from her husband's death is nevertheless for a cause of action he did not have nor did it pass from him in any way, but is for the vindication of a right bestowed upon her personally, and the adverseness of the interest of a witness to that right does not disqualify him under the Act of 23 May, 1887, P. L. 158, for the person possessed of that right, is in full life and may fully speak for the vindication of the right, no right "of such deceased party" having passed. The situation, however, would be different where, under the 18th section of the Act of 15 April, 1851, P. L. 669, suit was brought by the injured party for the injury he sustained, and when he subsequently died, the action survived and was to be carried on by his legal representative; in which case the interest which renders a witness incompetent is an interest which shall "be adverse to the said right of such deceased pary."

In the Court of Common Pleas of Westmoreland County, No. 508 November Term, 1911. Motion for new trial.

Gaither & Whitten, for Plaintiff.
Moorhead & Smith, for Defendant.

McConnell, J.-The verdict in this case was in favor of the plaintiff for the sum of eleven thousand dollars. There is a motion for judgment non obstante veredicto. The defendant at the trial asked for binding instructions in favor of the defendant, which motion, for reasons then given was refused by the Court. The present motion is based on the same grounds as the motion for binding instructions was based on, and must be refused, for the reasons then given. The whole record requires a submission of the case to the jury.

There is also pending a motion for a new trial. The second and third reasons relate to the rejection of the

proposed testimony of George S. Bowes, superintendent of the open hearth department. The testimony of the witness was pertinent to a material point in the case. If he was a competent witness, the injury involved in the rejection of his testimony can only be cured by granting a new trial. He had answered on his voir dire that he was a stockholder in the defendant company. Objection was made that that kind of an interest in the suit rendered him incompetent, David Morrison, on account of whose death the suit was brought, being dead. The objection and the answer thereto then only invited attention to the kind of interest the witness had in the defendant company, and called for an answer predicated on the nature of that interest. The Act of 23 May, 1887, section 5, P. L. 158, provides as follows: "Nor where any party to a thing or contract is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party," etc. Whether a stockholder's interest in the defendant company would be of such a nature as to suffer diminution in the case of a verdict against his company, was the point to which attention was directed when the evidence was excluded. It has been held that, at common law, the interest of a stockholder in litigation whereby the assets of the corporation would be increased or diminished made him directly interested in the result, and he was, therefore, incompetent as a witness. In Gautt vs. Cox & Sons, 199 Pa. 298, a witness had been rejected because he was an officer of a corporation. The Court says: "This was technically an error. The officers of a corporation not shown to be stockholders, prima facie, are mere agents or servants having no direct interest in the suit which precluded them from being witnesses at common law, or enables the opposite party to call them under the statute as if for cross examination." The cases are collected by Judge Van Swearingen in the case of Greensburg B. & L. Assn. vs. Bates, 19 District Rep. 224. It seemed to the

Court on the point of view then taken that the interest of the witness was of such a nature as to exclude him because it was an interest to be affected by the result, and it was adverse to the right of the deceased.

But a question, then unconsidered, now presents itself: What right of the deceased was at issue in the suit to which the interest of the witness was adverse? To exclude the witness under the Act of May 23, 1887, P. L. 158, he must be a "person whose interest shall be adverse to the right of such deceased * party." This suit is brought by Margaret Morrison, the widow of David Morrison, the deceased, to recover for the pecuniary loss that she and the minor children sustained by reason of the death of David Morrison.

The general assemlby in the act of April, 1851, and in the Act of April 26th, 1855, P. L. 309, has created the right that has been sued for in this case and has bestowed it directly on the present plaintiff and not on the deceased. In section 1 of the last mentioned act, we find "that the persons enitled to recover damages for an injury causing death shall be the husband, widow, children or parents of the deceased and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors." This suit is brought pursuant to that provision. David Morrison brought no action for his injury. This suit although predicated on the injury resulting from his death, is, nevertheless, for a cause of action that he did not have, and did not assign, nor did it pass from him in any way. It was a right directly bestowed on the widow by the act of assembly, and not one coming to her through any form of trasmission from her husband or his estate. The sum recovered was in no wise to be answerable for any debts that he might have had, but was designed to compensate his widow and children for the loss they sustained, on their own account, by the premature death of the husband and father. In the case of Hamill vs. Supreme Council, 152 Pa. 537, a beneficial association had contracted to pay to a wife of a member a certain sum, on the death of her husband. In a suit by her to recover the benefit thus secured for her, after her husband's death, it was held that the surviving members were competent