tenant, left the state, and never made any attempt to communicate with his wife, or to give her any intimation as to where he had located. In such a case, the law will presume that the parties separated by mutual consent." In Middleton vs. Middleton, supra, it was also held that, "where a husband has suggested and encouraged a separation between himself and his wife, he cannot charge her with wilfull and malicious desertion." Now, in this case, the libellant testifies that the respondent left him and went to Philadelphia, without cause; but he does not deny that, after September 1, 1910, he ceased to rent and occupy the premises in which they had before lived, and he seems to have paid the storage on her goods at Altick's warehouse, and in conjunction with their son, subsequently shipped these goods to the respondent in Philadelphia. On the other hand, the respondent, her son and her daughter all testify that she did not desert him; that there was an arrangement between them that she should go to Philadelphia, where she could make a living, and that he would contribute five dollars a week towards her support. The weight of the evidence supports this conclusion, and the master was well warranted in sustaining it. We cannot see that he has made any mistake in his recommendation in this regard. Does, then, the evidence support the charge of cruel and barbarous treatment? In Barnsdall vs. Barnsdall, 171 Pa., 625, it was held that, "under the Act of May 8, 1854, P. L., 644, a divorce may be granted to a husband where his wife has, by cruel and barbarous treatment of him, rendered his condition intolerable or life burdensome, although such treatment may not have endangered his life." That Act reads: "III. Where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome," whereas the Act of June 25, 1895, P. L. 308, reads: "3. Where a wife shall have, by cruel and barbarous treatment, or indignities to his person, rendered the condition of her husband intolerable or life burdensome.' The difference in phraseology, however, does not change the law as it was formerly laid down upon this subject. In Russell vs. Russell, 37 Sup., 348, it was held that "any unjustifiable conduct on the part of either the husband or the 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 utterly destroys the legitimate ends and objects of matrimony, constitutes cruelty, although no physical or personal violence may be inflicted, or even threatened or reasonably apprehended;" but "to warrant the granting of a divorce on the ground of the conduct on the part of either the husband or wife as to render the condition of the other party intolerable and life burdensome, where there is no proof of overt bodily harm actually inflicted or threatened, the evidence should be strong and convincing, the course of ill-treatment complained of must have been long continued, and of a serious character." In Schulze vs. Schulze, 33 Sup., 325; Rice, P. J., in delivering the opinion of the Court, said: "It is clear, both upon principle and authority, that whatever directly tends to show a course of treatment which rendered the condition of libellant intolerable and his life burdensome, is admissible in evidence, and that, in determining whether there was cruel and barbarous treatment within the meaning of the statute, the whole conduct of the wife toward her husband during the period of the alleged ill-treatment should be considered. *It is true that the charge may be made out without proof of actual violence inflicted upon his person, either endangering life or of a less serious character. But it is equally well settled that, while proof of these acts is admissible in support of the charge, bad temper alone is not ground for divorce, nor is mere drunkenness, or indolence, or thriftlessness, or wilfull neglect of household duties. 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 concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, this clause of the statute does not apply." See, also, Fay vs. Fay, 27 Sup., 328. The testimony of the libellant, which is in its material parts not corroborated and which is denied by the respondent, is to the effect that, at one time the respondent picked up a tea-pot to scald him, and he told her that, if she did, he "would put her out of business." It is not asserted that she did anything to him at this time. It was also claimed that she and a young man by the name of Walter Young came to the house, and also a lot of women, who, he said, were not of good character, and that they quarreled over the women being there. He says that she called him a son-of-a-bitch often, and said that she was the man of the house; that the same evening, she got a butcher knife and said she would cut his guts out, and her two boys interfered. He also testified that, in 1898, she threw a lamp at him and hit him on the side of the face and cut him; and in 1907, two men were in Philadelphia with her and a woman by the name of Ida Baer; that in 1894, she picked up a stove-lifter and threw it at him. All of these alleged acts were committed a very considerable time before the separation took place, and it is clear that none of them had anything to do with the separation. The respondent denies ever having used any violence towards the libellant. She explains the incident of being cut by the lamp as an accident which happened by reason of the chimney falling upon him. They seem to have been isolated acts, and such as have been held as not of themselves a cause for divorce. In Hexamer vs. Hexamer, 42 Sup., 226, it was said by the Superior Court: "Even had the libellant separated from his wife in 1902, immediately following the last act of physical violence, the evidence produced as to five widely separated and trivial violent acts during a period of eleven years would not have warranted a Court in granting a decree of divorce, under the provisions of the Act of 1895." A letter was also produced, addressed to him, containing language which certainly ought not to be used by any woman to her husband; but can it, of itself, be considered as cruel and barbarous treatment? It must be remembered that these parties have been separated for more than two years, and it would seem that the proof should be clear and preponderating, under such circumstances, to warrant a divorce upon this ground. No reasonable doubt arises but that she wrote the letter above referred to. It has no date, but it is directed from 820 North Broad Street, and must have been written between September 1, 1910, and the last of December of that year. According to the testimony of Mrs. Elizabeth Schofield, the daughter of the parties, after that time the libellant came down to Philadelphia, and her mother and father together rented the house No. 2210 Oxford Street, and he remained a week or two at the latter place and then came back to Lancaster. If this testimony is true (and it is supported by their son, Raymond D. Steiger, as well as by the respondent), the libellant lived with the respondent in Philadelphia after he received the letter. It has been held, by Sulzberger, P. J., in Gauntt vs. Gauntt, 16 Dist. Rep., 135, that such conduct on the part of the libellant is evidence of condonation. The learned judge there said: "This is very persuasive evidence that the wrongs he is said to have done her were forgiven and that she was willing to live with him while he behaved himself well. Since that day, he has committed no act of which she complains, and there is no evidence before us to impair the value of the libellant's act as evidence of condonation. We cannot, as the learned master seems to have done, wholly disregard so important an item of evidence." In the present case, one act is complained of which occurred after the libellant came back to Lancaster. The learned counsel for the libellant seems to be of the impression that, because he has presented facts upon which, if believed, a divorce might be granted, these facts must be taken as true and the Court must act solely upon them; and he seems to ignore entirely the evidence taken on the part of the respondent. The law requires him to prove his case by a preponderance of the evidence. After carefully examining all the evidence, we have come to the conclusion that he has failed to do this. His charges, as we have above said, rest upon his unsupported testimony, and this is denied by the respondent in whole and by his son and daughter in part. Under the circumstances, it can hardly be said that he has proved his case in the manner thus required. As was said by the master, this case should have been referred to a jury to determine the truth of the facts presented, and as that course was not pursued, we feel that we would not be warranted, under all the evidence before us, in entering a decree. The exceptions to the master's report are, therefore, overruled, the conclusions set forth in the master's report are adopted, and the libel is dismissed at the cost of the libellant. REILLY & RAUB vs. WIDMYER & KINARD. A joint owner of a party wall erected under an agreement made by the parties and standing half upon the land of each, may use the side of the wall resting upon his land for any purpose which does not impair its strength or interfere with its use as a party wall, and therefore will not be enjoined from painting a business sign on the open face of such wall on his side continued above the roof of his building. In the Court of Common Pleas of Lancaster County. Equity Docket No. 5, page 140. Bill for injunction. Motion to dissolve preliminary injunction. Wm. R. Brinton and Richard M. Reilly, for Plaintiff. March 20, 1913. Opinion by Landis, P. J. FINDINGS OF FACT. The facts out of which this controversy arises are practically undisputed. Richard M. Reilly and Harry L. Raub, on March 10, 1911, purchased from A. C. Kepler certain premises, situated on the west side of North Queen Street, between West King and West Orange Streets, in the city of Lancaster; and in the spring of 1911, they erected thereon a four-story brick business building, now known as Nos. 44 and 46 North Queen Street. Harry L. Raub died on June 3, 1911, leaving a last will and testament, and he therein directed, inter alia, that his interest in these premises should be sold by his executor. He appointed Amos K Raub, one of the defendants, to that office. The interest of the decedent in the property has not yet been disposed of. Charles F. Widmyer and John W. Kinard are the owners of certain property situated on said North Queen Street, adjoining the premises of the plaintiffs on the |