the same offense. He could not have been sentenced on each count. They did not charge separate offenses. They were only convenient divisions of the false testimony which the defendant was charged to have given under the one oath which was administered to him. A general sentence was imposed, as but one crime was committed. This sentence was supported by the verdict of guilty on the fourth and sixth counts and were we to hold that he was not properly convicted on the sixth count, it would not affect in any manner the sentence, as the fourth count would still remain to support it: Johnston vs. Com., 85 Pa., 54." If the defendant had desired any additional or fuller instructions as to the second count, he should have presented a point. In Commonwealth vs. Zappe et al., 153 Pa. St., 498, it was held: "If the trial judge fails to charge upon some point which counsel regard as essential, the judge's attention should be called to it before the jury leave the bar, in order that he may correct any omission." In Commonwealth vs. Boschino, 176 Pa. St., 103, it was held: "The court cannot be convicted of error in not giving instructions that were not requested by the party." See also Commonwealth vs. Merrison, 193 Pa. St., 613; Cooper vs. Altoona C. C. & S. Co., 53 Pa. Super Ct., 141; and Thompson vs. Lumber Co., 55 Pa. Super. Ct., 302. As a matter of fact, upon a motion in arrest of judgment, the court is confined to the record. If the record shows that the verdict was right as to the first count, it is sufficient. See Hazen et al. vs. Commonwealth, 23 Pa. St., 355; Commonwealth vs. Barge, 11 Pa. Super. Ct., 164. A careful consideration of the legal questions involved and of the evidence has entirely satisfied us that the verdict in this case is correct.

And now, March 6, 1916, motion of defendant in arrest of judgment is denied. Judgment is entered on the record, and defendant is directed to present himself forthwith for sentence.

LOWELL vs. LOWELL.

Divorce-Cruel and Barbarous Treatment-IndignitiesBurden of Proof.

The burden is upon the libellant to establish the fact of cruel and barbarous treatment, or the indignities to his person, which render his condition intolerable and life burdensome. If his testimony is not corroborated but is denied by the respondent a divorce will be refused.

In the Court of Common Pleas of Delaware County. Exceptions to master's report in No. 66, December Term, 1914.

A. B. Geary, for Exceptions.
F. S. Morris, Contra.

Mar. 31, 1914, Broomall, J.: The libel in this case as now presented to the court, is based upon the Act of June 25, 1905, P. L. 308, Stewart's Purdon, Vol. 1, page 1235, pl. 111. The charge of desertion has been abandoned. The act prescribes, "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," a divorce may be decreed.

The burden is upon the libellant to establish the fact of cruel and barbarous treatment, or the indignities to his person which render his condition intolerable or life burdensome. These are strong expressions and exclude all cases of mere marital friction, facetiously characterized as the "moaning of the tide." While it may be that the acts of the respondent to which the libellant testifies might bring the case within the purview of the act, the difficulty with his case is that they are categorically denied by the respondent, and he has not furnished even a scintilla of corroboration. Her evidence appears by its substance to be candid and credible, and she expresses a willingness to resume marital relations. He deserted her, and does not now contend that he had sufficient cause to do so. The case appears to be one in which a husband is merely moved by a desire to be relieved of his marital undertaking. In this the law cannot avail him.

The exceptions to the master's report are therefore sustained and a decree is refused.

ESTATE OF MICHAEL ULIHANICS.

Rule to Administer-Consular-Agent-Estates of Aliens.

In Pennsylvania the assets of decedents' estates constitute a trust fund for payment of their debts and the right to administer is controlled by the State laws.

There is no authority to commit administration into the hands of a Consular Agent for the foreign government of which the decedent was a subject at the time of his death.

In the Orphans' Court of Schuylkill County. Petition to revoke letters.

William Wilhelm, for Petition.
B. J. Duffy, Contra.

Wilhelm, P. J., February 7, 1916. This is the application of Paul Bukva to revoke letters of administration granted by the Register to Andrew J. Shigo upon the Estate of Michael Ülihanics, and to order that letters of administration in said estate be granted to the petitioner or his designated representative.

It appears that the petitioner is the Acting AustroHungarian Consular Agent for the Northeastern District of Pennsylvania, which includes Schuylkill County.

The record shows that George Ulihanics, a brother of the decedent, Michael Ulihanics, late of this county, renounced his right to administer on the Estate of Michael Ulihanics and requested the register to appoint Andrew J. Shigo, administrator on said estate. In pursuance of this request, the register did appoint Andrew J. Shigo, who has entered upon the duties of his office of administrator. Therefore, the appointment of the administrator was regular and legal, it being in conformity with the laws of this State.

The petitioner contends that his right to administer said estate arises by reason of a treaty between the United States and Austria-Hungary, dated June 29, 1871, which provides in Article Fifteen as follows: "ConsulsGeneral, Consuls, Vice-Consuls and Consular-Agents, also Consular Pupils, Chancellors and Consular-Officers shall enjoy in the two countries all the liberties, prerogatives, immunities and privileges granted to the functionaries of the same class of the most favored nation."

It is asserted that under the most favored nation

clause of said Article Fifteen the representative of the Austro-Hungarian Government has exclusive right to administer upon the estates of his deceased nationals, because the most favored nation clause in said treaty has extended to the Austro-Hungarian Government all the rights, powers and duties accrued to any other nation under any other treaty to which this government was one of the contracting parties.

In support of this contention, the petitioner has called attention to the treaty entered into between the United States and the Argentine Republic in the year 1853, Article IX of which is as follows: "If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the Consul-General or Consul of the nation to which the deceased belonged, or the representatives of such ConsulGeneral or Consul, in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the county, for the benefit of the creditors and legal heirs."

It is unnecessary to here note the discussion contained in the various decisions of the several courts upon this question, because the United States Supreme Court in Rocca vs. Thompson, 223 United States Reports 317, has set at rest all doubts heretofore existing by deciding that under the Argentine Treaty of 1853 a consul has not the right to the exclusive administration of the estate of his deceased national to the exclusion of one authorized by local law to administer the estate.

The petitioner also relies upon the treaty between the United States and Paraguay entered into in the year 1859, Article X of which is as follows: "In any event of any citizen of either of the two contracting parties dying without will or testament in the territory of the other contracting party, the Consul-General, Consul, or ViceConsul, shall, so far as the laws of each country will permit, take charge of the property which the deceased may have left, for the benefit of his lawful heirs and creditors, until an executor or administrator be named by the said Consul-General, Consul, or Vice-Consul, or his representative.

In the Rocca vs. Thompson case, Mr. Justice Day

does not appear to discuss the treaty with Paraguay, but this treaty was cited in the brief by counsel for the plaintiff in error, and it is proper to presume that the court considered the Paraguay Treaty, and determined that this treaty did not give to the Consuls of Paraguay the exclusive right to administer as here claimed.

In 1894, it was the view of the Department of State, as expressed by Mr. Uhl, Acting Secretary of State, that the administration of estates in the United States was under the control of the respective States, and that the international agreement proposed by the then Italian Ambassador, that Italian Consuls in the United States be authorized as were the American Consuls in Italy to settle the estates of deceased countrymen should not be made. Moore's International Law Digest, Vol. 5, Page 122. Mr. Hay, Secretary of State, held in the year 1900, that the right of United States Consular Officers to intervene by the way of observing proceedings in relation to the property of deceased Americans, leaving no representatives in foreign countries, is not understood to involve any interference with the functions of a public administrator. Moore's International Law Digest, Vol. 5, Page 123.

It has never been decided by the Federal Courts that it is within the treaty making power of the national government to provide by treaty with foreign nations for administration of property of foreigners dying within a state, and to commit such administration to Consuls of the nation to which the deceased owed allegiance. Naturally State Courts will not willingly recognize a claim so repugnant to the general policy of our law, until it clearly appears that the Federal Courts have decided that the two powers which were parties to the treaty so intended, also that the Federal Government had authorized to confer such extraordinary rights on Consular Officers.

It was said in Rocca vs. Thompson, supra, in this country the right to administer property left by a foreigner within the jurisdiction of a State is primarily committed to State law, and in this decision Mr. Justice Day seemed to doubt whether it is within the treaty making power of the national government to provide by treaty with foreign nations for the administration of