ough in pursuance of the ordinance and election so held are invalid, illegal and void.

Answer: Denied.

(b) By Defendant.

1. That the ordinance for the increase of indebtedness is in due form of law and valid.

Answer: Affirmed and adopted.

2. That the election held upon the increase of indebtedness of the borough, and the return thereof to the Court of Quarter Sessions, is in due form of law and valid.

Answer: Affirmed with the qualification that although there was not a proper return made and filed, the informality of the return does not invalidate the election.

3. That said bonds may be lawfully issued for the purpose for which they are authorized, upon the Clerk of the Court of Quarter Sessions first issuing his proper certificate, and the same duly recorded upon the minutes of the borough, and the borough council first levying and assessing an annual tax sufficient for the payment of the interest and principal of the bonds within thirty (30) years, as provided by law.

Answer: Affirmed and adopted.

4. That the Plaintiff's Bill be and is hereby dismissed at the costs of the Plaintiffs.

Answer: Affirmed and adopted.

VI.

DECREE NISI.

And now, May 17, 1922, this cause came on to be heard at this term, and upon consideration thereof, it is ordered, adjudged and decreed that the relief prayed for in the bill of complaint be denied and that the bill of complaint be dismissed at the cost of the plaintiffs

The Prothonotary is directed to enter this decree nisi and give notice of same to the parties or their counsel, and if no exceptions are filed thereto within ten days after date of notice, this decree shall be entered by him as a final decree.

LEE v. THE AUSTIN CO.

Practice, C. P.-Judgments-Opening-Mistake of Counsel A proceeding to open a judgment is an appeal to the equity powers of the court.

A defendant having a valid defense should not be deprived of the right to defend through the mistake or oversight of his counsel, and especially where application is promptly made to open the judgment.

Where counsel for defendant overlooked the fact that judgment, under the act of May 14, 1915, P. L. 483. Sec. 12, as amended by the Act of May 3, 1917, P. L. 149, could be entered, for want of an affidavit of defense, before the return day, upon proper service of the writ and plaintiff's statement, judgment will be opened.

In the Court of Common Pleas of Lehigh County. No. 22 June Term, 1920. R. E. Lee and A. F. Schey, copartners trading as R. E. Lee and Company, v. The Austin Company. Assumpsit. Rule to open judgment. Rule absolute.

Dewalt & Heydt, for Plaintiffs.

Thomas F. Diefenderfer, For Defendant.

Groman, P. J. June 1, 1922. The proceeding before us is brought for the purpose of opening the judgment entered for want of an affidavit of defense, to allow defendant to make a defense.

The reasons urged are that counsel for defendant over-looked the fact that judgment may now be entered, upon proper service of the writ, for want of a sufficient affidavit of defense, before the return day, and that defendant had a valid defense.

A proceeding to open a judgment is an appeal to the equity powers of the court, the judge exercises the functions of a chancellor, and is vested with a discretion to pass upon the weight of the evidence, and the credibility of the witnesses; and to dispose of the question presented upon equitable principles: Ilyus v Buch, 34 Pa. Sup. Ct., page 43; Schroyer v. Smeltzer, 38 Pa. Sup. Ct., page 400, Kair Co. v. O'Brien, 202 Pa. St., page 153. A defendant having a valid defense should not be deprived of the right to defend through the mistake or oversight of his counsel, and especially where application is promptly made to open the judgment: Fuel City Mfg. Co. v. Waynesburg Products Corporation, 268 Pa. St., page 441, where the court held that "relief will be granted from

a judgment entered by default, as a result of the mistake or oversight of counsel, where application is promptly made, a reasonable explanation or excuse for the default offered, and a defense shown upon the merits."

The effect of the oversignt or neglect of couns] should not be visited upon the defendant, and where, as in the matter before us, a defense is shown upon the merits.

Now June 1, 1922, rule to open judgment and allow defendant to enter a defense, made absolute. The defendant is allowed twenty days from this date to file an affidavit of defense.

NEUFFER v. BROWN, ET AL.

Practice, C. P.-Affidavit of Defense-Sufficiency.

Where they are not specifically denied, the facts alleged in the statement of claim are admitted.

Judgment was entered for want of a sufficient affidavit of defense, where defendant neither admits nor denies the allegations of plaintiff, and demands proof thereof "if material to the issue"; and where defendant avers that, in his contract with plaintiff, he was an agent for another, but fails to aver that plaintiff had notice of such agency, it not being disclosed by the written agreement attached to the statement of claim; and where a discrepancy in the names of corporations are not explained.

In the Court of Common Pleas of Lehigh County No. 128 January term, 1922. Ludwig C. Neuffer v. H. F. Brown, E. R. Haas and A. S. Guyer. Assumpsit. Rule to how cause why judgment should not be entered for want of a sufficient affidavit of defense. Rule absolute.

Thomas F. Diefenderfer, for Plaintiff.

Ira T. Erdman, for H. F. Brown, Defendant.

Groman, P. J., July 1, 1922. The defendants, on or about August 20th, 1920, sold to plaintiff four hundred shares of the capital stock of the "Smith Burner and Oil Company, Inc.," paying the sum of five thousand dollars. The defendants, at the same time, entered into a written agreement with plaintiff, as follows: "Bethlehem, Pa., Aug. 20, 1920. We the undersigned hereby agree that in the event the purchaser of the four hundred shares of

stock as subscribed for by Mr. Ludwig C. Neuffer on the reverse side of this agreement wishes to withdrew from the said company in a yearfrom the above date, the said full amount with six per cent. interest shall be returned, it is further agreed that the said Mr. Ludwig C. Neuffer shall be elected to the Board of Directors of said company. (Signed) H. F. Brown, E. R. Haas, A. S. Guyer."

Plaintiff notified defendants within the year specified of his wish to withdraw from the company, and demanded repayment of the money upon assignment by plaintiff to defendants of the certificate of stock; said notice was received by defendants The summons in this proceeding was served by the Sheriff of Lehigh County on H. F. Brown and E. R. Haas; a return of Nihil Habet as to A. S. Guyer. H. F. Brown, one of the defendants, filed an affidavit of defense in which said defendant admits the allegations contained in the first paragraph of plaintiff's statement of claim. As to the second and third paragraphs, said defendant does not deny the allegations contained therein; admits the allegations contained in the fourth paragraph. As to the fifth, the said defendant neither admits nor denies, and demands proof thereof "if material to the issue." As to the sixth paragraph, said defendant denies there is due and owing the plaintiff the sum of five thousand dollars or any other sum. In pararaph seven, said defendant denies all liability, and avers that he acted as the agent of the "Smith Burner Oil Company, Inc.," and received no part of the five thousand dollars. The matter is now before us on rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense to the whole of plaintiff's claim.

Paragraph five of the affidavit of defense, wherein said defendant neither admits nor denies the allegations set forth in paragraph five of plaintiff's statement of claim, and asks proof thereof "if material to the issue,' falls within the rule that where facts are not specifically denied, facts alleged in the statement of claim are admitted: Willock v. Hamilton, 51 Pa Sup. Ct., page 1. Further citations might be made, but as no briefs were submitted, we will pass the matter by. The affidavit of defense sets forth that the defendant Brown was an agent or representative of the "Smith Burner Oil Company,

Inc.," this is a statement of fact, and appears to be the defense relied upon; but in the affidavit of defense it is not alleged that such agency was brought home to the notice of the plaintiff, nor is such agency disclosed by the written agreement attached to the statement of cause of action; nor is it alleged that the "Smith Burner and Oil Company, Inc." and the "Smith Burner Oil Company, Inc." were one and the same company. The affidavit of defense in almost every particular fails to meet the requirements of the act, and the construction placed thereon by the courts. The rule must, therefore, be made absolute.

Now July 1, 1922, rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense made absolute.

FARBER v. FARBER.

Husband and Wife-Divorce-Personal Indignities.

but

A single act of indignity is not sufficient cause for divorce, where there are several acts of indignity, coupled with a course of conduct and treatment rendering the condition of a libellant of ordinary sensibility and delicacy of feeling intolerable and life burdensome, a divorce will be granted.

Recital of facts sufficient to sustain a divorce on such a ground.

In the Court of Common Pleas of Lehigh County. No. 131 June Term, 1921. Lucetta E. Farber v. Alvin O. Farber. Divorce. Exceptions to master's report. Exceptions dismissed.

Richard W. Iobst, for Libellant.

Thomas F. Diefenderfer, for Respondent.

Groman, P. J., July 1, 1922. The libel sets forth two grounds for divorce, first, cruel and barbarous treatment, endangering the life of libellant; and second, offering such indignities to the person of the libellant, rendering her condition intolerable and life burdensome, thereby forcing her to withdraw from home and family of respondent.

The testimony in the above proceeding in divorce dis