six per cent. from the time of payment. This answer also disposes of the tenth question. If plaintiff were seeking judgment for want of a sufficient affidavit of defense, his failure specifically to aver the time of payment and rate of interest might operate against him, but these deficiencies may be supplied by amendment or proof or both: Byrne v. Hayden, 124 Pa. 170. The seventh reason suggests that the statement does not allege what sum was paid for the mortgage; but this is untenable, for in the sixth paragraph of the statement it is alleged that plaintiff "was obliged to pay and did pay the whole debt, principal and interest secured by the said mortgage. The eighth reason suggests that, because the mortgage was collateral security to the accompanying bond, recovery is dependent upon whether or not the bond was a valid subsisting indebtedness of Ignatz and that plaintiff cannot recover unless he avers and proves that the bond was still unpaid and valid. This argument loses sight of the fact that plaintiff is seeking to recover on a covenant against incumbrances, that the bond was not an incumbrance but the mortgage was, and that the mortgage was an incumbrance whether there was anything due upon the bond or not. That is to say, that an open, unsatisfied mortgage is an incumbrance against land, even though the debt which it evidences or secures has been actually or presumptively paid: Hausman v. Johnson, 32 Pa. Super. Ct., 339. It is clear, therefore, that plaintiff is not obliged to plead that the bond was a valid obligation. Cf. Funk v. Voneida, supra.

Defendant's ninth question must be sustained. The deed was executed by Ida M. Geist and Frank M. Geist, her husband. The suit is instituted against Ida M. Geist alone. Plaintiff would justify his suit against defendant alone upon the ground that she was the holder of the title and that her husband, having joined merely to release his estate of courtesy, did not become bound by the covenants. This notion, however, finds no support in any Pennsylvania authority. It is apparent that the language of the covenants import joint obligations and we cannot look beyond the language of the instrument. This is the doctrine of Philadelphia v. Reeves, 48 Pa., 472, where it is said:

"It is a general presumption of law when two or

more persons undertake an obligation that they undertake jointly. Words of severance are necessary to overcome this primary presumption. In all written contracts therefore whether the liability incurred is joint or several or joint and several is to be determined by looking at the words of the instrument and at them alone. The subject matter of the contract and the interests of the parties assuming a liability have nothing to do with the question."

This view has been confirmed by a number of succeeding cases among which may be cited: Mintz v. Natural Gas Company, 259 Pa. 477; Pittsley v. King, 206 Pa. 193; Hascsak v. Leseinsky, 39 Pa. Superior Court, 642. The action, therefore, is wrongly brought unless something has occurred since the obligation was created which makes it unnecessary for plaintiff to join both covenantors in the suit but, of course, such occurrence should be pleaded. We are informed by plaintiff's brief that Frank M. Geist is dead and it may well be that the death of one of the covenantors makes it possible to pursue alone the survivor of them. Cf. Chambers v. Reinhold, 33 Pa. Superior Court, 266. If so that fact should have been alleged. Accordingly, while sustaining defend's question, we shall afford plaintiff opportunity to amend his statement.

The final objection is that the statement of claim is not signed by plaintiff and not verified by a proper of ficial. However, the Practice Act of 1915 does not require that the statement of claim be signed by plaintiff. Section nine provides that "it shall be sworn to by the plaintiff or some person having knowledge of the facts and if there be an attorney shall be signed by such attorney." The statement of claim is signed by attorneys for plaintiff and the jurat is signed by the plaintiff, the oath having been administered by Charles R. Carson, who, upon the seal attached to the paper, describes himself as "Commissioner of Deeds of the State of New Jersey. There is no certificate showing that Carson is a commissioner of deeds or that commissioners of deeds have anthority to administer affidavits. The laws of Pennsylvania provide for the appointment of persons residing in other states to take acknowledgments of deeds and administer oaths but there is no provision for the appoint

ment of such commissioners resident in Pennsylvania: Act of April 14, 1828; (P. L. 447; Section 1.) The courts in Pennsylvania will, of course, take judicial notice of official acts of officers appointed under the laws of Pennsylvania: Brown v. Philadelphia Bank, 6 S. & R., 483. Certainly, Carson is not a Pennsylvania commissioner of deeds. He holds his commission under the laws of New Jersey. But we cannot take judicial notice of the authority of officers of other states, particularly when the officer is one unknown to the laws of this state. It would be entirely proper for us to assume that a Notary Public appointed by proper authorities in New Jersey had the same authority as notaries appointed under the laws of Pennsylvania: Stroheim v. Pack, 10 Dist. Rep. 668; but, we cannot assume that a commissioner of deeds appointed by the state of New Jersey has authority to take affidavits. The plaintiff, therefore, should have attached to his statement a certificate of a proper officer of New Jersey that a commissioner of deeds has such power. We will frame our order so that plaintiff may have opportunity to correct this defect. We might state that this is an objection to the form of the statement and, therefore, should have been raised upon a motion to strike off the statement and not by a statutory demurrer. However, following our custom, we have given it the attention which it deserves.

Now, July 18, 1922, this cause came on to be heard upon affidavit of defense raising questions of law for the decision of the court and upon consideration thereof it is ordered and adjudged that the first, second, third, fourth, fifth, sixth, seventh, eighth, tenth and eleventh Questions of law raised by the said affidavit of defense be and the same are hereby overruled; that the ninth and twelfth questions be and the same are hereby sustained: and that the plaintiff's statement of claim is not sufficient in law to sustain this action; and it is further ordered that unless an amendment thereof be offered after notice to defendant's counsel and allowed by the court within fifteen days from date that judgment be entered by the Prothonotary in favor of the defendant and against the plaintiff for costs.

MERWINE v. ABELES.

Equity Jurisdiction—Certificate to Law Court-Act of June 7, 1907, P. L. 440.

A bill in equity will not lie, where complainant alleges that respondent has threatened to cut water pipes leading out of a reservoir into the premises of complainant, thus depriving him of the use of the reservoir and the water therein; and where the whole controversy turns upon the construction of a deed. That is a legal question and should be determined in a court of law.

Under act of June 7, 1907, P. L. 440, cause certified to the law side of the court.

In the Court of Common Pleas of Monroe County. Sitting in Equity. No. 36 September term, 1920. Marshall Merwine v. Emanuel J. Abeles. Bill in Equity. Cortified to Law Side of Court.

Claude C. Shull, for Plaintiff.

Wilton A. Erdman, for Defendants.

Groman, P. J., 31st Jud. Dist., specially presiding. We gather from the pleadings that the quest on of jurisdiction must first be determined. The bill of complaint, inter alia, discloses the following facts: Complanant is the owner of a boarding house in Stroud Township, Monroe County, Pennsylvania; he secured title to the premises from Joseph F. Foulke and wife, by deed bearing date May 12, 1905, duly entered of record.

When complainant acquired title to the premises, it is alleged, he also acquired the rght to use the water in a reservoir located on other premises owned by the origina! grantor, but now owned by respondent; that respondent has threatened to cut the water pipes leading out of said reservoir unto the premises of complainant, and deprive complainant of the use of said reservoir and the waters therein, Complainant alleges his right to use the water from said reservoir depends upon the construction to be placed upon the language used in the description, habendum and covenants of the deed of conveyance. Respondent denies the reservoir was erected on land adjacent to the complainant, or was appurtenant thereto. It thus seems we are asked to construe the language in a deed to ascertain the rights, if any, acquired by the complainant. Is a court of equity the proper forum for the determination of the question raised? In

Booher et al., v. Browning et al., 169 Pa. St., page 23 (1895), wherein complainant sought to compel the removal of a narrow guage railroad, the respondent denying the trespass, and where the right to restrain depended upon the construction to be placed upon the languag used in a deed granting a right of way, the Supreme Court, in affirming the dismissal of the bill of complaint by the lower court, used the following language: "The bill seeks to establish a legal right. Whether the terms of the grant have been exceeded depends upon the construction of the deed from the plaintiff's predecessors in title to the defendants. This is a purely legal question, and one upon which the whole case rests. Whether the trespass complained of has been committed depends upon the legal rights of the parties. These rights should be determined at law. When so determined an equity based upon them may if necessary be asserted, and adequate protection in their enjoyment be secured. It is said in the opinion in Grubb's Appeal, 90 Pa. 228, that a bill in equity was never intended, nor has it ever been used, to settle disputed rights in trespass. When the right is clear it will restrain the commission of repeated acts of trespass on the sole ground of preventng a multiplicity of suits."

In Duncan v. Iron Works, 138 Pa. St., page 487, the Supreme Court used the following language: "The familiar principle recognized in the cases cited by the learned master and court below is, that, where the case hinges upon a disputed legal title, that title must be first settled in an action at law. As was said in North Penna. Coal Co. v. Snowden, 42 Pa. 488: The right of the plaintiff must be acknowledged, or established at law, before he can resort to a chancellor.' In Grubb's App., 90 Pa. 228, the right of a party to take ore from the land of another was disputed, and depended on the construction of a deed, etc. The bill for an account was dismissed, on the ground that the question was a legal one, properly belonging to a court of law. Again, in Furgeson's App., 117 Pa. 426, the principle is thus stated by the present Chief Justice: Where rights which are legal are asserted on one side and denied on the other, the remedies are at law. They cannot be settled under equity forms."

We conclude that a court of equity has no jurisdic