Opinion by Endlich, P. J., February 5, 1917.-This is a proceeding by a husband for divorce on the alleged ground of desertion by the wife. The Master has recommended the dismissal of the libel, and the libellant has excepted. The parties were married very young, in August, 1912. They never had a home of their own, but lived apart from each other with their respective parents. A child was born on February 2, 1913. The husband did almost nothing for the support of the wife and child. He testifies that he repeatedly asked his wife to go to housekeeping with him, but was definitely refused by her. Obviously his case depends, not only on the fact that he did make such overtures and that they were rejected, but that he acted in good faith in making his offers. He never had a home ready for her to go to. The evidence is exceedingly meager, consisting in all but one particular in the husband's uncorroborated testimony. The Master had the libellant before him and was in a better position than we are to judge of his credibility and of the sincerity of his proposals. If they did not commend themselves to the Master, the Court, in the light of the facts which are undisputed, cannot say that he was wrong. It is not necessary to hold that an offer or request to the wife to go to housekeeping must, in order to be treated as bona fide, invariably be accompanied with a showing that a house was ready for the wife's reception. But unless there are other persuasive circumstances, that factor's absence must obviously be of great significance. In Bauder's App., 115 Pa. 480, 487, the fact that the husband had leased a house is emphasized as evincing the good faith of his offer to his wife; whilst in McBrien vs. McBrien, 63 Pa. Super. Ct. 576, 579, the fact that he had no house to take his wife to is mentioned as tending the other way. There seems to be nothing in the evidence here to make up for this deficiency in the libellant's case, and on the whole we do not feel warranted in differing with the conclusions of the Master, whose report, indeed, sufficiently vindicates them.

The exceptions are overruled and the libel is dismissed at the costs of the libellant.

KEIM vs. RABOLD.

Negligence-Loss of Horse-Evidence of Value-Cost-New Trial. In the trial of an action to recover the value of a horse killed by defendant's negligence, the plaintiff testified that in his opinion the horse was worth $190 to $200. The Court refused to allow the defendant on cross-examination to ask what the plaintiff had paid for the horse a year before the accident. Held, error, and rule for new trial made absolute.

trial.

In the Court of Common Pleas of Berks County.

No. 113 August Term, 1916.

Verdict for plaintiff for $110. Rule by defendant for new

William Kerper Stevens for defendant and rule.

Ira P. Rothermel and H. P. Keiser for plaintiff.

Opinion by Wagner, J., February 5, 1917.-Plaintiff brought suit against the defendant for damages which he claimed he sustained through the negligence of the defendant in running his automobile into plaintiff's horse, thereby so injuring it that it had to be killed. The jury found a verdict in favor of the plaintiff.

The only reason necessary to be considered in defendant's application for a new trial is that relative to the refusal of the Court to allow defendant's counsel to cross-examine plaintiff as to what price he had paid for the horse when he purchased it one year prior to the accident.

Plaintiff had testified that in his opinion the value of the horse was $190 to $200. Defendant, thereupon, on crossexamination, had a right to ask what price had been paid by him for this horse one year prior thereto. In refusing to permit this question there was error: Rea vs. Pittsburgh,

229 Pa. 106.

Rule for new trial made absolute.

COMMONWEALTH vs. KNECHT.

Husband and Wife-Marriage Evidence-Support of Wife and Child. Where a woman, after having illicit intercourse with a man for a period of three years, at his proposal agreed to be married without any marriage ceremony, and live together as man and wife, which they did for about eight years, and a child is born to them and baptized as their child, and the woman is addressed and held out continuously to his relatives and others as his wife, the court will find that the parties are husband and wife and order the husband to support the wife and child, even though the man denies the marriage agreement and seeks to disprove the marriage by producing papers signed by the woman negativing the relation which, however, were signed by her under his compulsion.

In the Court of Quarter Sessions of Berks County.

No. 23 June Sessions, 1916.

Sur Charge-Non-support.

Earle I. Koch and W. B. Bechtel for defendant.

Paul N. Schaeffer, assistant district attorney, for Commonwealth.

Opinion by Wagner, J., February 5, 1917.—This is a proceeding brought under the Act of April 13, 1867, P. L. 1878, by S. Kathryn Knecht, as the wife of the defendant, for the support of herself and child. The first hearing was held on April 22, 1916, at which time, after the evidence of the prosecutrix and several of her witnesses, and also the testimony of the defendant had been submitted and considered, we made an order of support for $5.00 per week for wife (prosecutrix) and child. This order was necessarily based upon the finding from the evidence as then produced, that the prosecutrix was the wife of the defendant. As defendant strongly contended that he had never married her we, after the prosecutrix had given her evidence, had the testimony of the other witnesses taken down by the court stenographer. We, however, gave an opportunity for further testimony at subsequent hearings, so that we could more carefully consider this evidence and other evidence to be submitted by both parties in all its details, for the purpose of determining whether error had been made in the finding that the prosecutrix was the wife of the defendant and in the consequent order made.

At the subsequent hearings the testimony of the prosecutrix was also taken and transcribed, together with that of additional witnesses on the part of the prosecutrix and of the defendant. At the hearing on June 24, 1916, upon evidence as to the property owned by the defendant, we increased the order to $7.00 per week.

From the evidence in this case we find that the prosecutrix and the defendant first became acquainted sometime in 1905. From that time on until on or about August 14, 1908, they lived separate and apart from each other, the defendant frequently calling upon the prosecutrix at her boarding place as her gentleman friend. From about one month after this first acquaintance until about August 14, 1908, upon visits by the defendant to the prosecutrix, illicit relations existed between them. On or about August 14, 1908, whilst prosecutrix was boarding with a Mrs. Sterner, at 130 Elm street, Reading, Pa., defendant came to her residence and asked her if she would go along to Philadelphia to marry him. She replied that she would. Thereupon on that day they went to Philadelphia for the purpose of carrying out this agreement to be married. During their stay at Philadelphia she was waiting for him to take her to the minister, as he had said he would do. Whilst in Philadelphia he took prosecutrix to the residence of his sister, Mrs. Mary J. Rorer. Mrs. Rorer testifies that they told her that they were married. That thereupon she wished her brother luck, and expressed the hope that they would get along all right. During this

trip to Philadelphia the marriage ceremony was not performed. On the way home, however, they agreed to be married and live together. He said, "We were married just the same as if we were married by all the ministers; we were made by God and not by the people." He also said, "We would live together as man and wife and be man and wife." She agreed to this, and so did he. From this time on their relations changed. Shortly after this defendant went to Ashland to work. Whilst there he frequently wrote to her, always addressing her when he wrote to her on this and also on other occasions when absent from Reading, as Mrs. Elmer R. Knecht. Upon his return from Ashland he went to live with her as man and wife at the boarding place of Mrs. Sterner, 130 Elm street, where they lived for a short time. Afterwards they moved to the boarding place of Mrs. Fessler, 140 North 10th street, where they lived together as man and wife for about three years. Mrs. Fessler testified that they came together to her place and asked her for Foard. She asked him if they were married and he said yes. They occupied the same room during a period of two years and ten months. During that time that they lived there they were known as man and wife by the other occupants of the house.

From this place they went to board at 915 North 9th street, where they stayed but a few months, Mr. Knecht shortly after this time going to Milwaukee to work. He went there about March, 1912. During this absence he frequently wrote to the prosecutrix, and upon every occasion addressed her as Mrs. Elmer R. Knecht. Upon his return to Reading he again took up his abode with her, this time at 33 Cedar street, where they lived for almost two years. They took their meals at 39 Cedar street. Mrs. J. R. Sonon, who kept the house at 33 Cedar street, testified that they lived at her place, and took their meals at her mother's. They occupied the same room during this time; that prosecutrix was known as Mrs. Kathryn Knecht; that whenever defendant came in he would say, "Where is my wife, Kathryn?" At other times he would ask for her under the name of Mrs. Knecht. All the mail that came to her place was addressed to her as Mrs. Knecht. Afterwards they lived at 29 South 10th street. They there lived together as man and wife until defendant refused to support her and the child on or about the third day of April, 1916. Mrs. Carrie Hell testified that defendant came to her place at 29 South 10th street and asked for room and board for him and his wife; that whilst there he always spoke of the prosecutrix as his wife. During this time a child was born to them. They were there for a period of two years, except the two

weeks during the time prosecutrix was at the hospital where the child was born. After the child was about a year old he asked Mrs. Hell to put prosecutrix out, saying that he would not pay her board any more. Mrs. Hell stated that she

had between 50 and 59 boarders at one time at this place. Among the boarders they were known as Mr. and Mrs. Knecht; that she was so called in defendant's presence; that the mail that was addressed to her was in the name of Mrs. Kathryn Knecht.

Rev. J. F. Moyer, D. D., pastor of the First Reformed Church, Reading, of which church defendant was a member, testified that he baptized their child; that the baptism took place in the church, at which time both the prosecutrix and defendant stood together at the altar, the mother holding the child whilst the ceremony of baptism was being performed. Afterwards he gave them a certificate of baptism, wherein was contained the name of the husband, the name of the wife, the name of the child, and the date of baptism. On April 2, 1915, Mrs. Knecht, at the instance of her husband, became a member of the church under the name of Mrs. Kathryn Knecht. The defendant himself testified that after his wife joined the First Reformed Church they, together with the child, sat together during church service in the same pew; that at communion time he would hold the child until the prosecutrix went to the altar to commune, and then afterwards she held the child as he would go up to commune. His testimony is:

"Q. You were sitting together in the same pew in church? A. That we were.

"Q. The same as man and wife and children sitting together? A. Yes, sir, the same as any one who would go to church together.

"Q. The same as a family sits together in church? A. We were sitting there together, yes, sir."

A great deal of other testimony of the same import as that just reviewed was submitted.

The defendant denied the agreement of marriage that prosecutrix claimed had been entered into on or about August 14, 1908. To disprove marriage he offered, in addition to other evidence, two papers signed by her. She claimed that she signed these under compulsion from him whilst they were quarreling. One of these papers, Exhibit "B," was drawn up in typewritten form and then signed by her. The contents of this paper clearly indicate that it is a paper that would not be voluntarily signed by a wife, but only such as might be signed by a wife influenced by fear of her husband.

We have given the entire testimony that has been submitted in this case most careful and serious consideration.