father said if she left he and her mother would break up and board. This fixes the letter as having been written in 1865, subsequent to the conversation detailed in his letter of October 6. The rest of this long letter is full of consideration of her duty to her aged parents, and seems to concede that her prior duty is to them; but its unhappy tone would bring a true woman to her husband if she loved him at all. Upon October 19, he writes that he has told his servant that he will keep house no longer with her. He also says that he will not give a person who wishes his house a decided answer, for in his own words, "I would like to know if you are still of the opinion that you would be willing to come and give it a trial of being alone in the house during the day before you bring all your goods." The next we know is that they are living together at the house mentioned in the letter of October 6. Mrs. Forker's testimony clearly established that they were so living in 1866. The evidence of several witnesses also establish the fact that Mr. Peterson always spoke of the petitioner as his wife, and that this continued up to his death. They separated in 1867, and met but once afterward. On November 4, 1865, he made a deed in which she joined as his wife. The conduct of Mr. Peterson is entirely inexplicable. Twice when he and his wife seemed to have reconciled their difficulties and were upon the point of reuniting, he prevents a reunion by referring to her duty to remain with her parents. (Vide her letters of February 24, 1864, and November 31, 1864.) Again her duty to her parents is put in a strong light just before the final reunion. There is nothing in the correspondence to show that he was not acting in good faith. His anxiety for their welfare seems entirely sincere. He obtained, however, a divorce, and must have known it; he certainly remembered it, since after the final separation he passed titles without her joining. Before the divorce, whilst they were separated, he had her to join in his deeds. We hardly think that he intended to perpetrate the great outrage that was done to his wife. We think it the result of mental rather than moral obliquity. Can this decree be vacated? The case is clear of certain elements which have embarrassed the consideration of others. Here there was no subsequent marriage, and the offer of the petitioner, made in open court, to release her interest in all properties conveyed by her husband without her joining relieves it of all solicitude for purchasers, whether for value or not. The case of Smith vs. Smith, 3 Phila. 489, also reported as Boyd's Appeal, 2 Wright, 241, is authority here. The ground of divorce there was desertion. The depositions taken on behalf of the petitioner showed, as they do here, that there was no wilful and n alicious desertion. Here, in addition, we have the resumption of the marital relation. It was argued here that in that case the year for an appeal had not elapsed, but that does not appear to have been considered material by the Supreme Court in that case, nor in the earlier case of Allen vs. McClellan, 2 Jones, 328. Ordinarily control of a judgment expires with the current term, but this rule does not hold where a judgment has been obtained surreptitiously or fraudulently. Nor does there seem to be any reason why it should where there is no one interested except the parties to it and their heirs. Is there anything to conclude her? Ordinarily knowledge, notice of any kind, ought to conclude parties after decree. But even if it is granted that she had actual knowledge, we think there was enough in this case to convince her that the proceedings had been abandoned. From his letters we find he made her several visits in 1865, and at least two other visits in that year are established by oral testimony. Both before and after the divorce his visits were those of a man to his wife. How complete their reconciliation was at this time, before the divorce, is shown that soon afterwards she left her parents to go to him, notwithstanding his recognition of their great need of her, and his almost persuasion of her to remain with them. What else could she think but that all their difficulties were at an end? There is no evidence or pretence that she knew more of the divorce than is contained in the correspondence. In the light of his intercourse with her, his frequent visits, their reunion and living together as man and wife, we must say that we believe that he led her to believe that the divorce suit, if she ever knew of it, had been utterly abandoned, and that the decree obtained was a fraud upon her. Upon filing in this court an agreement to release all grantees of property conveyed by her husband during coverture, and after said decree without her joining from all claim of dower and recording such a release in general terms as to such grantees in this county, the decree will be vacated. The above condition is made because of the offer of petitioner. Charles Hart, Esq., contra [Leg. Int., Vol. 36, p. 4.] REUKAUFF vs. ARONSON. A grant by a tenant of the remainder of his term, reserving rent, is such an instru ment as suit may be brought upon and an affidavit of defence required. Rule for judgment for want of a sufficient affidavit of defence. On May 1, 1874, William G. Cochran leased the premises at 1231 Chestnut street to George C. Keukauff for a term of five years at $4,165 per annum. George C. Reukauft, the lessee, on October 11, 1875. isased the same premises to Jacob Aronson for the term of three years and five months, from the 1st day of December, 1875, "being the remainder of Reukauff's term," at a rent of £5,000 per annum, to be paid in monthly instalments of $416.60. The lease from George C. Reukauff to Jacob Aronson contained the usual covenants in respect to distress, and it also contained the following clause: "This lease is made under and subject to, in all respects, the conditions and restrictions of those set forth and made between William G. Cochran and George C. Reukauff, and is based thereon and bound thereby, and is to give to said Aronson no greater rights or estate than is thereby given and granted to said Reukauff." Aronson paid the rent only to January 1, 1878, and Reukauff now claims $2,083.35, as the amount of rent due under the lease, from January 1 until May 1, 1878, and also $102.79 for unpaid gas bills, which Aronson refuses to pay, alleging that his lease was nothing more than an assignment, under which Reukauff cannot obtain judgment. For the rule it was contended that the lease in question was not an assignment, but a lease, and that Reukauff, therefore, had a right to distress or judgment on said lease, under the affidavit of defence law. This lease contains the clause in regard to distress, namely: "That all personal property on the premises shall be liable to distress, and also all personal property, if removed therefrom, shall, for thirty days after such removal, be liable to distress, and may be distrained and sold for rent in arrear." Counsel for defendant replied, that the lease from Reukauff to Aronson was nothing more nor less than a deed of assignment. It was for the remainder of Reukauff's term, and it passes all his interest in the premises. "A lessee, who transfers all his interest to a third person, whether by words of lease or assignment, and with a reservation of rent, cannot distrain for rent when due, unless the instrument by which the transfer is effected contains an express power of distress:" Judge Hare in Manuel vs. Reath, 1 Phila. 11; Parmenter vs. Wilber, 8 Taunton, 593. The covenants contained in this lease do not give any right to Reukauff to distrain on the goods of Aronson, nor do they give him the right to judgment. The original lessor may sue the original lessee or his assignee, but the lessee cannot sue his assignee: Lloyd vs. Cozens, 2 Ashmead, 131; Ege vs. Ege, 5 Watts, 134. Rule absolute. December 2, 1878. O. A. Law, Esq., for rule. W. J. Budd, Esq., contra. [Leg. Int., Vol. 36, p. 16.] GATZMER vs. PIERCE. A promissory note which has been given in the place of a former one, with an extension of time and the release of an indorser, cannot be defended against on the ground of want of consideration in the original. Holmes vs. Pauz, 6 Am. Law Reg. 482, followed. Sur rule for judgment. Copies of notes sued on. $324.69. LOCK HAVEN, PA., June 6, 1877. Three months after date I promise to pay to the order of William H. Gatzmer, at the Lock Haven National Bank, three hundred and twentyfour dollars and sixty-nine cents, value received, without defalcation. D. W. PIERCE. $482.32. LOCK HAVEN, PA., February 3, 1877. Four months after date I promise to pay to the order of Wm. H. Gatzmer, at the Lock Haven National Bank, four hundred and eightytwo dollars and thirty-two cents, value received, without defalcation. Credit the drawer. D. W. PIERCE. Affidavit of defence: D. W. PIERCE, being duly sworn, according to law, says: I am the defendant in this suit, and have a full defence to the whole of the plaintiff's claim of the following character, to wit: The plaintiff is William H. Gatzmer. In February, 1875, the said Gatzmer was president of the Karthaus Coal and Lumber Company, and in that capacity made, executed and delivered to me a contract of which the following is a copy: PHILADELPHIA, February 17, 1875. We have this day sold to D. W. Pierce, of Renovo, Clinton county, Pa., one million five hundred thousand feet B. M. of hemlock timber, ou Drury's run and its tributaries, to be cut clean as he goes, all trees measuring twelve inches or more at the smaller end, for which he promises to pay one dollar per thousand feet, B. M. Scribner's rule, straight and sound, and in payment of which he gives us his two promissory notes, as follows: one dated February 1, 1875, at seven months from date for $750, and the other dated February 1, 1875, at fourteen months from date, for $750, making together $1,500, with the privilege of using the streams and improvements thereon for getting his timber to market, and the railroad of the corporation for loading and shipping his bark, promising not to interfere with the coal or other operations of the company on said railroads and streams, and he agrees to use all due diligence in protecting the property from damage. Attest, (Signed) WILLIAM H. GATZMER, President. JONA. GILLINGHAM, Secretary and Treasurer of Karthaus, etc. The first note recited in said contract I paid; the notes sued on are renewals of the second note of $750 with interest added. I proceeded to take the bark off the trees, and under my rights in the contract, and in accordance with the notorious usage of the lumber trade, reserved the logs until such time as I could dispose of them to advantage When I did propose to cut I found that the Karthaus Coal and Lum ber Company had been in financial embarrassment when they made their contract with me, and that they had been sold out by the sheriff, and the property on which my logs stood was in the possession of a committee of the purchasers. I appealed to the committee for permission to take my logs and was refused. The plaintiff here, William H. Gatzmer, was and is one of the committee. I have never been able to get my property, and hence the consideration for the note in suit has failed. Mr. Gatzmer is not a bona fide holder for value without notice, for even if he owns these notes himself, and is not suing for the company, which I believe, he took them with a full knowledge of the terms of his contract with me, and of the fact that I had not received my lumber which I was to have. The first note of $750 more than paid for all the bark which I took off the property. All of which I expect to prove at the trial of the cause. For the rule it was contended: 1. Under the ruling in Homes vs. Paul the affidavit of defence would be insufficient had the original note been sued on by the present plaintiff as indorsee and holder, he not being affected with notice: Homes vs. Paul, 5 Clark's P. L. J. 461; 6 Amer. L. R. 482; 3 Grant, 299. 2. As the affidavit does not aver that the plaintiff was a holder of the original note as collateral security, or in payment for a pre-existing debt, it must be assumed that he was a bona fide holder for value and could recover: Muirhead vs. Kirkpatrick, 4 Harris, 117; Id., 9 Harris, 237; Bronson vs. Silverman, 27 P. F. S. 94. 3. The notes sued on are not a renewal of the original note, but a substitution in so far as the Karthaus Company was the payee and indorser of the original note. In the notes sued on the Karthaus Company is neither payee nor indorser, and therefore was released, and this release is a valuable consideration, and forms a new and independent contract: Muirhead vs. Kirkpatrick, 9 Harris, 237. 4. Inasmuch as the defendant secured a delay of eight months in the payment of this debt he has received by the giving of time a present new and valuable consideration: Petrie vs. Clark, 11 S. & R. 388. 5. Inasmuch as the notes sued on are in the individual name of William H. Gatzmer, and inasmuch as in this transaction he was neither acting as agent for the Karthaus Company, and was not bound individually to perform their contracts, the defence set up cannot bind him Holmes vs. Paul, 5 Clark, 6 Amer. L. R. 482. Against the rule it was argued; 1. As the plaintiff could not recover on the original note he cannot recover on the substituted notes. 2. Any defence open to him as to the original payee is also open to him or to the subsequent holder. 3. The present holder is not a bona fide holder for value. Oral opinion delivered December 28, 1878, by LUDLOW, P. J.-Under the authority of Holmes vs. Paul we must enter judgment for the plaintiff on this rule. The defence set up would not be a good defence even on the original note had it been sued on; much less can it be a defence on the substituted notes which have been negotiated. The giving of time and release of the indorser also constitute a new consideration for the notes sued on. Rule absolute. A. I. Fish, Esq., for the rule. [Leg. Int., Vol. 36, p. 16.] THE GIRARD LIFE INSURANCE, ANNUITY and TRUST COMPANY, Administrator of EDWARD MAGARGEE, deceased, to the use of SARAH R. MAGARGEE, vs. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK. Evidence of a custom, when offered to account for a departure from the terms of a written contract, will not be received unless such custom is alleged in the pleadings. Rule for a new trial. This case was first tried in 1875, when the plaintiff was non-suited. Upon writ of error the Supreme Court took off the non-suit, and a venire facias de novo was awarded. (See 35 Legal Intelligencer, 122.) On the last trial the plaintiffs offered in evidence a policy which stipulated that the company assured the life of Magargee in $10,000, in consideration of the sum of $51, and of the quarter annual premium of $51, to be paid on or before the 14th days of April, July, October aud |