F. Smith, 448, or The Atlantic and Ohio Telegraph Company, 16 P. F. Smith, 57, in each and all of which actual dividends were earned and declared. Had it been proved that this company had earned money by which the value of its stock was increased and the sale resorted to as a method of dividing it among the stockholders, we should hold it to be a stock dividend; but nothing of the kind is proved or pretended. The State cannot be deprived of her taxes by any kind of evasion or legerdemain; but her claim, like that of all other plaintiffs, must be established by evidence. It certainly is not shown by the letter of Mr. Brewster, and that is the only proof laid before us.

A dividend, both in common and legal parlance, is "a portion of the principal or profits divided among several owners of a thing:" Bouvier's L. Dictionary. Webster defines it to be "a part or share." In speaking of it in connection with moneyed corporations we always understand it to be the share or profit, coming to each holder of stock. From aught that appears in this case it was a sale of stock at a very low price in order to raise money. It is true the privilege was given to stockholders alone; but neither that, nor the dividend soon after declared on the whole stock, prove that any money was earned by the company which should have been divided. On this increase of capital the State was entitled to her bonus under the law. She also got her tax on the dividend, which very probably never was earned, but cannot claim it on the sale of the stock without more proof than was exhibited in the case. The jury will therefore render a verdict in favor of the defendant. To this charge the counsel for the Commonwealth did except, and at request of the attorney-general this exception sealed.

Hon. F. Carroll Brewster and John C. Knox, Esq., for Commonwealth.

Louis W. Hall, Esq., and Hon. Francis Jordan, for defendant.

[Leg. Int., Vol. 30, p. 265.]

JACOB WANAMAKER vs. Emma WanamAKER.

The respondent in proceedings for divorce lived in this county. Her residence was known to her husband, and his relatives, and probably to his counsel.

The libel was not signed with the libellant's name. The subpoena, and alias subpœna were returned nihil.

The proclamation was inserted by the direction of counsel for libellaut in an out of the way place in a weekly paper, that it might not be seen.

The notice of the time and place of taking testimony before the commissioner was not served personally on the respondent as directed by the court.

Held, That the court had power to reverse a decree of divorce thus obtained from it.

Opinion delivered by

PEARSON, P. J.-On the 4th day of February, 1873, Jacob Wanamaker obtained a decree divorcing him from the bonds of matrimony entered into with his wife Emma, and on the 3d day of March following, Emma, the wife, presented her petition praying to have the decree revoked and annulled on the ground of fraud and want of notice of the application. Many depositions have been laid before the court, from which the following facts are made out by what we believe to be the decided weight of the evidence. But before going into what we conceive to be the actual merits of the case, we will point out a grave legal irregularity in the proceeding.

Applications for divorce must be regularly signed, and verified by affidavit, before a subpoena can lawfully issue. This is signed by one "Jacob Barnhardt," and the affidavit signed in like manner. Whether this was in reality done by the libellant, or not, is not made to appear. The whole proceeding was ex parte, the wife never notified in any way, and therefore the irregularity is not cured. The libellant must at his peril take care to have all regular, and irregularity in the affidavit in failing to follow the words of the act of assembly was held to be fatal in Hoffman vs. Hoffman, 6 Casey, 420. The words of the statute are probably set forth here, but it is not signed in the name of J. Wanamaker, but of Jacob Barnhardt. This we consider fatal in a case where there was no service, or appearance to cure the defect. There is no name inserted in the beginning of the affidavit, which is left blank, therefore it cannot be ascertained from the record who was meant.

Emma Wanamaker was born in this city; her parents lived here, and the evidence shows that she always resided with them, with the exception of a day or two when she was with her husband at his father's. Her residence was well known to her husband, and all of his relatives. It is more than probable that it was known to his counsel also. A subpœna in divorce issued after she had been absent about a year. That writ was returned "nihil." An alias issued with like return. After this the proclamation was published in the newspaper as required by law. Both the sheriff and his deputy inquired as to the residence of this woman. The counsel said she lived on Allison's Hill, or had lived there, without giving any further information. The deputy sheriff was led to believe that she no longer resided there. Her father's name was not imparted to the sheriff, and as "Allison's Hill" contains several hundred houses it was extremely difficult for the sheriff to discover her residence, unless informed as to her family. This was known to the libellant and all of his family; to his counsel also. The husband was in the practice of sending money to her monthly, under an order of maintenance, which was delivered by his relatives. When the proclamation came to be made, the counsel desired that it should be inserted in an out of the way place, that it should not be seen, and took charge himself of the advertisement. The editor was requested to have it put in the weekly paper in an out of the way place, giving as a reason, that he did not want it seen by the party to whom it was addressed. The weekly paper had not more than some twenty subscribers in the city, whilst the daily had doubtless several thousand. It is pretty clearly proved that Emma never saw the proclamation, or even heard of it, until after the divorce was granted. It is equally clear that pains were taken to keep the whole proceeding concealed from her. True, some of the witnesses stated that Emma said she heard her husband was going to obtain a divorce, but could not get it without her signature, or name, whilst this is denied by her, and if said, she was greatly mistaken in law, yet she could clearly say he could not obtain it without notice to her, as she resided in the county. The desertion was said to have taken place on the 1st day of February, 1871. Before the two years' absence was completed, to wit: on the 23d of January, 1873, application was made for the appointment of a commissioner to take testimony, and it was ordered by the court that notice be given to the respondent, if

resident in the county, and if not, to be placed in the prothonotary's office. It was well known to the party, his counsel, and every witness examined in the case, as is shown by their testimony since taken, that respondent lived in the city with her father, yet the notice was put in the prothonotary's office, and the testimony taken before the commis sioner, ex parte. At the time the witnesses were examined the two years had expired, and five days over; but had it been made known to the commissioner that notice had not been given as ordered, he would doubtless have refused to take the depositions, and if made known to the court, they would have been rejected, and not suffered to be read. They were illegally taken. It is thus manifest that a gross fraud was prac tised on both the party and the court, one which vitiates the whole proceeding, and must not be suffered to prevail. On the 3d day of March, less than a month after the decree, an application was made to rescind it, and the fact is now interposed that the libellant is again married, and would be placed in a most unpleasant situation, as well as involving his present wife in trouble, should such a decree be made. If he mar ried within less than a month after the decree, we can only say that it was done in hot haste, and must have been on a very short courtship, or one carried on whilst he was a married man. So far as he is concerned, it is only a just punishment for the fraud meditated and practised.

Has this court the power to reverse the decree thus obtained? Ever since the decision in Fermor's Case, 3 Co. Rep. 77, 78, it has been held with great uniformity of decision that any judgment or decree, however solemn, may be vacated for fraud and covin. The act, however lawful, yet if mixed with fraud in its procurement, may be vacated and annulled. It would be a mere affectation of learning to cite authorities for a principle so long settled, and universally sustained. This has been applied to decrees in divorce cases, not only by the courts of this State, and of England, but also by nearly every other State of the Union. In Allen vs. Maclelan, 1 Io. 328, it was held that the court had power to vacate a decree of divorce at a subsequent term for fraud practised, although the party obtaining it had married again. This is sustained, and again acted on, in Hoffman vs. Hoffman, 6 Casey, 417. In Boyd's Appeal, 2 Wright, 241, a decree was vacated for fraud even after the death of the libellant, and the respondent restored to her marital rights of property, the decree having been fraudulently obtained without notice to the wife. In Adams vs. Adams, the whole subject came under review in the Supreme Court of New Hampshire, where all of the authorities are collected and recited. There, one of the evidences of fraud was, that the publication was in a newspaper which there was every reason to believe neither the wife nor any of her friends could see. Where an artifice of this kind is practised, the court should not hesitate to rescind the decree, says the chief justice, in delivering the opinion. See this case well reported in the "Legal Opinion," of May 3, 1873. We are also asked to say that the sheriff's return of "nihil," not sworn to, is impotent. It would be better for the sheriff in such cases to pursue the act of assembly, by making proof that "the defendant is not to be found in the county," such return should be verified by affidavit, but the return here made has been customary, and we are

unwilling to question it now, as it might injuriously affect many cases. The sheriff's return cannot readily be impeached or treated as a nullity. As the other reasons are sufficient, and call upon the court to reverse the decree, we shall not pass on this exception. The decree of divorce must be reversed, and rescinded at the cost of Jacob Wanamaker, so far as regards this proceeding.

And now, to wit, June 24, 1873, the application in this case came on to be heard upon the petition, answer and evidence, and was fully argued by counsel, whereupon it is considered by the court, that the decree made on the 4th day of February, 1873, granting a divorce to Jacob Wanamaker from the bonds of matrimony contracted between him and his wife, Emma Wanamaker, be, and the same is hereby rescinded, revoked and annulled, as fully as if the same had never been made and ordered, and it is further decreed that the said Jacob Wanamaker pay the cost of this proceeding.

J. M. Speise and F. K. Boas, Esqs., for petitioner.
J. M. Wiestling, Esq., for wife.

Court of Common Pleas of Delaware County.

[Leg. Int., Vol. 30, p. 77.]

EXECUTORS OF WILLIAM WRIGHT, DECEASED, v8. ADMINISTRATORS OF THOMAS W. CHEYNEY, DECEASED.

Judgment entered against administrators, in a suit upon a contract of their decedent, for want of an affidavit of defence, is irregular and void, and will be stricken off on motion.

Opinion delivered January 27, 1873, by

BUTLER, P. J.-That a judgment cannot generally be taken against administrators and others sued in a representative character, for want of an affidavit of defence is clear; 4 Y. 235; 1 Miles, 263; and is admitted by plaintiffs' counsel.

cog

But it is argued that the case before us forms an exception, and 1 Miles, 256, and 1 Grant, 208, are cited as authority for the position. We do not think, however, that these cases bear any resemblance, in fact or principle, to our case. In the first, the suit was upon the agreement of the executor defendant; and the second was a claim against lands in the hands of the guardian defendant, which arose during his possession. In both instances, the defendants would necessarily be nizant of any defence which might exist; or as likely to be so, as if the suits were against them personally. They did not, therefore, fall within the reason of the rule which exempts representatives defendants from the operation of the statute. In the case before us, the suit is upon a judgment confessed by the decedent. Administrators and other representatives are, under such circumstances, nearly, if not quite as likely to be unfamiliar with the case, and the defence to which it may be liable, as if the suit were upon the bond out of which the judgment grew, or any other contract of the decedent. Many things may have occurred to relieve the defendant, since the judgment was confessed, and before it came to the charge of the administrators. He may have

paid the debt in whole or in part, or may have been released by the plaintiff, or discharged by operation of law. We do not see anything, therefore, to take such a case out of the general rule, nor do we see any satisfactory evidence, that the administrators agreed that judgment should be so taken.

It would seem, from Mr. Sutton's affidavit, that their counsel, as well as himself, supposed at the time, that the plaintiffs were entitled so to take it, and contemplated its being done. There was nothing in the nature of an agreement, however, about it, and the opinion of counsel rendered any agreement unnecessary. The defendants' counsel acquiesced in Mr. Sutton's view of the law, and this is all we can see in the transaction to which he testifies-nor will the delay in making the motion to strike off, avail the plaintiffs. The administrators were not required to act; the judgment entered by the prothonotary on the plaintiffs' order, was a nullity. The fault is not a mere irregularity; it goes deeper, and avoids the judgment absolutely. There was no authority for the prothonotary's act; it was a violation of law. The judgment is, therefore, like judgments against married women or minors entered on warrant of attorney. Indeed, it is even more objectionable, because in such cases it might well be said that the record is correct, and the judgment therefore valid; that in the absence of a plea of coverture or infancy, it must have been so rendered in an adverse suit; that the defendant should now be treated as having waived or failed to put in the proper plea, and that the court should not, therefore, interfere, unless some equity be shown requiring it. But even there, the Supreme Court holds, that the judgment is absolutely void, that the court has no discretion in the matter, and that it must be stricken off: Knox vs. Flack, 10 H. 537; Glyde vs. Keister, 1 Casey, 85; Keiper vs. Hefricker, 6 Wr. 335; Brunner's Appeal, 11 Wr. 67.

Nor would our refusal to interfere help the plaintiffs-on writ of error (for which the administrators are yet in time), the Supreme Court would reverse the judgment.

The rule to strike off must therefore be made absolute.
E. Spencer Miller, Esq., for plaintiffs.

Court of Common Pleas of Juniata County.

[Leg. Int., Vol. 30, p. 47.]

WILSON vs. MARTIN, EXECUTOR of Belford, DECEASED.

Promise to pay debt of another-Indorser of note.

Summons in assumpsit. Pleas: "Payment and non assumpsit."
Charge to the jury, by

JUNKIN, P. J.-Under exceptions we have admitted all the evidence plaintiff offered, and there being no controverted facts, we must give you binding instructions. The facts are, that on the 14th May, 1867, Suloff, Frew & Parker gave their sealed note to plaintiff for $2,650, due one day after date, and for money loaned. Eighteen months after this note matured, plaintiff, considering the makers unsafe, offered to give