Baker v. Baker. entered into between respondent and libellant, he did not know she was married and had a husband living; but when he learned of that fact, he left her and has since refused to return to her. The answer averred that the divorce proceeding instituted by libellant is for annulment of a supposed or alleged marriage and not for a divorce from the bonds of matrimony, and that in this proceeding for annulment there is no right on the part of respondent to demand alimony pendente lite or payment of a counsel fee, but if these allowances are to be made, they must abide the final decree of court. The divorce proceeding was instituted under the terms of the Act of April 14, 1859, P. L. 647, which authorizes the Court of Common Pleas to decree the nullity of a bigamous marriage when the libellant shows not only the existence of a previous marriage by respondent, but that libellant is an “innocent or injured party to the alleged marriage with respondent:" O'Keefe v. O'Keefe, 3 Dist. R. 451. Where the proof fails to show that the libellant is the innocent or injured party, but that he has wilfully and deliberately entered into a marriage ceremony, and has sustained with libellant an illegal relation, the law will not aid libellant to annul the marriage, but will leave the parties to their own devices: Heinzman v. Heinzman, 4 Dist. R. 225. "To the innocent and injured party alone can relief be granted:" Thompson v. Thompson, 10 Phila. 131. In Moyer v. Moyer, 1 D. & C. 196, it was held that: "The right of a wife to counsel fees and alimony pendente lite is not statutory, but is an outgrowth of the relationship of husband and wife, and pertains as well to actions for annulment as to divorce; and that a wife who denies the averment of her husband as to the invalidity of their marriage, which he seeks to have annulled, is entitled, if she is without means to contest, to a reasonable allowance for the purpose." In Smith v. Smith, 24 Dist. R. 527, this court allowed alimony and counsel fee to a wife who instituted proceedings to annul a marriage with a bigamous husband. Quoting from Brown on Divorce, 267, and cases cited, the opinion of the court held that: "The validity of the marriage is not material where there has been a marriage, or some sort of entering upon the marital relations admitted or proved to the satisfaction of the court; and alimony will be allowed if there is a marriage de facto, although a marriage de jure is denied.” In Kline v. Kline, 1 Phila. 383, it was held that every presumption of law must be made in favor of the legality of the marriage admitted to have been consummated between the parties. In that case counsel fee and alimony were allowed pending the determination of the suit. In McClain v. McClain, 40 Pa. Superior Ct. 248-251, Henderson, J., said: "There is a class of cases where only the innocent or injured party will be heard in an application to annul a marriage, as provided in the Act of April 14, 1859, P. L. 647. That applies, however, to cases of supposed or alleged marriages which are absolutely void by reason of one of the parties thereto having a husband or wife living at the time. In such a case, the innocent party may have a decree that the supposed marriage is null and void. The decree in that case is not that a divorce be granted, but that the marriage be declared void, . . . the marital relationship of the libellant with the respondent cannot be continued lawfully, and the policy of the law should be to permit them to undo the wrong committed." And now, to wit, May 5, 1924, it is ordered that the rule for alimony and counsel fee be made absolute, and that the libellant pay $35 counsel fee and $25 per week alimony. Quinn v. Reed. Pleadings Foreign judgments - Presumption of residence-Service of process-Act of April 14, 1851. In an action upon the judgment of a court of a sister state, it is not necessary to aver in the statement of claim that defendant did in fact reside within the jurisdiction of the court in which the judgment was rendered, where the transcript of the sheriff's return of the summons shows service by leaving a copy at the defendant's residence. This raises a presumption that defendant was a resident within the jurisdiction of the court at the time suit was instituted and the process served. Act of April 14, 1851, P. L. 612, considered. Statutory demurrer. C. P. Erie Co., Sept. T., 1921, No. 288. W. Louis Schlesinger, for plaintiff; L. E. Torry, for defendant. HIRT, J., Dec. 20, 1923.-Since the order of Nov. 28, 1922, overruling the statutory demurrer to plaintiff's statement, a motion for a reargument was granted. Before reargument, plaintiff amended his statement of claim by attaching a full and complete transcript of the proceedings had in the District Court for Oklahoma County, in the State of Oklahoma, in which court judgment was entered against the defendant in favor of the plaintiff. The judgment there entered is the foundation of the action here. To the amended statement defendant filed a statutory demurrer, alleging that the statement is insufficient in law, in that it does not aver that defendant was a resident of the State of Oklahoma at the time the suit was brought, nor that the summons was served upon him within that state. The transcript of the summons, filed as part of the Oklahoma record, contains a return of the sheriff to the effect that on April 3, 1916, he executed the summons by delivering a true copy thereof, at the usual place of residence of F. O. Reed, with B. M. Dilley, he being a member of defendant's family over sixteen years of age. The Act of April 14, 1851, P. L. 612, in section 10, provides: "If the record of a judgment of another state does not show that personal service of the notice or process by which suit was commenced, upon which said judgment was obtained, was made in such foreign state, it shall be sufficient to maintain a plea to the jurisdiction of the court in which said judgment was rendered." In the case of Reber v. Wright, 68 Pa. 471, followed in Shilling v. Siegle, 207 Pa. 381, objection was made that the record on its face showed that there was no personal service on defendants, but it was held that, as it appeared there had been service by a copy of the writ left at the place of residence of the defendants, the service was sufficient to sustain the jurisdiction of the Ohio court, in the absence of any evidence that defendants were not at the time residents within the jurisdiction of the court. In other words, without more than appeared from the face of the record, the presumption was that defendants were residents of the State of Ohio at the time the suit was instituted and the process served. In support of that conclusion, Mr. Justice Sharswood, in part quoting the ruling of the lower court, said: "The whole object of the 9th and 10th sections of that act of assembly (Act of April 15, 1851, P. L. 614) was to provide for the case of an attempt to make a resident of this State party to a suit in another state by the service of notice or process upon him in this State. The 9th section provides that 'it shall be competent and lawful for a defendant in any action of debt upon a judgment of a court of another state, for maintaining a plea in bar to said action, to prove the service of the notice or process by which the original action was made on him in that state.' The 10th section was intended merely to provide that if Quinn v. Reed. the record on its face, where there was personal service, did not show that it was made in such foreign state, it should be sufficient to maintain a plea to the jurisdiction. It surely did not mean to say that where a service was made by leaving a copy at the residence of the defendant, or where there was a voluntary appearance, either in person or by attorney, the plea to the jurisdiction should be thereby maintained. Perhaps there was no occasion for the act. It seems to have been passed ex majori cautela. Such personal service out of the jurisdiction of the court in which the judgment was rendered clearly would not give jurisdiction. All the authorities concur in this. 'No sovereignty,' says Mr. Justice Story, 'can extend its process beyond its own territorial limits to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity and incapable of binding such persons or property in other tribunals:' Story on Conf., ch. 14, par. 539. To the same effect is Rogers v. Burns, 27 Pa. 525. But to give the Act of 1851 the broader construction here contended for would be in violation of the Constitution of the United States and the Act of Congress passed in pursuance thereof." It, therefore, appears that, since the record of the foreign judgment shows that service was made by leaving a copy of the summons at the residence of the defendant, a plea to the jurisdiction cannot be maintained until it be shown that defendant in fact was not resident within the jurisdiction of the Oklahoma court at the time of service. The presumption that defendant's residence was in Oklahoma arises from the return of the sheriff, and, therefore, the statement of claim need not contain an averment to that effect. And now, to wit, Dec. 20, 1923, the statutory demurrer filed April 18, 1923, is overruled, with leave to the defendant to file his affidavit of defence within fifteen days. From Lytle F. Perry, Erie, Pa. Scheffey v. Scheffey. Divorce-Desertion-Allegata and probata-Time of desertion—Master— Malice-Absence of consent. 1. Where a separation is not malicious in its inception, no inference of malice arises from its continuance. To convert such separation into a desertion by an after-developed purpose, there must be something tangible to mark a change of intention. 2. The failure of agreement between the allegata and probata as to the time of the desertion is fatal to the application for divorce on that ground. 3. The averment in the libel of the date of the desertion must be proved as alleged. 4. To establish sufficient ground for a decree in divorce on the ground of desertion, the proof must disclose the absence of the consent of the libellant to the separation. Divorce for desertion. C. P. Montgomery Co., June T., 1923, No. 40. WILLIAMS, J., Dec. 24, 1923.—The petition or libel in divorce charged that on or about Oct. 1, 1918, the husband respondent wilfully and maliciously deserted the wife libellant and absented himself from her habitation without just or reasonable cause, and has continued said desertion hitherto. The testimony of the libellant is to the substantial effect that the respondent, without assigning any reason for his conduct, left her on or about Oct. 1, 1918, a day or two before he was sent to the army, that, to witness his entrainment and departure for military service, she went to the railroad Scheffey v. Scheffey. station, where she held with him a conversation, in which, while he blamed her for his induction into the service, he said nothing to indicate an intention on his part permanently to separate himself from her, that, after his discharge from the army, in January of the following year, subsequent to telephonic request of her by him, she "permitted him to call" upon her, and that, at the interview thus graciously vouchsafed by her, he stated that he would never again live with her. Other than as heretofore narrated, the testimony is silent as to the facts and circumstances attendant upon the leaving alleged to have taken place on or about Oct. 1st. Thus, it would seem that if the respondent formed a wilful and malicious intention to desert the libellant, the formation of such intent did not antedate sometime in January, 1919. Where the separation is not malicious in its inception, no inference of malice arises from its continuance. To convert such separation into a desertion by an after-developed purpose, there must be something tangible to mark a change of intention. If there be such tangible marker, then the period of desertion runs only from the time of the change of intention: Hinchcliff v. Hinchcliff, 20 Dist. R. 484 (1911), Holt, P. J. The failure of agreement between the allegata and probata as to the time of the desertion is fatal to the application: Smith v. Smith, 15 Pa. Superior Ct. 366 (1900), Orlady, J., and Rippman v. Rippman, 38 Montg. Co. Law Repr. 312 (1922), Swartz, P. J. There must be a substantial agreement in the proofs and allegations as to the time of the desertion: Mann v. Mann, 32 Montg. Co. Law Repr. 165 (1916), Miller, J.; Oxnam v. Oxnam, 36 Montg. Co. Law Repr. 56 (1920), Swartz, P. J., and Crabtree v. Crabtree, 37 Montg. Co. Law Repr. 145 (1921), Swartz, P. J. A wilful and malicious desertion having been set forth in the libel as occurring on or about Oct. 1, 1918, the libellant is required to prove a desertion as of that date. The averment in the libel of the date of the desertion must be proved as alleged: Ewing v. Ewing, 2 Phila. 371, Allison, J.; Tannenbaum v. Tannenbaum, 18 Dist. R. 271 (1909), Barratt, J., and Penndorf v. Penndorf, 25 Dist. R. 517 (1916). If desertion at a specified time be alleged, the fact of desertion at the time set forth, and not at some other time, must be clearly proven: Llewellyn v. Llewellyn, 12 Luzerne Legal Reg. Reps. 331 (1905), Ferris, J., and Cochran v. Cochran, 1 Westmoreland L. J. 38, McConnell, J. Where the libel alleges a desertion at one time and the evidence shows a desertion months afterwards, the divorce cannot be granted: Raff v. Raff, 25 W. N. C. 155 (1889), Biddle, J.; Trotter v. Trotter, 47 Pitts. L. J. 109 (1899), White, P. J., and Vasdahl v. Vasdahl, 70 Pitts. L. J. 229 (1921), Stone, J. The master makes no specific finding of fact that the desertion as charged in the libel has been established by the evidence. In every action of divorce referred to a master, he should, in addition to his other findings of fact, make a specific finding upon the ground of divorce as alleged in the libel: Moore v. Moore and Campbell v. Campbell, 11 Dist. R. 253 (1902), Wiltbank, J.; Matheson v. Matheson, 11 Dist. R. 289 (1902), Sulzberger, J.; Pomeroy v. Pomeroy, 11 Dist. R. 299 (1902), Pennypacker, P. J., and Dean v. Dean, 46 Pa. C. C. Reps. 598 (1918), Berger, J. This requirement is essential because a divorce may be granted only upon proof of Scheffey v. Scheffey. the specific act or acts alleged in the libel as ground thereof: Penndorf v. Penndorf, 25 Dist. R. 517; Dean v. Dean, 46 Pa. C. C. Reps. 598. Nowhere in the record does it appear that the desertion charged was contrary to the wishes of the libellant and without her consent. An application for divorce on the ground of desertion must establish with certainty each element necessary to constitute desertion. Unless all the essential ingredients co-exist in proof, no decree can be granted: Angier #. Angier, 63 Pa. 450 (1870), Thompson, C. J., and Smith v. Smith, 15 Pa. Superior Ct. 366. To establish sufficient ground for a decree in divorce on the ground of desertion, the proof must disclose the absence of the consent of the libellant to the separation: Ferree v. Ferree, 19 Pa. C. C. Reps. 67 (1897), McConnell, J., and Dean v. Dean, 46 Pa. C. C. Reps. 598. The master makes no specific finding of fact that the desertion was against the wish of the libellant. The report of a master in divorce should be framed according to the rules for the preparation of reports of masters in chancery, and, hence, should contain a specific finding of the existence of every element necessary for the establishment of a case by the libellant: Moore v. Moore, 11 Dist. R. 253; Klair v. Klair, 26 Dauphin Co. Reps. 60 (1923), Wickersham, J., and Thornton v. Thornton, 10 Lehigh Co. L. J. 119 (1923), Reno, J. Marriage being a sacred human relation, not to be dissolved without proof of imperious reason, a divorce should not be easily obtainable. To aid, without clear necessity, one party in the severance of the matrimonial tie may be wrong, not only to the other party, but to both parties, their children and the public: Richards v. Richards, 37 Pa. 225 (1860), Lowrie, C. J., and Edmond's Appeal, 57 Pa. 232 (1868), Strong, J. Only where the application is made for the cause set forth, and no other, and fully sustained by testimony, may a court cut the bond of marriage: Angier v. Angier, 63 Pa. 450. Marriage and the family relation lying at the bottom of social life, the deep interest society has in their continuance forces a court to be strict in divorce construction: Jones v. Jones, 66 Pa. 494 (1870), Agnew, J. Before there can be a dissolution of the marriage contract, the ability, learning and conscience of the court must be called into exercise. It was never intended that the judicial function should, in any material degree, be relinquished by conducting the proceedings before a master in his office or that weighty judicial responsibility could be evaded by shifting it over to a member of the bar. While the witnesses may be examined and their testimony be reduced to writing by the master, the court itself, by its own knowledge of the testimony, before decree, must be satisfied that the averments of the libel have been fully and properly proven. It is not sufficient that they have been so proven to the satisfaction of the master by a witness, or witnesses, neither seen nor heard by the court. Therefore, of whatever drudgery by the appointment of a master the court may relieve itself, it cannot escape the burden of a careful consideration of the testimony made for the purpose of ascertaining if, in truth and fact, the ground for the divorce sought has wholly been established by the legal evidence: Middleton v. Middleton, 187 Pa. 612 (1898), Dean, J.; Howe v. Howe, 16 Pa. Superior Ct. 193 (1901), Orlady, J., and Edgar v. Edgar, 23 Pa. Superior Ct. 220 (1903), Orlady, J. The findings of fact of a master in divorce do not have the same force and effect as those contained in the report of a referee in a civil case, much less the opinion of a judge in the trial of a case without a jury. So, while it is the duty of the court to give consideration to the opinion of the master, the |