"to accompany their motion with affidavits or witnesses viva voce that the prisoner is incompetent to plead or conduct his defence." The motion being denied, a jury was empanelled and the trial proceeded. The foregoing and other rulings of the Court were duly excepted to and form the first nineteen specifications of error. orderly way. It would be a most dangerous precedent to sanction such a course of proceeding in any case. It has been suggested that the jurors, empanelled to determine the guilt or innocence of the prisoner, were also authorized to pass upon the question of his insanity at the time of trial; and That the application for a preliminary inquiry inasmuch as they did not find, as part of their as to the insanity of the prisoner was prompted verdict, that he was then a lunatic, he has no by a sense of duty to the unfortunate prisoner, right to complain that the preliminary inquiry and made in perfect good faith, cannot be doubted. was refused in the manner it was. That was a The evidence which the learned counsel were non sequitur. If his counsel had a right, as they able to adduce on the trial is convincing proof undoubtedly had, to make the application in that they were prepared to sustain their applica- question, it was the plain duty of the Court to tion by affidavits or witnesses viva voce; and if hear the testimony they had to offer in support the Court had not persistently turned a deaf ear of it. If that had been done, it can scarcely be to both, 'facts would have been presented which, doubted the learned Judge, in view of the eviin the exercise of a sound, judicial discretion, | dence, would have been constrained to grant the would have not only justified, but demanded a request, and thus the prisoner would have had preliminary inquiry as to the then mental condi- the benefit of the single inquiry as to whether he tion of the prisoner. was then insane, and therefore incompetent to plead, exercise his right of challenge, and otherwise assist in conducting his defence. The learned Judge after having refused to hear the evidence offered by prisoner's counsel, in what way, it may be asked, was the "judicial conscience" enlightened, and upon what did he base his judgment in refusing the application? The only answer that can be given is what he himself says in his opinion overruling motion in arrest of judgment and for new trial, viz., "The prisoner was about to be arraigned, when a suggestion was filed by counsel that the prisoner was insane at the time. An elaborate and learned argument was made by the counsel of the prisoner in his hearing. Nearly two hours were occupied in arguing and considering the motion, during which time I had the opportunity of observing the appearance and conduct of the prisoner, and the attention he gave to the proceedings. I had also the benefit of the information of the physician of the prison and others to assist me in coming to that sound judgment which it was my duty to exercise. Giving the matter the due consideration to which it was entitled, I came to the conclusion that the prisoner knew where he was, what he was here for, and what was being done." As to the information acquired by "observing the appearance and conduct of the prisoner," etc., it is perhaps all well enough so far as it goes, but it should not have been permitted to exclude the evidence of competent experts and others at hand. As to the information of the jail physician "and others," we are not informed how or when it was communicated. It does not appear, however, to have been in the shape of testimony in open court, and for aught we know, it may have been mere hearsay. At best, neither of the sources of information referred to should ever be accepted as a substitute for competent evidence adduced in open court in the regular and I am clearly of opinion that the judgment should be reversed for manifest abuse of judicial discretion in not granting the application referred to, and especially in refusing to hear any competent evidence in support of it. TRUNKEY and WILLIAMS, JJ., absent. On the same day that the opinions were delivered counsel for plaintiff in error moved for a re-argument on the following grounds :— (1) There was "probable ground" for belief that Webber was insane at arraignment. (2) The suggestion filed by counsel gave the Court "reason to doubt" the presence of insanity. (3) Discretion was abused. (4) Violation of the constitutional provision of allowing prisoners the assistance of counsel. (5) Violation of right to trial by jury upon issue of fact raised in abatement. (6) That injury was incurable, the prisoner being insane when put upon trial for his life, and the issue which would have been raised, not fully or fairly presented to the jury in the subsequent trial. A brief was subsequently filed by counsel. May 7, 1888. THE COURT. Re-argument refused. PER CURIAM. L. Ly Jr. Jan. 88, 153. Divorce Powers's Appeal. April 26, 1888. ing; and upon one occasion fired a shot at her husband from a revolver. Mrs. Powers denied these allegations, particularly as to the shot from the revolver; stating that upon the occasion in Desertion Indignities to personAlimony-Allowance for counsel fees-Amend-question she had been goaded by insults from her husband into the intention of taking her life and had seized a revolver for that purpose, but being ment-Practice. When a married woman continues to reside with her deterred by the cries of her child had fired into children in her husband's house, but the husband ceases to live with her owing to alleged conduct on her part, rendering it requisite for him to do so, he cannot obtain a divorce on the ground of desertion. A husband is not entitled to obtain a divorce from his wife on the ground that she has offered such indignities to his person as to render his condition intolera ble and life burdensome. A decree can only be entered on application of a wife for such conduct on the part of her husband. the air. Pending the evidence before the commissioner, Mrs. Powers presented a petition setting forth that she was without means to continue the litigation, and praying for an order on her husband for an allowance of $500 for her support during the litigation, and costs and counsel fees, and that upon final hearing an allowance be made her for permanent alimony. The Court refused the application for tempoA decree of divorce having been entered in pursuance of a libel which stated the above as the grounds rary alimony, costs and counsel fees; fixed the relied on, on appeal by the wife to the Supreme Court permanent alimony at one dollar per year and a motion was made at bar to amend the libel by in-entered an absolute decree of divorce a vinculo serting an averment of cruel and barbarous treatment | matrimonii. by the wife: Held, that the amendment would not be allowed as it was too late to change the cause of action at that stage of the proceedings. In the above case it appears that the libellant was a man of some property and that his wife was without means of support. The Court below declined to order him to pay her an allowance for counsel fees and expenses in litigation : Held, that this was an abuse of judicial discretion which the Court would review. An allowance of $500 was made accordingly. Appeal of Margaret A. Powers, from a decree of the Common Pleas of Crawford County, granting to the husband of the appellant, Patrick H. Powers, a divorce a vinculo matrimonii. The petition of Patrick H. Powers set forth as the grounds of his application for a divorce, a wilful desertion of his habitation by his said wife for two years, and also that she had offered such indignities to his person as to render his condition intolerable and his life burdensome, and thereby forced him to withdraw from his house and family. An answer was filed denying the allegations of the petitioner. A commissioner was appointed to take testimony, before whom evidence was adduced showing that the parties were married on April 10, 1866, and had two children. That immediately after their marriage they moved into a house belonging to Powers, where Mrs. Powers had ever since resided. In 1874 Powers ceased to live with his wife, and continued thereafter to provide but scantily for her support. Evidence was introduced showing that the wife was frequently cross and out of humor; refused to join in deeds conveying her husband's real estate; was "cool, crabid, and disagreeable;" failed at times to prepare the family meals, and do the ordinary wash Mrs. Powers thereupon took this appeal, assigning for error the decree of the Court. A motion was made at bar for leave to amend the libel by inserting an averment of cruel and barbarous treatment by the wife, which amendment the Court refused to allow. Roger Sherman (Samuel Grumbine with him), for the appellant. There was no desertion entitling the party to a decree on that ground. Smith v. Smith, 3 Phila. 489. Vanleer v. Vanleer, 13 Pa. St. 211.. The statute gives no right to a divorce for "indignities to the person" of the husband; nor is it necessary to allege, or material that he therefore withdrew from his house and family. To give the Court jurisdiction, the cause for asking for divorce must be specifically alleged in the complaint, and must be such as is declared by the law to be a cause. or be Schlichter v. Schlichter, 10 Phila. 11. It was error for the Court to refuse the petition Graves v. Cole, 19 Pa. St. 171. Melizet v. Melizet, 1 Parsons, 68. There was an abuse of discretion which will reviewed by the Supreme Court. Breinig v. Breinig, 2 Casey 161. McClurg's Appeal, 66 Pa. St. 366. Pearson Church and F. B. Guthrie (Julius | is the owner of lands, farms, mills, and houses, Byles with them), for appellee. The proof of desertion was sufficient. The allowance of counsel fees, etc., was within the discretion of the Court, and its decision cannot be reviewed. Breinig v. Breinig, 26 Pa. St. 165. and is engaged in business. He forced this litigation upon his wife, and she is compelled to employ counsel and incur large expenses in defending herself. The printing of her paper-book alone cost $129.75. To deny her the means to defend herself is to deny her justice. The refusal of the Court below to make any allowance for her coun The amendment should have been allowed, in-sel fees and expenses was such a palpable abuse asmuch as the case was actually determined in Torrie v. Torrie, 10 Phila. 174. of discretion that we will correct it here. The decree is reversed and the libel dismissed at the cost of the libellant; the rule of May 25, 1887, for counsel fees is made absolute; and it is now ordered that the libellant pay to the respondent the sum of five hundred dollars as the proper allowance for counsel fees and expenses in this litigation. It will be the duty of the Court below to enforce this decree. Opinion by PAXSON, J. TRUNKEY, J., absent. May 7, 1888. THE COURT. This decree must be reversed. The libellant alleges as his grounds for divorce (a) desertion, and (b) indignities to his person, etc. It is sufficient to say briefly that the desertion was not proved, nor was there even an attempt to prove it. The respond- Jan. '87, ent did not leave her home; on the contrary she has continued to reside in it with her children down to the present time. If there was any desertion, it was on the part of the libellant. The other ground for divorce is that the wife offered such indignities to the person of the husband as to render his condition intolerable and life burdensome. The Act of Assembly does not authorize a divorce for this cause at the suit of the husband. It must be on the application of the injured wife. A motion was made at bar for leave to amend the libel by inserting an averment of cruel and barbarous treatment by the wife. We declined 446. L. L., Jr. April 10, 1888. In re Nescopeck Bridge. Act of April 16, 1870- Viewers-Petitioner cannot also be a viewer. A report of grand jury, acting as bridge viewers under an Act of April 16, 1870, will be set aside after confirmation when it appears that one of the petitioners for the bridge was foreman of the grand jury. Quare, whether orders of approval and confirmation made on the routine work of the Sessions, without notice to the parties to be affected thereby, should be regarded as having the same degree of solemnity as judgments regularly entered after notice or on warrant of attorney. Certiorari to the Quarter Sessions of Luzerne to allow the amendment for the reason that it made a change in the cause of action, requiring for its support a different line of proof. The li-County. bellant could have amended below when, if the The record showed, inter alia, the following: respondent was of opinion that additional evidence was required to meet the new charge, she would have had an opportunity to introduce it. It would be unjust to allow the amendment at this stage of the proceedings. The most remarkable feature of the case was the refusal of the Court below to allow the respondent either alimony pendente lite, or counsel fees and expenses. The rule of May 25, 1887, for counsel fees and temporary alimony was discharged. The permanent alimony was fixed at one dollar per annum. In Breinig v. Breinig (26 Pa. 161) it was said by BLACK, J.: "It has been the uniform practice to allow a wife destitute of a separate estate, who is either suing or defending a cause of divorce, such reasonable sum as will enable her to carry it on." The libellant here is the husband. He A petition by certain citizens to have a bridge built across Nescopeck Creek in Nescopeck Township was presented to the grand jury of Luzerne County as provided for in the Act of April 16, 1870 (P. L. 1199), relating to the building of county bridges in Luzerne County. On November 19, 1881, the grand jury filed their report recommending that the said bridge be built and that the amount to be expended therein should not exceed the sum of $1500. On the same day the Court confirmed this report. Subsequently, on May 14, 1884, certain citizens and taxpayers presented a petition asking that the approval of the Court be stricken off, for the reason that said bridge would be useless and unprofitable, and that the supervisors were about to build another bridge over the same creek. The Court, WOODWARD, J., granted a rule to show cause why the said approval should not be | vember, 1881, and on the same day, without nostricken off, and October 27, 1884, made this tice to the county or township authorities, was rule absolute, for the reason that the foreman of approved by the Court. On the 14th May, 1884, the grand jury which made the report was a peti- the bridge not having been built by the county, tioner for the bridge. on the petition of citizens and tax-payers of Luzerne County a rule to show cause why the approval of the Court should not be struck off was granted and notice directed to the county commissioners and the supervisors of Nescopeck. This rule was made absolute on the 27th Octo Upon application the rule was reinstated, and further depositions taken, and after a hearing upon the same reiterated the former order, and struck off the approval of the report of the grand jury. Whereupon this writ was taken, and error assigned to the action of the Court: (1) in enter-ber, 1884, for the reason that the foreman of the taining the petition asking to strike off the approval, and (2) in striking off the same. A. Ricketts, for plaintiff in error. The Court had no power to review the action of the grand jury as to matters of fact involved in the inquiry before them. Broomall's App., 75 Pa. St. 173. grand jury which made the report was a petitioner for the bridge, and took part in the deliberations of that body upon the propriety of granting his own petition. A motion to reinstate the rule was refused on the 16th November, 1885. The contention of the plaintiff in error is that the Court had no power to make the order vaThe judgment of approval of the report of the cating or striking off the approval of the regrand jury in this case was the equivalent of a judg-port. He argues that the indorsement of the ment upon a verdict of a jury in ordinary Com-approval of the Court was a judgment rendered mon Pleas cases. That the Court has no power by the Quarter Sessions, and that the power of to summarily strike off such judgment is clearly Court over it ended with the term in which it declared inwas entered. Breden v. Gilliland, 67 Pa. St. 34. Horner v. Horner, 39 Id. 126. King v. Brooks, 72 Id. 363. Reynolds v. Barnes, 76 Id. 427. And especially was this beyond the power of the Court after the end of the term at which the judgment was entered. King v. Brooks, 72 Pa. St. 363, and cases cited. Gustav Hahn (C. B. Jackson with him), for defendants in error. In Breden v. Gilliland, 67 Pa. St. 34, it is said: "A Court has no power to strike off a judgment regular upon its face." Is this judgment regular, where a man acts as judge in his own case, as petitioner and as foreman of the grand jury in one and the same person? It is a fundamental rule in the administration of justice that a person cannot be judge in a cause wherein he is interested. Broome's Legal Maxims, p. 109. The Court will notice a substantial and fatal error in the proceeding, although the counsel have omitted to make it a special exception, when it is deemed essential for the purposes of justice. Commonwealth v. Cane, 2 Parsons, 265. May 7, 1888. THE COURT. There is but a single question raised on this record. The report of the grand jury locating a county bridge in Nescopeck and appropriating $1500 to its construction was presented in Court on the 19th No In support of this proposition King et al. v. Brooks et al. (72 Pa. 363) is cited by the plaintiff in error. But the question under consideration in that case related to a common law judgment entered upon a verdict. In the opinion delivered by SHARSWOOD, J., it is stated that judgments appearing to be regular on the record should not be struck off after the close of the term, but that judgments entered by virtue of a warrant of attorney or by default may be opened or vacated for cause, without limit as to time. The rule to be gathered from the cases seems to be that for reasons appearing upon the face of the record, a judgment by default or upon warrant of attorney may be struck off whenever the defect in the record is brought to the attention of the Court, without regard to the term in which it was entered. So, for reasons appearing dehors the record, such judgment may be opened to let in a defence without limit as to time. If we concede to the entry of approval upon the return of the grand jury the effect of a judgment by default, as is contended for by the plaintiff in error, yet the reason for the action of the Court was upon the face of the record. The foreman of the grand jury was a petitioner for the bridge. This made him a party to the proceeding. As a grand juror he was to act upon his own petition. While representing the public and inquiring into the necessity for the expenditure of $1500 on the part of the county in the erection of this bridge, as a party he was asking that the expenditure should be made and representing the bridge to be necessary. These positions were clearly incompatible. The public had the right to an impartial and disinterested grand jury, so order. of debtor and creditor. loan was in the business capacity and integrity of the borrower, and if this security fails to meet her expectations an action of trover must, under the evidence, prove equally disappointing. Error to the Common Pleas No. 1, of Philadelphia County. Trover, by Catherine Borland against Ellis Stokes, to recover the value of certain stocks and bonds of plaintiff alleged to have been converted by said Stokes to his own use. that the questions of the necessity and cost of not such evidence as the Court could submit to the the bridge might be passed upon without bias. jury upon the subject of a wrongful taking, for the But the record showed that a petitioner was fore-securities were delivered by the plaintiff or on her man of the grand jury that granted the petition. This was a sufficient reason for setting the report The use of the securities in some proper business aside, and if the attention of the Court had been way is not a wrongful appropriation or detention, for they were placed in his hands to help him in business. called to it when the report was presented it The promise to replace the securities is like any other would have been done promptly. It has been promise to pay for or to replace borrowed articles, it held repeatedly that a report of viewers should created only a debt to be enforced by an action on the be set aside when a petitioner is one of the view-contract. The relation of the parties was simply that ers. (May Town Road, 4 Y. 479; Radner Road, Plaintiff's security for her 5 B. 612.) If such a defect in a report of viewers should escape notice when the report came up regularly for confirmation, the Court would, whenever its attention was called to it, set aside the order of confirmation, unless the money had been actually spent and expenditures made in good faith in pursuance of it. So, in the case under consideration, the defect escaped the attention of the Court when the report of the grand jury came up for confirmation, but it was discovered and attention called to it before the erection of the bridge, and the Court was clearly within the rule when the order was made striking off the approval of the Court. We have considered this question from the standpoint of the plaintiff in error, viz: that the order of approval is to be treated as a judgment in determining the power of the Court over it; but we by no means wish to be understood as affirming that doctrine. It may well be doubted whether orders of approval and confirmation made in the routine work of the Sessions, without notice to the parties to be affected thereby, ought to be regarded as having the same degree of solemnity as judgments regularly entered after notice or on warrant of attorney. The point is not necessarily raised in this case, and we do not decide it. A sufficient reason appeared upon the record to justify the action of the Court complained of, and for that reason the order of the Quarter Sessions is affirmed. Opinion by WILLIAMS, J. TRUNKEY and STERRETT, JJ., absent. Jan. 88, 233. The facts are sufficiently set forth in the opinion of the Supreme Court, infra. At the trial, BIDDLE, J., entered a nonsuit against plaintiff and afterward a rule to take off the same was discharged. Whereupon the plaintiff took this writ, assigning for error the entering of the non suit and the refusal to take it off. John G. Johnson and George Junkin (Edward P. Allinson with them), for plaintiff in error. The stocks and bonds, to recover which trover was brought, belonged to the plaintiff, but the Court denied such conversion as would sustain trover. The motion for the nonsuit having admitted all the facts which the jury might have fairly inferred from the testimony, it was error for the Court to refuse to submit to the jury the evidence of conversion, however slight. Maynes v. Atwater, 88 Pa. 496. There was evidence from which the jury must have found property in the plaintiff, an agreement on part of defendant to return the stock, a demand for its return, and a sale of stock without March 27, 1888. notice to plaintiff, any one of which would have been sufficient to sustain trover. Borland v. Stokes. Trover_When action lies-Evidence-Nonsuit. In order to entitle a plaintiff to recover in trover the value of certain securities she must show a wrongful taking of them, a wrongful appropriation of them, or a wrongful detention of them from the owner. If the plaintiff's evidence shows that she put the securities in defendant's possession for the purpose of assisting him in business or to be converted into money for her own use, and defendant promised to replace the securities so that the plaintiff's investments should continue substantially as they were, this is Cooper v. Chitty, 1 Smith Lead. Cas. 490. Arthur v. Sylvester, 105 Pa. 496. Plaintiff may maintain trover even when the bailee sets up a lien upon the property for expenses incurred. Singer M'f'g Co. v. King, 14 R. I. 511. It was the duty of defendant to furnish a |