Plaintiff in her bill alleges in substance that she is the lawful wife of Eli P. Leonard, one of the defendants; that her said husband willfully and without probable cause deserted her about July 17, 1'922; that her said husband is now a resident of the State of California; that from the time of said desertion he has refused and neglected to support plaintiff; that the husband defendant has a mortgage on property in this county (this county being plaintiff’s residence), which he has for the purposes of collection assigned to W. D. Allison, the other defendant, as agent for him, the said Eli P. Leonard. Plaintiff by her bill seeks a decree directing a seizure of the said property of her husband in order that it may be applied to her support, agreeable to the provisions of the Act of May 23, 1907, P. L. 227, and its amendment.
On Jan. 27, 1930, counsel for defendants entered a general appearance, and on March 5, 1930, filed a petition, under Equity Rule 29, raising the question of the court’s jurisdiction both over their person and property; and in this petition for rule also incorporated preliminary objections to the sufficiency of the cause of action alleged in plaintiff’s bill, as is authorized by Equity-Rule 48; and praying not only that the service- on them be set aside, but also that plaintiff’s bill be dismissed.
Any possible defect" which might have existed in the service upon defendants has been cured not only by the entry for them by their counsel of a general appearance (Sherer v. Bank, 33 Pa. 134; Schober v. Mather, 49 Pa. 21; Brinton v. Hogue, 172 Pa. 366, 368; Bergman v. Straus, 264 Pa. 439, 442), but as well by the filing to plaintiff’s bill what in substance, under the old practice, constituted a general demurrer to plaintiff’s cause of action: Vandersloot v. P. W. & P. Co., 259 Pa. 99, 105.
Defendants’ main contention is that the Act of May 23, 1907, P. L. 227, as amended by the Act of July 21, 1913, P. L. 867, does not authorize the seizure of a husband’s real and personal property in desertion and nonsupport cases, except where the whereabouts of the defendant are unknown, and that, as it affirmatively appears by plaintiff’s bill that the whereabouts of defendant husband are known, he being a resident of the State of California, the court, under the act, has no jurisdiction over the subject-matter involved.
Section 2 of the act, as amended, provides that “Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife, without reasonable cause, or whose whereabouts are unknown, and, being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife, proceedings may be had against any property ... of said husband . . . ; and service upon the defendant shall be made in the manner provided in the Act of General Assembly . . . , approved the sixth day of April, 1859.” [P. L. 387.] (The act providing for service upon nonresidents.)
Defendants contend that the word “or” as used in this enactment must be construed as “and,” that a proceeding under this act only lies where a husband has deserted his wife and his whereabouts are unknown. “Or” will be construed as “and” only when it appears from the context of the statute that the legislative intention can only be given effect by so construing it: Steinruck’s Insolvency, 225 Pa. 461, 464; City of Butler v. Telephone Co., 93 Pa. Superior Ct. 533, 540; P. & L. Dig. of D., volume 20, column 35132.
The Act of April 13, 1867, P. L. 78, was passed by our legislature to compel husbands and fathers, by a quasi-criminal proceeding, to discharge their common law duty of supporting their wives and children. This act provided *37for relief by prosecution, whenever “ any husband . . . has or hereafter shall separate himself from his wife .... without reasonable cause, or shall neglect to maintain his wife . . .” It will be observed that under this Act of April 13, 1867, there arose two classes of cases, one in which the husband separates himself from his wife, deserting her, and the other class where the husband neglects to maintain his wife, although there has been no desertion in a legal sense: Carey v. Carey, 25 Pa. Superior Ct. 223.
The Act of May 23, 1907, which in substance is supplemental to the Act of 1867, provides for additional remedies for the first mentioned class covered by the latter act, while the amendatory Act of July 21, 1913, extended the scope of the Act of 1907 so as to bring within its provisions to a great extent the second group of these eases. This, in our opinion, is the clear purpose and intention of the Act of 1913. Certainly the legislature did not intend to give the remedy provided by this statute in cases where the whereabouts of the husband were unknown, and to withhold it merely because his residence in some foreign state was known, leaving the wife in the latter case without any remedy under the act; and for no logical reason.
The fact that this statute provides that service upon the defendant “shall” be made in the manner provided by the Act of 1859 is not inconsistent with the conclusion here reached, for the word “shall,” when used by the legislature to a court, is usually a grant of authority and means “may,” and even where intended to be mandatory is subject to the necessary limitation that there exists a proper occasion for the exercise of such power: Becker v. L. & M. St. Ry. Co., 188 Pa. 484, 495, 496; Anderson’s Appeal, 215 Pa. 119, 122.
In Duncan v. Duncan (No. 1), 265 Pa. 464, and Duncan v. Duncan (No. 2), 265 Pa. 471, the fact that the court had jurisdiction, where it appeared that the whereabouts of the defendant were not unknown but that he was a resident of the State of California, was not even questioned.
Plaintiff’s bill sets forth a good cause of action: Duncan v. Duncan, supra. The staying of foreclosure proceedings is but incidental to plaintiff’s real cause of action, the procurement of support. Desertion and nonsupport is a continuing offense; it cannot be barred by the statute of limitations: Com. v. Kerbey, 8 Dist. R. 671; Directors of the Poor of Delaware County v. Mercer, 2 Clark, 303. And equity follows the law.
And now, April 28, 1930, defendants’ rule is discharged, defendants’ preliminary objections to plaintiff’s bill are dismissed, and defendants are given ten days within which to answer, under penalty, upon failure so to do, of having the bill taken pro confesso.