FOREIGN RECORDS.

an affidavit of defense is proper practice, of a book in which he entered the moneys
this Court will be governed by the well received and paid out; but the accountant
established rules of pleading.—Ib.
refused to produce the same. The Auditor
certified that it was a private book of the
witness, and declined to order its produc-
252. In a suit brought upon a judgment tion. Exceptant petitioned the Orphans'
recovered by plaintiff against defendant's Court for an order, to which the account-
testator in a foreign court, if the foreign ant answered that it was his private book,
record of judgment is propertly certified to that it contained no receipts or vouchers
it is conclusive, and need not be accompa-belonging to the estate, nor any items relat-
nied by an affidavit of plaintiff that the ing to the estate which are not in the ac-
record is correct.-Stillwell v. Smith's Exec- count. No replication was filed. HELD, that
utors, 99.
the petition must be dismissed.-Emig's
Estate, 157.

253. A statement containing an affidavit
which has unexplained interlineations is
ground for demurrer.-Ib.

254. A record of a foreign judgment in
which the clerk fails to authenticate any
part of the record but the minutes of the
Court three pages preceding the certificate,
and also fails to legally certify to copies of
papers, is defective, and may be success-
fully demurred to.—Ib.

PRODUCTION OF PAPERS.

260. The Orphans' Court has power to en-
force, by attachment, an order for the pro-
duction of books and papers.—Ib.

261. No replication having been filed to
the answer of the accountant, its statement
must be taken as true.—Ib.

262. In the face of the certificate of the
Auditor in the nature of an interlocutory
report, and the answer of the defendant
that the ledger or book of the respondent is
255. The policy contained the usual cove-to the accounts under investigation by the
a private book not applicable or pertinent
nant in regard to an examination under
oath and production of books and papers at
a place designated by the insurers, but no
such request was made before the trial.
HELD, that in the absence of such request,
failure to produce the books and papers
cannot defeat a recovery at the trial.-
Insurance Company's Appeal, 33.

Auditor, except as to items contained in the
account, the Court has no power to make
an order, to be enforced by attachment, if
necessary, for the production of respond-
ent's private memoranda before the Audi-

tor.-Ib.

STATEMENT.

256. Prior to the trial defendant notified 263. A statement which does not contain
plaintiff to produce upon the trial stock a specific averment of the amount claimed
books and sales books, also bills for goods to be justly due, nor state anything as to
purchased by the plaintiff during 1900 and credits, and the affidavit to which does not
1901. The original bills and invoices were aver the correctness of the copy of the note
destroyed by the fire, and plaintiff produced nor state anything as to credit items, nor
the merchandise account, which gave sim- the amount of damages claimed. is not suff.
ply the amount of the purchases, without cient under the rule, and a demurrer there-
the names of the vendors. The Court be- to will be sustained.-MeMullen v. Welsh et
law (Stewart, J.) ruled that the call had al., 8.
been complied with. HELD, not to have been
error.-Ib.

264. A declaration which sets forth the
sale and delivery by the plaintiff to the de-
fendant, at a given date, of a certain quan-
tity of merchandise, at a specifie·l price,
payable at a fixed time; the performance of

a

certain service upon the defendant's
agreement to pay the expense thereof, with
the date of performance and the expense in-
curred, and the whole amount that the

257. In a suit to forclose a mortgage given
by a corporation in the hands of a receiver,
a creditor will not be allowed an order to
inspect the books of the company before
hearing, where the purpose is not clearly
stated so as to show petitioner's interest,
the information desired, and the purpose.
Where the only purpose is to deny the own
ership of the bonds, for default of payment
of the attached coupons a sale is asked,
the opposing creditor can attain his object
by a subpoena to produce the books at the 265. The omission to lay a venue in the
hearing. Thomas et al. v. Lansdale and Nor-declaration is immaterial.-Ib.
ristown Electric Railway Company, 71.

258. The order asked for was not against
the plaintiffs, owners of the bonds, but
against a co-defendant; and there was no
averment of collusion, or that the bonds
were illegally issued, or that plaintiffs were
not bona fide holders of the requisite
amounts.-Ib.

259. Before an Auditor settling exceptions
to an account, the exceptant called upon
one of the accountants for the production

plaintiff believes that is justly due it from
the defendant, is sufficient in law on which
a summary judgment.-American
M'n'f'g Co.'s Appeal, 19.

to base

266. Even if material, such omission is
cured by defendant's failure to plead --Ih.

267. It is unnecessary to show, in the
declaration, the title of an equitable plain-
tiff, or to indicate his interest otherwise
than by marking the suit to his use. -Ib.

268. Plaintiff's statement averred seizure
and sale of his property in violation of an
agreement, and claimed damages for "great
inconvenience, chagrin and injury" to the
amount of $1,000. Defendant demurred that

the claim for damages is vague, uncertain A judgment affirmed by the Superior Court
and indefinite. HELD, that the_demurrer may be opened by the Court below.-Ib.
must be sustained.-Marshall v. Katz, 26.

269. While inconvenience suffered is an
element for which damages may be as-
sessed, compensation for actual loss is the
general rule in an action for breach of a
contract. The plaintiff would not be en-
titled to prove his alleged chagrin as the
basis for the assessment of damages.—Ib.

270. The statement was demurred to on
the ground that the damages sought to be
recovered could not be recovered in an ac-
tion of assumpsit. HELD, that this cause of
demurrer must be dismissed, as the dam-
ages are averred as resulting from a breach
of contract, and the action is properly
brought in assumpsit.-Ib.

SUMMARY JUDGMENT.

271. Plaintiff entered a rule to plead in
fifteen days or judgment. Defendant en-
tered a rule for security for costs, and the
Court directed "that pending the giving of
such security all proceedings in the case to
be stayed and that the defendant be not re-
quired to plead." Plaintiff paid into Court
$150 as security for the costs, and more
than six months afterward directed the
Prothonotary to enter judgment for the
plaintiff in default of a plea by the defend-
ant. On petition, the Court below (Stew-
art, J.) struck this judgment off. HELD, to
have been error.-American M'n'f'g Co.'s
Appeal, 19.

272. When the rule for security was satis-
fied, the stay of proceedings during its
pendency expired, and the effect of the rule
to plead was restored as fully as if it had
not been suspended.-Ib.

280. The Directors of the Poor and House
of Employment of the County of York, in-
corporated by the Act of 1804, were au-
thorized by the Act of 1850, P. L. 38, "to
sell and convey for such price as to them
may seem most advantageous, such part of
the land belonging to said institution, and
273. Neither a new rule or a reinstate-to execute deeds for the same." The Act
ment of the pending rule was necessary, of April 28, 1887, P. L. 85, authorized the
nor was the defendant entitled to fresh
notice.-Ib.

274. Judgment was taken by default for
want of a plea. The Court ordered the
judgment stricken off, but the Superior
Court reversed the order and the judgment

was re-instated. A motion was then made
in the Court below to open the judgment.
HELD, that the motion will be allowed.-
Doniphan v. S. Morgan Smith Co., 25.

Court of Common Pleas to decree a public
or private sale of any Poor House property,
with. The Directors in 1889 sold a tract of
and repealed all laws inconsistent there-
the Poor House land to the petitioner,
without any proceeding in the Courts. On
petition to confirm the sale presented
fifteen years afterward. HELD, that the sale
will be confirmed.-Northern Central Rail-
way Company's Petition, 177.

281. Under the charter, the Directors had
275. The judgment having been taken on full power and authority not only to sell
Rule 5, which provides that judgments and convey the land in the manner in
taken by default are "subject to any order which they did, but to determine also the
of the Court for opening, setting aside or expediency of selling and the advantage to
taking off the same,' such judgment is the public in making the sale.-Ib.
necessarily, according to the very terms of
the rule, a conditional judgment, and the still have the right to sell, notwithtstand-
282. Quaere, whether the Directors do not
condition is that for cause shown sufficient

to move the Court, it may be opened, set ing the repealing clause in the Act of 1887.

aside or taken off.-Ib.

276. The affidavit of defense showing a
defense sufficient to entitle the defendant
to a jury trial, the judgment will be opened.
-Ib.

—Ib.

283. Under the Act of April 18, 1854, the
Court has power to confirm this sale with
the same effect as if the proceedings had
been originally brought therein.—Ib.

277. The action of the Superior Court in PRISONER, 60.
re-instating the judgment adds nothing to

its character which it did not have before. PROPERTY, 46.

PROSECUTOR, 46.

PROTHONOTARY, 49.

PUBLICATION, 31.

RAILROADS.

LATERAL.

284. A petition for the appointment of
viewers for a lateral railroad is not defec-
tive because it fails to aver the necessity
of such road. The question of necessity is
for the viewers and afterwards for the
Court.-York Valley Lime Co.'s Petition, 129.
285. Allegations that the proposed rail-
road is not such as authorized by law, does
not connect with any public improvement,
and is but a spur to other property of peti-
tioners, will not prevent the appointment of
viewers.-Ib.

286. The fact that the proposed railroad
will interfere with the development of the
exceptants' property is an element in the
question of damages, but will not prevent
the appointment of viewers.—Ib.

287. The evidence in this case is not such
as to convince the Court that the petition
was not presented in good faith.-Ib.

294. An exception to a road report that
"the proceedings of the viewers were irreg-
288. An allegation that the road asked ular" is too general, and will be dismissed.
for cannot be built within the width fixed-Road in Springfield Township, No. 2, 38.
by law will not prevent the appointment of
viewers. If it cannot be so built that will
be the petitioner's misfortune.-Ib.

LOCATION.

295. Without absolute

necessity being
shown by the testimony, the Court should
not and will not approve a report locating
a road taking any part of so important a
farm building as a barn.-Road in Spring-

289. Before the view the petition can be
amended so as to make the elevation of the
proposed road at the point where it crosses
the trolley switch of the exceptants of suf-field Township, No. 2, 38.
ficient elevation to allow the passage of
loaded cars beneath the petitioners' road.-
Ib.

ROAD CROSSING.

or

290. The predecessor in the title of A, the
plaintiff, conveyed land to a railroad com-
pany, predecessor in title to B, the defend-
ant, the deed containing a covenant on the
part of the railroad company "to erect and
maintain a suitable road crossing as pro-
vided by law." The railroad company sub-
sequently built an embankment ten
twelve feet high on the land, dividing the
unsold portion into approximately equal
parts, to one part of which there was no
access except over private property. The
divided portions were subsequently sold to
C, between whom and B an agreement was
entered into and a crossing by means of a
culvert or causeway was built by B, which
remained open for six years, in the mean-
time A acquiring title to the divided por-
tions. B subsequently closed up the culvert
and A brought a bill in equity for a manda-
tory injunction for the restoration of the
crossing. Injunction granted.-Marsh
Lehigh & N. E. R. R. Co., 116.

V.

291. Section 12 of the Act of 19 February,
1849, P. L. 84, applies only where a railroad
company constructs its road on lands taken
in the exercise of the right of eminent
domain.-Ib.

296. The cutting off of a spring from a
house, or portions of a farm from a stream
of water is not ground for setting aside a
report.-Ib.

297. Where the report and the draft
locate a road at a different terminus from
that named in the petition, and are irre-
concilable with each other and the facts,
the report must be set aside.—Ib.

NOTICE.

298. Where notice of the proposed view
was not given to each of the supervisors of
the township through which the road is to
run, the report must be set aside.-Road in
York Township, 139.

299. Notice of the proposed view to only
one of the supervisors of the township is
defective, and the proceedings must be set
aside.-Road in Shrewsbury Township, 139.

OATH.

300. One of the viewers administered the
oath to himself and the other viewers.
HELD, that the report must be set aside.-
Road in York Township, 139.

UTILITY.

301. An exception that the proposed road
is of no public utility will be dismissed.-
Road in Springfield Township, No. 2, 38.

302. An exception that the road is not of
such public utility that the damages should

be paid by the county can only be made by ants of a sum amounting to over $1500
the county authorities.-Ib.

RULES, 271-275.

SALES, 7-9, 15, 41, 45, 86-93, 280-283.

SCHOOL BOARD.

BOARD OF HEALTH.

which was held in trust by them for the
uses of the order; the appropriation by the
defendants of over $1300 of said amount to
their own use and the disbanding of the
subordinate camp and the turning over to
the plaintiffs the paraphernalia and prop-
erty of the camp. It prayed for an order
on the defendants to pay over to the plain-
303. The relator, District Attorney, ap- tiffs the sums received. Defendants de-
plied for a mandamus on respondents, com- murred, alleging want of jurisdiction and
manding them to organize as a Board of failure to show any grounds for relief.
Health and perform the duties imposed on HELD, that the demurrer must be sustained.
them by the Act of April 11, 1899, P. L. 38.-P. O. S. of A. v. Bortner et al., 29.
The return to the writ set forth various pre- 310. The charter of the State Camp does
cautionary measures taken by the individ- not provide that the funds collected by a
ual members of the School Board, and subordinate camp are to be held in trust
averred that as the Act was not manda- for the State Camp, and as the charter and
tory but only directory, the Court had no by-laws of the subordinate camp were not
jurisdiction to grant the mandamus prayed set out in the bill there is nothing to show
for. On demurrer, HELD, that the demurrer that the latter had no right to make the
must be sustained.-Com. ex rel. Wiest v. appropriation which it did of so much of
Conewago School Directors, 125.
its funds.-Ib.

304. The words of the Act are "they shall 311. Plaintiff having been incorporated
have full power and authority." The public by the Act of the Legislature, is not such
health is involved, and therefore the Act is an "unincorporated association" as is con-
mandatory and its enforcement is incum-templated by the Act of June 20, 1883, P. L.
bent on the Court.-Ib.
132.-Ib.

305. Where power is given to public offi-
cers, and the public interests or individual
rights call for its exercise, the language
used, though permissive in form, is in fact
peremptory.—Ib.

312. Under the Act of February 27, 1867,
which provides that the corporation con-
sists "of such persons who are now mem-
bers or shall hereafter be admitted as
such," and the constitution of the corpora-
306. Individual acts, or acts of one or tion, authorizing the State Executive Com-
more members of the School Board; or ad-mittee to grant a charter for a new camp,
vice and persuasions, are not what the law, the subordinate camp became a part of the
applicable in the premises, requires; but originally incorporated camp and is not an
deliberative and rigorous action of the unincorporated association.-Ib.
Board, legally convened for the purpose,
after there making the needful rules and
regulations for the prevention of the spread
of the contagion, as set out in the Act of
Assembly, is imperative.—Ib.

SERVICE, 145, 147-153, 160, 161.

MINOR.

313. In a suit against a minor son who
lives with his father, a summons served by
307. It is necessary, in order to a proper handing a copy to the father at his dweiling
return, to specify fully such action by the house, the son being absent from the State,
respondent as a Board at a regular, con- is a proper service on the minor under Sec.
vened meeting, as required of the School 1, clause (b), Act of July 9, 1901, P. L. 614.
Board under the Act of Assembly imposing-Yerkes et al. v. Stetson, 74.
the duties.-Ib.

RETURN.

308. The more convenient and effective 314. The Sheriff's return was: "served
way for a School Board to proceed in a the within writ upon E. L. Freeman, T. W.
case requiring action, is to organize a local McNeil, A. S. Wooley and George Emery,
Board of Health and proceed in regular and trading and transacting business under the
legal course, doing nothing in the premises name of the Dillsburg Kaolin Company, the
on consultation together not had at a reg-defendants, by handing and leaving with
ularly convened meeting, nor as individ- Henry C. Sheaffer, their agent and for the
uals. All must be done by action of the time being the person in charge of the
Board, assembled according to legal re-
quirements.-Ib.

SEAL, 10-12, 194.

SECRET SOCIETIES.

PARENT BODY.

works and place of business of said com-
pany at said place of business in York
County, Pennsylvania, (on learning that all
of said defendants were then absent and on
failing, after inquiry, to ascertain the pres-
ent place of residence or boarding of any of
them within the County) a true and attest-

309. Plaintiff's bill averred their incor-ed copy thereof for each of them and in-
poration and existence as the parent body forming him at the same time of the con-
of their order in the State of Pennsylvania; tents thereof." HELD, to be defective.-
the authority to charter, and the chartering Sheaffer v. Dillsburg Kaolin Co., 7.
of the defendants as a subordinate camp of 315. The return does not show any "in-
the order; the accumulation by the defend-quiry thereat," that is at the place of busi-

ness, as required by clause E of the Act of not claimed a defendant should be dis-
July 9, 1901, P. L. 614.-Ib.
charged on common bail.-Ib.

SPRING, 296.

316. At the argument of the rule to strike
off the judgment obtained for want of an
appearance, the Sheriff asked leave to STATE, 103-105, 132.
amend his return of the writ. HELD, that
the amendment must be allowed.-Ib.

317. A firm having its regular place of
business in another county of the State and
taking a contract for a single undertaking
within this county, cannot be said to have
established a place of business in this
county within the meaning of the Act of
July 9, 1901, relating to the service of pro-
cess.-Malaney v. Pennock et al., 45.

318. In such a case where the Sheriff's
amended return does not state whether the
service on defendant's superintendent was
made in Allegheny or Philadelphia county,
it is defective.-Ib.

319. A summons must be served by a con-
stable in the manner pointed out by the
Act of 1901, P. L. 614; all other ways are
not in conformity with the law.-Brenner v.
Metzler, 173.

320. Where the return failed to show
that the writ was handed to the defendant
or to an adult member of the defendant's
family at his dwelling house, and failed to
show that an "attested" copy was served,
the service was held to be defective.-Ib.

321. Return of process served under Act
of May 4, 1842, upon the agent or clerk of
defendant should show that such defendant
was engaged in business in the county, or
that he was not in the county at the time
of the issuing of the writ. The sheriff must
show an exact compliance with the terms
of the Act authorizing him to make the
service-Lockhard Adm'x v. Trexler et al., 185.

SETTLEMENT, 4, 139-143.

SHERIFF, 52-56, 124-125, 149-156.
SLANDER.

SPECIAL DAMAGES.

322. The defendant cannot be held to bail
in an action of slander, without proof of
special damages, or that the defendant is
about to leave the State or go out of the
jurisdiction of the Court.-Ripple v. Little,

56.

323. The Act of 1903, P. L. 49, adds a
new element of damage in actions for libel,
viz: “Damages for physical and mental suf-
fering engendered by the injured party or
parties." But this is not special damages
within the meaning of the law, but general.
-Ib.

STATEMENT, 253, 263-270.
STREETS.

VACATING.

326. Where a part of a street has been
vacated under the Act of May 16, 1891, P.
L. 85, owners of property which abuts upon
the street but not upon the part vacated
are entitled to a jury to assess their dam-
ages, if any were sustained by reason of
their property being left in a cul de sac as
to the system of streets in the direction of
the vacated part of the street. The diffi-
culty in defining the limits where the right
to compensation shall end is no valid objec-
tion to the claim of such property owners.
—Nocton v. Borough of Norristown, 105.
SUBPOENA, 51, 145, 147-153, 160.

SUBROGATION, 96-98.
SUMMONS, 212, 313-321.
SUNDAY, 73.

SUPERVISORS, 298.
SURCHARGE, 142-143.
TAX COLLECTOR, 62.
TAXES, 96.

TELEPHONES, 278-279.
TEXT BOOKS, 176.
TITLE, 327-329.
TORT, 1, 2, 176.
TRESPASS, 1, 2.

TRUSTS, 5, 6, 75, 140, 351.

FUNDS.

327. Plaintiff's assignor used trust funds
in the purchase of certain real estate.
Plaintiff, an assignee for the benefit of
creditors, sold the real estate, under an
order of Court for the payment of debts,
and realized sufficient to pay the liens and
the trust fund. The purchaser declined to
accept the deed, alleging that the property
was not discharged from the resulting trust.
HELD, on a case stated, that judgment must
be entered for the plaintiff.-Strayer's
Assignee v. Lauer, 195.

324. Special damages are such as the law 328. What the cestui que trust is entitled
will not infer from the nature of the words to is his money, the trust fund, and if he
themselves. They must, therefore, be es- secures that he is not entitled to the prop-
pecially claimed in the pleadings and evi-erty in which it is invested.-Ib.
dence of them must be given at the trial.- 329. The purchaser receives title to the
real estate free and discharged from the
resulting trust.—Ib.

Ib.

325. Recovery for injury to feelings and
mental sufferings are recoverable as gen-
eral damages. When special damages are TURNPIKES.