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.
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-
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
SALES, 7-9, 15, 41, 45, 86-93, 280-283.
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.
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.
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.
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.
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,
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.
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.
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.
325. Recovery for injury to feelings and mental sufferings are recoverable as gen- eral damages. When special damages are TURNPIKES.
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