We then have a judgment taken by ages is vague, uncertain and indefinite. HELD, default "subject to any order of Court that the demurrer must be sustained. for opening, setting aside or taking off the same."

Practice Demurrer and Affidavit of De- the plaintiff or his attorney and in the fence-Mental Anguish.

hardly be contended that according to the of contract could not be compensated in rules of pleading it could ever have been an action of assumpit at common law, intended that all these defences could be nor otherwise than under a code such as set up in a combination plea. Such a that of California. proceeding would be an utter departure from the rules of orderly pleading.

This demurrer raises two questions. First. That the claim for damages is vague, uncertain and indefinite. Second. That the form of action is improper, for the reason that the damages sought to be recovered can not be recovered in an action of assumpsit.

The second cause may be dismissed

In view of these authorities, the plaintiff on the trial of the case would not be entitled to prove his alleged chagrin as the basis for the assessment of damagas. The statement is, therefore, in this particular demurrable.

The demurrer is sustained for the first cause assigned and the plaintiff has leave to amend his statement within thirty days.

Stoner v. Shorter:

with little comment. The action is for the breach of a contract, and the damages are averred as resulting from the brach Justice of the Peace-Jurisdiction—Title to of the same. Necessarily, therefore, the action is properly brought in assumpsit.

Land.

An action was brought before a Justice of the Peace to recover possession of premises alleged to be held by defendant under a lease from the plaintiff. At the trial the defendant filed an affidavit that the title to the land would come The law pre-into question. The Justice heard evidence as to the question of title and found for the plaintiff. On appeal the Justice's transcript was treated as a declaration. The affidavit of plaintiff covered a lease for the term of one year or longer, and the transcript does not show the term for which the demise was made. On demurrer, judgment was given for the defendant.

The term "one year or longer" is not a demise from year to year, but is consistent with a term for life or under a perpetual lease, of which leases the Justice has no jurisdiction.

As to the first cause of demurrer, it may be said that the allegation of damages is not specific, but from this it does not follow that it is bad. sumes damages, indefinite though they may be, from the violation of a legal con tract. Such damages are called nominal damages; 5th Am. & En. E. L. 2, and this rule is applied to all actions whether ex-contracto or ex delicto, Ibid 4; Smith v. Whiting, 100 Mass. 122. But the liability for damages for the breach of contract are less extensive than for those involving only such consequences as are the direct result of the breach and are within the contemplation of the parties at the time of the formation of the contract, Am. & Eng. E. L. 13 The inconvenience suffered is an element for which damages may be assessed; 5th Am. & Eng. E. L. 14th note, but compensation for actual loss is the general rule in an action July 11, 1904. STEWART, J.-This is for breach of a contract. No allowance an action under the Act of April 3, 1830, is made for the mental suffering of the P. & L. Dig. 2655, pl. 34, begun before party who complains of the non-perform- a Justice of the Peace to recover the posance of his contract; Sedgwick on Meas- session of premises alleged to be held by ure of Damages, 6th Ed. 249. In Jones the defendant under a lease from the v. Steamship Cartes, 17 California, cited plaintiff.

in Sedgwick supra on page 246, the

title to land would come in question, would not The affidavit of defendant, averring that the oust the Justice's jurisdiction.

Demurrer.

1. Edgar Small for demurrer.
Ziegler & Son, contra.

At the trial, the defendant filed an affiplaintiff was allowed to recover damages davit that the title to the land would for distress of mind resulting from breach come in question and attempted thereby of contract (or other duty as stated in to raise the question of jurisdiction. The the case although it was a contractual Justice heard evidence as to the question duty,) but this was on account of the of title and decided against the defendant code of California, under which all and gave judgment of ouster against him. breaches of contract and duty or wrong The defendant then appealed. The Jusare redressed by one and the same form tice's transcript was treated as a declaraof action. This case recognizes that tion and to this the defendant demurred mental suffering occasioned by a breach upon twn grounds.

First. Because the transcript does not First. That the libel alleges two sepashow that the Justice had jurisdiction, rate, distinct and contradictory grounds the term for which the premtses had been for the divorce, namely: wilful and mademised not being set out in the record. licious desertion for more than two years, The affidavit filed by the plaintiff avers and cruel and barbarous treatment ren"that she leased the premises *** for dering the libellant's condition intolerathe term of one year or longer." The ble and her life burdensome, thereby transcript states the cause of action "to compelling her to withdraw from his recover possession of the premises for house and family.

non-payment of rent under the Act of These causes may seem to be contraApril 3, 1830" and "that the defendant dictory. Nevertheless, both or either is indebted to her in the sum of $52.00 are grounds for divorce if proven. The for rent reserved." So that neither the second section of the Act of March 13, affidavit or the transcript show the term 1815, 6 Smith's Laws 286, 1 P. &. L. for which the demise was made. The Dig. Column 1640 pl. 17, prescribing the term "one year or longer" is indefinite. contents of a libel in divorce and the It is not a demise from year to year, but method of procedure, provides that "the is consistent with a term for life or under libellant may exhibit his or her petition a perpetual lease, of which leases the Jus- *** setting forth therein particularly tice has no jurisdiction under the Act; and specially the causes of his or her Trimbath v. Patterson, 76 Pa. 277; in complaint." This recognizes the right this case the whole question is squarely to assign more than a single cause in the decided in favar of the defendant's con- same libel. I have found no case which tention. decides that this is not the correct prac. tice. Besides it is very easy to imagine the existence of more than one of the statutory causes of libel. The injured party when obliged to come into Court to seek a legal discharge from the marriage contract ought to be allowed to assign in a single libel as many of the statutory causes as he or she may be able to prove, and not be obliged to establish them in separate proceedings.

Second. As to the second cause of demurrer. It was held in Essler v. Johnson, that an affidavit of the defendant averring that the title to land would come in question does not avail the defendant to oust the Justlce's jurisdiction in a proceeding under the Act of April 3, 1830; Essler v. Johnson, 25 Pa. 350. This cause of demurrer must be overruled.

Judgment is given on the demurrer on the first cause of demurrer assigned in favor of the defendant and against the plaintiff with costs of suit.

The first cause of demurrer is, therefore, overruled.

Second. The second cause of demurrer is the pendency of a prior action for divorce upon the ground of cruel and barbarous treatment begun by subpoena to No. 38, November Term, 1892, in the Court of Common Pleas of Lancaster Co,. Pa. A copy of the petition in that suit is filed with the demurrer and sustains the allegation. A party is not entitled to maintain two separate suits for the same cause of action against the same defendant at the same time; Harris v. Harris, 1 Philada. 442; Murphy v. Murphy, 8 Philada. 357.

The demurrer, therefore, as to the second cause is sustained, with leave to the libellant to discontinue the former suit now as of a date preceding the filing of the petition in this case; all proceed. ings in this suit to be stayed until a certificate shall be filed showing a discontinuance of the prior suit.

Work Legal Record.

VOL. XVIII.

SEPTEMBER, 1904.

supreme or superior body of the order in the State, and that it has authority to organize, charter and supervise all subNo. 3. ordinate camps of the order in the State of Pennsylvania. That the district president has authority to to collect all the property and effects of a disbanded camp. That the defendants were members of a subordinate Camp of said Pennsylvania Secret Societies-State Bodies-Disband- State Camp, duly chartered in according.

COMMON PLEAS.

P. O. S. of A. v. Bortner et al.

ance with the provisions of the constitution of said Pennsylvania State Camp Patriotic Order Sons of America, and located at Shrewsbury, County of York and State of Pennsylvania, and was known as "Washington Camp, No. 162."

Plaintiff's bill avered their incorporation and existence as the parent body of their order in the State of Pennsylvania; the authority to charter, and the chartering of the defendants as a subordinate camp of the order; the accumulation by the defendants of a sum amounting to over $1500 which was held in trust by tham for the uses of the order; the appropriation by That from dues, assessments and fines the defendants of over $1300 of said amount to said Camp No. 162 had accumulated the their own use and the disbanding of the subordinate camp and the turning over to the plaintiffs sum of over fifteen hundred dollars bethe paraphernalia and property of the camp. sides other property and paraphernalia, It prayed for an order on the defendants to pay and that it was held in trust by said subover to the plaintiffs the sums received. De- ordinate Camp for the uses and purposes fendants demurred, alleging want of jurisdiction and failure to show any grounds for relief. of said Patriotic Order Sons of America,

HELD, that the demurrer must be sustained.

The charter of the State Camp does not provide that the funds collected by a subordinate camp are to be held in trust for the State Camp, and as the charter and by-laws of the subordinate camp were not set out in the bill there is nothing to show that the latter had no right to make the appropriation which it did of so much of its funds.

and not for their individual use.

That the defendants on August 7th, 1902, unlawfully, wickedly and fraudu1-ntly conspired to pervert said trust funds and convert the same to their individual use, and that in pursuance of said conspiracy on said date, they passed the following resolution: "On motion, Plaintiff having been incorporated by the Act that an appropriation of $50 00 be grantof the Legislature, is not such an "unincorpor-ed to each and every member of the Camp ated association" as is contemplated by the Act of June 20, 1883, P. L. 132.

Under the Act of February 27, 1867, which provides that the corporation consists of such persons who are now members or shall hereafter be admitted as such," and the constitution of the corporation, authorizing the State Executive Committee to grant a charter for a new camp, the subordinate camp became a part of the originally incorporated camp and is not an unincorporated association.

Demurrer to Bill.

J. R. Strawbridge and Niles & Neff for demurrer.

Wm. I. Swoope, E. W. Spangler and

N. M. Wanner, contra.

July 11, 1904. STEWART, J.-The bill avers that Charies H. Stees and others are the officers and executive committee of a certain corporation called the "Pennsylvania State Camp Patriotic Order of the Sons of America." That said corporation was organized by an Act of the Legislature and an amendment thereto set out in the bill. That it is the parent,

in good standing, to be apportioned according to the amount of dues paid in advance or arrears." That in pursuance thereof they did divide among twenty-six of themselves the sum of over $1300.

That on July 5th, 1903, the said Washington Camp, No. 162, disbanded and surrendered to the State Camp its charter, which surrender was accepted in due form by the authorities and said Washington Camp paid over to the said district president, C. H. Stein, the sum of $146.06, and also turned over to said district president all their paraphernalia, books and effects, except the said sum of $1300 so distributed.

The prayers for relief are: That the funds in the custody of said twenty-six defendants be decreed to be trust funds. That the defendants be decreed to pay them over.

To this the defendants demur and assign as grounds of demurrer want of juris

diction, and that complainants have not new Camp" This then is the authority shown that they are entitled to the relief to institute a new camp, which, accordprayed for. ing to my view of the law thereupon becomes a part of the originally incorporated camp and is not an unincorporated association.

A careful reading of the bill fails to show any facts upon which the Court can decree that the funds distributed were

Frantz v. May.

held in trust for the State Camp. The For the reasons given, the demurrer is charter and by-laws of Washington Camp sustained and the bill is dismissed at the have not been set out in the bill and no- cost of the complainants.* thing shown by the charter of the State Camp provides that funds collected by a subordinate camp are to be held in trust for the State Camp, nor that the local camp had no right to make just the ap Judgment-Opening of Payment. propriation which it did of so much of its Under a petition to open a judgment, the funds. The bill charges fraud and con- evidence of the defendant, his wife and his son, spiracy in general terms but it does not was that the judgment note was paid, giving disclose how the acts alleged to be fraud-time, place, circumstances and kind of money. Opposed to this was the uncorroborated oath of ulent actually were so. Something must the plaintiff. HELD, that judgment will be be shown which limited the power and opened and an issue directed. authority of the local camp over its funds, and this the bill does not disclose. The relations between the superior and inferior camps are not alleged in the bill, nor how the latter were responsible to the former beyond the fact that the former created the latter, but with what rights and duties it does not appear.

Petition to open judgment and let the defendant into a defence.

J. R. Strawbridge for petition.
E. D. Bentzel, contra.

July 11th, 1904. STEWART, J.-Two reasons are assigned for this proceeding:

First. That the note upon which the judgment was entered was signed and delivered on Sunday.

Second. That the note upon which the judgment was entered has been paid.

The Act of June 20th, 1883, P L. 132, Sec. 1, P. & L. Dig. 2189, pl. 9, has been appealed to in support of this bill and as investing a Court of Equity with jurisdiction, and also as declaring such funds held by a subordinate lodge trust funds, Three witnesses, the defendant, his but that Act does not apply to the facts wife and his son, all testified to the payset out in this bill. That Act applies to ment of the money in satisfaction of the unincorporated associations for benevonote. They each give the time, place lent, charitable or beneficial purposes. and circumstances of the payment and There is no averment in this bill that the state the kind of money in which it was local camp is a benevolent, charitable or paid. They also each testify that the beneficial association, or organized for plaintiff said he did not have the note such purpose. Its purposes are not stat- with him at the time he received the ed at all. Besides, it may be a very nice question whether the Act applies inas-money, but he would either send the note or destroy it. This was in May, 1895. much as it relates to unincorporated associations. As stated before, the Pennsyl- The plaintiff denies the payment but is vania State Camp Patriotic Order Sons uncorroborated. The only contradiction of America is itself incorporated by Act of the defendant's story does not go diof Legislature. "The corporation shall rectly to the question of payment but consist of such persons who are now tends rather to affect the credibility of the members or shall hereafter be admitted defendant's wife and possibly the son. If as such agreeable to the by-laws of said camp." Act 27 of February 1867, Art. II, Sec. 1 of the constitution of the corporation provides: "On written application of twenty persons possessing the necessary qualifications, the State Executive Committee may grant a charter for a

the case were submitted to a jury and they found for the defendant, I would feel that it was sufficiently sustained by the evidence.

*A subsequent motion to amend the bill and insert the averments and matter mentioned in the Court's opinion, was refused.