so advanced was without support; but this POTTER, J. The plaintiff in this case endid not make the verdict of the jury con- tered suit against the Order of Americus as jectural as to the cause of the accident. The a corporation. Learning subsequently that jury was specifically instructed that the de- there was no such corporation in existence, fendant was not required to show how the she obtained leave to amend the statement accident occurred, but that that duty rested so as to describe the defendant as "an uninon the plaintiff; yet they were told, if they corporated fraternal beneficial society duly found that it occurred in either of the ways organized under the laws of the commonsuggested by defendant, the plaintiff could wealth of Pennsylvania, and composed of Lee not recover, and, further, that, if plaintiff W. Squier, Edwin E. Robbins, and others." had not shown facts from which they could No process was issued, however, to bring in reasonably find what the cause was, they the persons named as parties to the suit. could not render a verdict on speculation. The amendment was improperly allowed. The appeal raises a single question-should There was no such legal entity as "Order of the motion for judgment non obstante vere- Americus," and therefore no party defendant, dicto on the whole record, have prevailed? no case before the court, and nothing to amend. We are of opinion that the motion was prop- But, even if full effect were given to the effort erly refused. The case was for the jury. to amend, nothing would be really accomplishJudgment affirmed. ed, for it would only substitute for the name of the supposed corporation that of an unincorporated association in its collective capacity and name; and such an association is not recognized as having a legal existence apart from its members, and it could not therefore (223 Pa. 199) MAISCH v. ORDER OF AMERICUS. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. ASSOCIATIONS (8 20*)-ACTION AGAINST PARTIES. be made a party defendant. There is no such entity known to the law as an unincorporated association. The Legislature may undoubtedly impose upon unincorporated as An action will not lie in assumpsit against an unincorporated beneficial association in its collective name for an obligation of the organi-sociations a liability to be sued in a collective zation. [Ed. Note.-For other cases, see Associations, Cent. Dig. 40: Dec. Dig. § 20.*] 2. PARTIES (8 95*)-DEFECTS-AMENDMENT. Where an unincorporated association is sued as a corporation, the statement cannot be amended by alleging that it was an unincorporated fraternal society, organized under the laws of the commonwealth, and composed of A. and others. [Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 162-164; Dec. Dig. § 95.*] 3. ASSOCIATIONS (§ 20*) DEBT-SUIT IN EQUITY. name, but that has not been done in Pennsylvania. Prior to the act of April 28, 1876 (P. L. 53), the members of an unincorporated beneficial association were liable individually for the payment of the obligations of the organization. But since then they have been individually exempt from all such liability, and payment can be enforced only against the treasury of such an organization. A plain remedy remains, however, in the courts of equity, in which suit may be ENFORCEMENT OF brought against some of the members of an The proper method of suing an unincor- unincorporated association, as representing porated beneficial association is by a suit in themselves and all others having the same inequity against some of the members and all oth-terest. In this way, as pointed out in Fletchers having the same interest, and compelling defendants, after judgment, to see that the treasury of the association pays the claim. [Ed. Note. For other cases, see Associations, Cent. Dig. 36; Dec. Dig. § 20.*] Appeal from Court of Common Pleas, Allegheny County. Action by Catherine F. Maisch against the Order of Americus. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Jas. T. Buchanan and George L. McCleary, for appellant. J. A. Langfitt, Karl E. Wilson, and H. W. McIntosh, for appellee. er v. Gawanese Tribe, 9 Pa. Super. Ct. 393, "though the treasury alone shall respond for a debt found to be due, those in control of the treasury may be compelled to see that the treasury meets its liabilities by payment." We agree with counsel for the appellee in their contention that the defendant was not statutory law of Pennsylvania now stands, properly brought into court, and that, as the an unincorporated beneficial association may not be sued in assumpsit in its collective capacity or name for an obligation of the organization. The assignments of error are overruled, and the judgment of the superior court is affirmed. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (29 R. I. 466) HICKEY v. BOOTH. 1. NEW TRIAL (§ 76*)—EXCESSIVE VERDICT. [Ed. Note.-For other cases, see New Trial, TIONS. Where, in an action for assault, the testimony was so conflicting as to warrant the conclusion that one set of witnesses perjured themselves, instructions that the jury must see that perjurers cannot prevail in court, that some one must be punished for perjury, and that the jury must take the case free from any prejudice, except such as they would naturally feel against any one whom they believed to be a falsifier, were erroneous, as leading the jury to base their estimate of damages for plaintiff on passion and prejudice, necessitating a new trial. that the verdict was against the law and the evidence, and the weight thereof, and was against the law, and that the damages awarded by the verdict were excessive. Upon this motion the justice presiding in the superior court on August 22, 1908, decided that "the amount of damages awarded is The actual damage, if grossly excessive. any, suffered by the plaintiff at the hands of the defendant, was slight, and, taking a view of the testimony most favorable to the plaintiff, the court is of the opinion that $350 would be a liberal allowance to the plaintiff. Accordingly the petition of the defendant for a new trial will be granted, unless the plaintiff, on or before September 1st next, in writing, shall remit all of said verdict in excess of said sum of $350." To this decision of the superior court the defendant did not except. The plaintiff did not file his remittitur on or before September 1, 1908, in accordance with the decision of the superior [Ed. Note. For other cases, see New Trial, court, but excepted to said decision and duly Cent. Dig. § 58; Dec. Dig. § 39.*] filed his bill of exception, which is now before this court. Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge. Action by Charles E. Hickey against E. L. Booth. There was an order granting a new trial, after verdict for plaintiff, unless he would remit a part of the verdict, and he brings exceptions. Exceptions overruled, and cause remitted for new trial. William R. Champlin, for plaintiff. ward M. Sullivan, for defendant. In this court the plaintiff urges that said decision of the superior court granting a new trial should be set aside and that the verdict of the jury was not excessive. Upon consideration of the testimony relating to the injury which the plaintiff claims that he suffered as a result of the alleged assault, the court is of the opinion that the damages awarded by the jury are larger than this Ed-court would assess if it was called upon to SWEETLAND, J. This is an action of trespass for assault and battery. At the trial, before the superior court and a jury, the plaintiff testified that in the summer of 1905 he was employed by the defendant as manager of a restaurant conducted by the defendant in the town of New Shoreham; that upon a certain day in August, 1905, in said restaurant, the defendant intentionally threw a large water bottle at the plaintiff: that this water bottle struck the plaintiff upon his back, over the kidneys, causing the plaintiff to fall down, and injuring him severely. In essential particulars, the plaintiff was supported in his testimony as to the assault by the testimony of his brother and one other witness. In her testimony the defendant admitted that she was present at the place and time stated by the plaintiff and his witnesses, but denied in a most positive manner that she had assaulted or struck the plaintiff in any way. The testimony of the defendant was corroborated by that of her daughter. The jury rendered a verdict for the plaintiff for $1,000, the full sum of the ad damnum. The defendant filed her motion for a new trial in the superior court on the grounds fix compensation for these injuries; also the justice who presided in the superior court, who saw the witnesses and had the benefit of that observation in forming his judgment, has declared that the amount of the damages awarded is grossly excessive. In considering the amount of damages, it should not be overlooked, however, that the testi. mony of the plaintiff and his witnesses, which the jury undoubtedly accepted as true, shows a considerable amount of personal injury, of loss of wages, of expenses for medical attendance, and of pain suffered by the plaintiff; also the jury, in the circumstances of this case, in addition to compensatory damages, were justified in awarding punitive or exemplary damages against the defendant. Furthermore, the question of the amount of damages was one within the province of the jury to determine, and the court will not disturb their finding in that regard, unless the amount awarded is so large as to "shock the conscience of the court," or unless the court is satisfied that the jury have been improperly influenced, or have acted from passion, prejudice, or partiality. While the damages awarded appear to be somewhat large, the court cannot say, from an examination of the testimony alone, that they are so large as to shock the conscience For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes of the court. From a consideration of the whole record, however, we are forced to the conclusion that the verdict of the jury in the matter of damages was not based upon a fair consideration of the testimony, but was the result of passion and prejudice, produced in the minds of the jury by the charge of the justice presiding at the trial. ages against her in excess of proper damages for the wrong alleged in the declaration. The justice presiding further instructed the jury: "You are to take the case absolutely free from any prejudice, except such prejudice as you naturally would feel against any one whom you believed to be a falsifier. That is a legitimate prejudice; but I mean no prejudice against the parties as such." The justice might properly have cautioned the jury that, if they found the defendant untruthful in her testimony regarding the assault, that should not be permitted to affect the assessment of damages; but it was error to lead the jury to believe that, if they found the defendant's testimony false they might legitimately be influenced by a prejudice against her in the further consideration of the case. The charge of the justice would naturally lead the jury to base their computation of damages upon passion and prejudice, rather than upon an unbiased consideration of the elements which constitute the true measure of damages in the case. are of the opinion that the effect of these erroneous instructions appears in the verdict, which the justice himself has denominated as grossly excessive in amount. The conflict between the testimony of the witnesses for the plaintiff and that of the witnesses for the defense as to the alleged assault warranted the conclusion that one set of witnesses or the other was willfully trying to deceive the court and jury. This might well excite the indignation of the court. It would be the duty of the justice presiding, if he believed that perjury had been committed before him, to set in motion criminal proceedings, that the guilty persons might be punished in a proper tribunal. But it would be error to lead the jury to believe that the perjury could be punished by them in the case then on trial. The issue in the case was a simple one. If the jury found the defendant not guilty of the assault alleged, the verdict would be the same, whether the jury believed that the plaintiff had committed perjury or was honestly mistaken. If the jury found the defendant guilty, their opinion as to the honesty of the defendant's testimony should have no effect upon the amount of the damages awarded. Punitive damages might properly be given in this case; but they would be awarded as punishment for the assault, not as punishment for per- (Supreme Court of Rhode Island. April 23, jury committed at the trial. The justice presiding at the trial, after commenting at length upon what he terms "most bare-faced perjury going on in this courtroom," instructed the jury: "You have the duty of deciding between the parties litigant in this court. You have that duty, which you have in every case, and in addition to that in this case you have the extraordinary duty which you owe to the state to see to it that no liars, no perjurers, prevail in this court. That is an important duty which you owe; and you have no right to shirk it." From this instruction the jury must have believed it their duty to do more than decide the issues in the case. Again, the justice presiding instructed the jury: "Some one has committed perjury. Some one must be punished for it." The effect of this instruction must have been to inflame the minds of the jury against the party whose testimony they did not believe. This instruction would be particularly vicious if the party whom the jury disbelieved chanced to be the defendant; for as to the plaintiff the jury could not assess damages against him, even if they believed him guilty of perjury, but as to the defendant the only manner in which the jury could punish her for false swearing would be by assessing dam We Plaintiff's exceptions overruled. Case remitted to superior court for a new trial. (29 R. I. 465) FISKE et al. v. VAUGHN. 1909.) MANDAMUS (§ 187*)—APPEAL AND ERROR- Under Court and Practice Act 1905, § 328, authorizing an appeal in any proceeding in, or habeas corpus, an appeal is the statutory methin the nature of, a prerogative writ, except od to review the denial of a petition for mandamus. [Ed. Note. For other cases, see Mandamus, Cent. Dig. 428; Dec. Dig. § 187.*] Exceptions from Superior Court, Kent County; Darius Baker, Judge. Petition for mandamus by George R. Fiske and others against John B. Vaughn. There was a judgment denying the petition, and petitioners except. Dismissed. Samuel W. K. Allen, for petitioners. P. Henry Quinn, for respondent. BLODGETT, J. This is a petition for a writ of mandamus against the respondent, a former town clerk of West Greenwich, to require the respondent to record in the proper record book of said town the proceedings of a financial town meeting of said town, alleged to have been held on December 22, 1906. The petition was denied by the superior court, and the petitioners excepted to such denial, and have brought their exceptions to this court, where the respondent has moved has the burden of satisfying the court of the A complainant, seeking a writ of ne exeat, intention of defendant to depart from the state to avoid the performance of the decree of the court. Cent. Dig. § 9; Dec. Dig. § 7.*] to dismiss the bill of exceptions on the | 4. NE EXEAT ( 7*)-GrounDS-BURDEN OF ground that the petitioners' remedy is by PROOF. appeal, and not by bill of exceptions, and relies upon the provisions of Court and Practice Act 1905, 328, as follows: "Any party aggrieved by a final decree of the superior court in any cause in equity or proceeding following the course of equity may, within thirty days after the entry thereof, and any party aggrieved by a final judgment in any proceeding in, or in the nature of, a prerogative writ, except habeas corpus, may, within five days after entry of such judgment, appeal to the Supreme Court. 5. NE EXEAT (8 8*)-BOND-ISSUANCE-DISCRETION OF COURT. The superior court may, in its discretion, refuse to issue the writ of ne exeat until a satant and conditioned for the payment of costs isfactory bond has been filed, running to defendand damages defendant may sustain from the issuance of the writ. [Ed. Note. For other cases, see Ne Exeat, Cent. Dig. § 10; Dec. Dig. § 8.*] 6. NE EXEAT (§ 12*) — DISCHARGE TION. INJUNC We are of the opinion that the motion to dismiss must be granted. The section in question is a special provision governing "any proceeding in, or in the nature of, a The court, on quashing a writ of ne exeat prerogative writ, except habeas corpus," as improperly issued, should grant an injunction well as equity causes or proceedings follow-restraining defendant from instituting an action ing the course of equity, and it is no more at law to recover damages for his arrest and permissible to prefer a bill of exceptions in imprisonment under the writ, since any inquiry as to the damages may be properly left to the one of these classes of cases than in another. consideration of the same court, sitting in In each of them an appeal is the statutory equity, which issued the writ. method of bringing such case before this court for review. [Ed. Note.-For other cases, see Ne Exeat, Cent. Dig. 14; Dec. Dig. § 12.*] Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Suit by Edward P. Jastram against Amelia B. McAuslan and another. From a decree quashing a writ of ne exeat issued on the petition of complainant, and requiring defendant to give security, complainant appeals. Modified and affirmed. 1. APPEAL AND ERROR (8 445*)-POWERS OF Edwards & Angell (Albert Gerald, of counLOWER COURT-QUASHING NE EXEAT-SE-sel), for appellant. Bassett & Raymond, Irv CURITY. Court and Practice Act 1905, § 331, authorizing the justice of the superior court, who made the decree appealed from, to make orders for the protection of the rights of the parties until the determination of the appeal, does not authorize the justice of the superior court, who quashed a writ of ne exeat, to require defendant to give security to abide the order of the trial court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2205; Dec. Dig. 445.*] 2. NE EXEAT (§ 7*)-Grounds. Under court rule 32 (50 Atl. xv), and independent thereof, the writ of ne exeat will not be granted, except on affidavit verifying the charges contained in the petition and containing allegations of facts satisfactorily evincing an intention of defendant to depart from the state to avoid performance of the decree of court on hearing, or of his threat or declaration of such intention. ing Champlin, and James Harris, for re spondent George R. McAuslan. DUBOIS, C. J. This is the complainant's appeal from the decree of the superior court quashing a writ of ne exeat issued upon the petition of the complainant. The decree reads as follows: "The above-entitled cause came on for hearing upon the petition of the respondent, George R. McAuslan, for the discharge of a writ of ne exeat on which he had been committed to the Providence county jail, and thereupon, upon hearing and arguments of counsel for the parties in interest, it is hereby ordered, adjudged, and decreed that the writ of ne exeat be quashed, and that the said respondent have and recover against the said complainant his costs, to be taxed by the clerk; and it is further ordered, ad3. NE EXEAT (§ 7*)-GROUNDS-EVIDENCE-judged, and decreed that said respondent be SUFFICIENCY. Evidence held insufficient to justify the is-released from custody and from imprisonsuance of the writ of ne exeat, in that there was a failure to show that defendant intended to leave the state to avoid performance of the decree of court, or of his threat or declaration [Ed. Note. For other cases, see Ne Exeat, Cent. Dig. 9; Dec. Dig. § 7.*] of such intention. [Ed. Note.-For other cases, see Ne Exeat, Cent. Dig. 9; Dec. Dig. § 7.*] ment under said writ, upon his giving security satisfactory to this court to appear before said court, when thereunto required, to abide the order of the court, heretofore made and hereafter to be made in this cause." The decision of the superior court, in accordance with which the decree was entered, appears in the following rescript: "Tanner, P. J. This case was heard upon the petition of the respondent, George R. McAuslan, for a writ of habeas corpus to release him from imprisonment in the county jail, and also upon his motion for the discharge of a writ of ne exeat on which he has been committed to the county jail. The writ of habeas corpus was apparently based upon the theory that the sheriff who arrest ed this petitioner on the writ of ne exeat had not made return on the writ, so that this petitioner was legally in the custody of the sheriff, if legally in the custody of anybody, and that he was therefore illegally committed to the county jail. But the sheriff has now made return on the writ of ne exeat, showing that he committed this petitioner to the jail in default of security given. We think, therefore, that so far as the writ of habeas corpus is concerned the petitioner is lawfully in the custody of the county jail, and, the petitioner having been at the hearing remanded to that custody, it is not necessary for the court to make any order on a writ of habeas corpus. "On the motion to discharge the petitioner on the writ of ne exeat, we will consider first the reason urged that the writ was irregularly issued. An examination of the affidavits on which the writ was issued shows that two of them were based wholly upon the information obtained from third parties, whose affidavits are not produced. A third affidavit was to the effect that the affiant had seen a letter, with the name George R. McAuslan on the letter head, signed "George," stating that he did not intend to be in town longer than that day, and was to return to Burlington to attend a big sale which opened there the following Saturday. The affiant does not, however, claim to identify the writing, or to state that it was the writing of this petitioner. The let- | ter was not produced, and no reason given for its not being produced. "The complainant, Edward P. Jastram, in his petition for the writ of ne exeat, states everything upon information only, and swears only to his belief in what he has stated on information. The greatest extent to which any of the authorities appears to go in granting a writ of ne exeat is that it should be isued only, first, upon an affidavit of facts, sworn to from the knowledge of the affiant, and not upon his information, from which facts the court can deduce the intention to leave the state to avoid the court's decree; or, second, upon facts sworn to upon information, accompanied by the positive allegation of the petitioner, based on the information, that there is an intention to leave the state to avoid the decree of the court. It will thus be seen that, if the petitioner mation rather than positive knowledge, he must at least swear positively to the intention of the respondent to leave the state to avoid the decree of the court. Oldham v. Oldham, 7 Ves. 410; Jones v. Alephsin, 16 Ves. 470; Collinson v. 18 Ves. 353; Moore v. Gleaton, 23 Ga. 142; 2 Daniell, Ch. Pr. 1707; Robinson v. Robinson, 21 R. I. 81, 41 Atl. 1009. We think the affidavits were of such a character that they required the petitioner's positive affidavit of the intention of the respondent to leave the state to avoid the decree of the court. Since such positive affidavit is wholly lacking, we think the writ was improperly issued, and should be quashed, with costs to the respondent. "But a consideration of the affidavits filed at the hearing on the merits of the case convinces us that justice requires us to order the respondent to give security to abide the decree of the court. Laying aside the contradictory statements of the affidavits, it appears clearly from the evidence on either side of the case that the respondent left the state shortly after the decree was entered ordering him to pay a large sum of money; that he and his wife have gone to Burlington to run a store there, which may require the absence of the respondent from the state for an indefinite time, long beyond the time fixed for the performance of the decree. We do not think that a respondent who leaves the state in this way can complain if the inference be drawn against him that he intends to do that which his actions indicate he may do, and which he has a strong motive for doing. The denial of the respondent has never been considered sufficient to rebut such an inference from the facts. We think, therefore, that the respondent should give security, in a sum to be fixed upon hearing, to abide the order of the court before being released from custody. Roddan v. Hetherington, 5 Ves. 92; MacDonough v. Gaynor, 18 N. J. Eq. 249; 2 Daniell, Ch. Pr. (6th Am. Ed.) 712, 713.” The complainant's claim of appeal and statement of the reasons thereof reads as follows: "The complainant, being aggrieved by the final decree of the superior court in the aboveentitled cause, entered on the 8th day of March, 1909, granting the motion of the defendant George R. McAuslan to discharge writ of ne exeat, now within 30 days thereafter claims an appeal from said decree to the Supreme Court, and states the following reasons of appeal: (1) Said decree is against the law. (2) Said decree is against the evidence and the weight thereof. (3) Said decree contains no provision enjoining or restraining the defendant George R. McAuslan from making any claim for damages, or from bringing any action or proceeding on account of the issuance of said writ of ne exeat or of the proceedings thereon. (4) The bond required by |