Strock v. Commonwealth ex rel. Zeigler

1. The Act of February 26th 1872, relating to the administration of justice in Cumberland county, provides that before judgment is taken, for want of an affidavit of defence in an action, brought on an instrument for the payment of money, the plaintiff must file with his declaration a copy of the instrument of writing on which the action is founded. The bond pf the committee of a lunatic was conditioned that the committee “shall and do well and faithfully execute and perform, all and singular, the duties appertaining to said trust, and duly account according to law for all property and funds that may come into his hands.” In a suit upon the bond, the court entered-judgment for want of an affidavit of defence, under the terms of the above act. Held, that this was error, as the bond was not an instrument for the payment of money within the meaning of said act. 2. The plaintiff did not file with his declaration an affidavit, “stating.the amount he verily believes to be due,” or file with his praecipe a reference to the place where the bond could be found, as required :by rules of the court. Held, that without compliance with these requirements of the rules of the court, the judgment was erroneously entered.

Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 96. Debt by the ■ Commonwealth *to the use of Philip Zeigler, committee of David Bife, a lunatic, against George Strock, co-obligor with Moses Bricker, in a joint and several bond, conditioned for the faithful performance by Bricker of the duties of committee of said lunatic. The condition of the bond is recited in the opinion of this court. The narr., in the usual form, declares that “ George Strock, together with Moses Bricker, on the 27th August 1862, by their writing obligatory, with their seal sealed and filed in the office of the prothonotary of the Court of Common Pleas in and for the county of Cumberland, which said writing obligatory is herewith produced and exhibited to the court, and is of the tenor and effect following, to wit: “Know all men,” &c. Then follows a bond in the usual form for $5000, conditioned for the faithful performance by Bricker of “ all and singular the duties relating to” his trust as committee of David Bife, a lunatic. Then follow recitals of proceedings, and averments of fact to show that Bricker was unfaithful; that he was dismissed; that Philip Zeigler was appointed in his place; that an account had been previously filed, which on final settlement showed a balance in the hands of Bricker, as committee, of $3932.71; that he was ordered to pay, and did not pay the said sum, “nor any part thereof, although often requested,” &c., whereby the said bond “became forfeited,” &c., concluding, in the usual form, with the averment of demand on Strock, and his refusal; and the whole signed by plaintiff’s attorney. Buies of court in Cumberland county provided, inter alia, as follows: § 14. In actions on recognisances, judgments, mortgages, liens of mechanics and material men, municipal claims, transcripts from the Orphans’ Court, policies of insurance, book accounts, bonds, bills, notes and other instruments of writing for the payment of money, * * * if the plaintiff shall, ten days before the return day of the writ, with his declaration or statement, when necessary, * * * file an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, * * * he shall be entitled to judgment, &c. § 15. In lieu of a copy of the instrument required by the preceding rule to be filed by the plaintiff, when the action is upon a record of this court, or upon a mortgage, mechanic’s lien, or recognisance in the Orphans’ Court, Oyer and Terminer or Quarter Sessions, it shall be sufficient if the plaintiff file, with his praecipe or otherwise a reference to the place where such record or other instrument may be readily found by the defendant, should he desire an inspection of the same. In any such case plaintiff’s affidavit is not required. No affidavit was attached to the declaration stating the amount which the plaintiff really believed to be due, was filed as required by this rule, nor was any reference made to the place where the bond could be found. No copy of the bond was filed, but it was set forth as an exact copy in the declaration and at the argument of the rule, the bond was produced to prove that the recitals were copied literally from it. The Act of Assembly of February 26th 1872, “relating to the administration of justice in Cumberland county:” Purd. Dig. 1165, Pamph. L. 6, provides that in all actions to be brought in the Court of Common Pleas, on bills, •notes, bonds and other instruments of writing for the payment of money, * * * before judgment shall be taken for want of an affidavit of defence, the plaintiff must file “with his statement or declaration * * * a copy of the instrument of writing,” &c. The court, Herman, P. J., entered judgment for the plaintiff, for want of an affidavit of defence. A rule was afterwards taken, to strike off this judgment because entered improvidently, which the court discharged in an opinion, saying: “ It appears that there is set forth in the declaration in this case an exact copy of the instrument of writing sued on, and which was signed by Moses Bricker and the defendant, George Strock. This the plaintiff verified on the argument by producing the bond itself on which the action is founded. It is true, that it is made a part of the declaration, and is set forth as being, in ‘ tenor and effect, following, to wit: ’ But then follows an exact copy of the bond, which it is declared was signed and sealed by Moses Bricker and George Strock, the defendant. Their signatures are not copied to the copied writing, but then it is so clearly stated that they did sign and seal the bond, that the omission to copy them is immaterial. I do not see how the defendant, after reading the declaration, could have suspected that it did not contain an exact copy of the instrument of writing which he had executed with Moses Bricker, or had any doubt in his mind as to the identical instrument of writing upon which the action was founded. I think the plaintiff had done everything that was necessary under our affidavit of defence law to impose upon the defendant the duty of'filing an affidavit of defence, and the defendant having failed to file such an affidavit on or before the second Saturday succeeding the return-day of the writ, was in default, and the plaintiff was entitled to his judgment.” The defendant took this writ, and assigned for error the discharge of the rule.