Strock v. Commonwealth ex rel. Zeigler

90 Pa. 272, 1879 Pa. LEXIS 243

• Court: Supreme Court of Pennsylvania
• Decided: May 26, 1879
• Status: Published

Opinion

Mr. Justice Trunkbv

delivered the opinion of the court,

The condition of the bond is that Moses Bricker, committee of a lunatic, “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.” This demands much more than receiving and paying over money. Neglect and waste of the lunatic’s estate, excessive expenditures for his support, refusal to surrender possession of his lands and goods when lawfully required, as well as embezzlement of his funds, are violations of the duties of the trust. He is liable to be charged with all damages which directly result from his breaches of the condition. The penalty "limits the amount of recovery in an action on the • bond, but is no measure of the sum which may be decreed against him in the settlement of his accounts; that may be more or less than the penal sum. This bond presents as little appearance of a writing for the payment of money, as does the bond or recognisance of a sheriff. It is unlike any of the cases which have been held to authorize judgment- in default of affidavit of defence, under the statutes, cited by defendant in error. In Harres v. Commonwealth, 11 Casey 416, judgment was entered in the Quarter Sessions under a rule of court which expressly and singly related to forfeited recognisances. A recognisance conditioned for appearance to answer a criminal charge, is in a sum for payment of which, the parties are fixed upon forfeiture, and it matters not, as respects the nature of the obligation, that for equitable cause, it may be remitted in whole or part by a statutory proceeding. The case of Montayne v. Carey, 1 W. N. C. 311, is where Carey agreed in writing to pay the amount which Montayne might recover in his action against Wheat — a promise to pay money — and averments were competent to show the recovery and for how much. So in Bank v. Thayer, 2 W. & S. 443, the notes entitled the plaintiff to recover the sums therein named with simple interest, and averment of facts was admissible to show a statutory right to interest at 12 per centum. The test is, whether the agreement is for payment of money, if so, averments dehors the writing may be made to show it has become due. But if the obligation be for faithful performance of duties as a trustee, or as an officer, or to deliver goods, or render services, it is not within the statute. The plaintiff may have a complete right to recover judgment for damages; that is not the question — it is, does the statute authorize judgment by default? His case will not be brought within the statute or rule, when suit is on the original obligation, if the amount of damages has been determined by agreement or otherwise. To illustrate, a written contract is made for sale of a horse, for $100; if delivered accordingly, the seller, in an action for the price, may file a copy of the instrument, aver his performance and have judgment in default; but if he refused to.deliver the horse, and the buyer brought suit on the contract, he could not by averments, bring his case within the statute, even if the damages were agreed upon. We are of opinion that the bond in suit is not for “payment of money” in the sense of the Act of February 26th 1872, or the rule of court. The action is on the bond, not .upon the decree of the court.

If it be conceded that a copy of the bond was properly filed, and the bond within the act, judgment was erroneously entered. The plaintiff failed to file an affidavit stating the amount he verily believed to be due. The rule of court, directing that, is most salutary and fit to be observed. To say the affidavit was unnecessary, because the action is upon a record, is to run against another rule, which directs; with the praecipe or otherwise, a reference to the place where such record may be readily found, which reference was not filed: Gottman v. Shoemaker, 5 Norris 81; Brennan’s Estate, 15 P. F. Smith 16.

A perfect declaration was filed, and an alleged copy of the bond forms an essential part. The point was pressed that this fails to meet the requirements of the statute and rule, because the signatures and seals are omitted, though the names are stated in the pleadings; the direction to file with, does not mean to bury in the verbiage of a declaration; and in the body is not with it, in the intendment of the statute. Our rulings upon other points decide the case, and remark upon this would be a mere dictum.

Judgment reversed, and a procedendo awarded.

Mercur, J., dissents.