Swift v. Allegheny Building & Loan Ass'n

Supreme Court of Pennsylvania

Swift v. Allegheny Building & Loan Ass'n

82 Pa. 142, 1876 Pa. LEXIS 205

DecidedMay 29, 1876

StatusPublished

This text of 82 Pa. 142 (Swift v. Allegheny Building & Loan Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swift v. Allegheny Building & Loan Ass'n, 82 Pa. 142, 1876 Pa. LEXIS 205 (Pa. 1876).

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Opinion

Mr. Justice Sharswood

delivered the opinion of the court, “May 29th 1876.

The scire facias recites that the mortgage was to secure a bond conditioned for the payment of $600, “with interest thereon payable on the third Friday of each and every month thereafter, together with the monthly dues on three shares of the capital stock of the association aforesaid, now owned by the said William Swift, and such fines as might be imposed thereon under the constitution and by-laws of the association aforesaid, with a proviso that if. at any time default be made, and six consecutive months are suffered to .elapse without paying up all instalments of interest and monthly dues on said stock, and all fines for non-payment thereof as aforesaid, or any or either of them, then and in such case the credit given on said principal sum shall cease and determine, and the same with the interest, the monthly dues and the fines for the non-payment thereof, shall be taken as due and payable and may be recovered forthwith.” The only averment of a breach of [143]*143this condition is, that “ the said sum of $600, with the interest thereof, as yet remains unpaid.” This averment is the usual one in the case of an ordinary bond with a condition for the payment of money. It is inapplicable to the case of a special condition such as that contained in the bond as recited in this scire facias, and it is insufficient to ground a judgment for want of an affidavit of defence upon. The scire facias takes the place of a declaration, and it should show on its face an immediate cause of action. It does not allege a failure to pay any instalment, and it cannot be inferred that there has been a failure to pay such instalments for six consecutive months. How then does it appear that the principal sum has become immediately recoverable by action ? This it was incumbent on the plaintiffs below to aver and set forth in the scire facias with reasonable certainty. This the averment contained in this scire facias does not do, and the judgment below was therefore erroneous.

Judgment reversed and procedendo awarded.

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Mr. Justice Sharswood

delivered the opinion of the court, “May 29th 1876.

The scire facias recites that the mortgage was to secure a bond conditioned for the payment of $600, “with interest thereon payable on the third Friday of each and every month thereafter, together with the monthly dues on three shares of the capital stock of the association aforesaid, now owned by the said William Swift, and such fines as might be imposed thereon under the constitution and by-laws of the association aforesaid, with a proviso that if. at any time default be made, and six consecutive months are suffered to .elapse without paying up all instalments of interest and monthly dues on said stock, and all fines for non-payment thereof as aforesaid, or any or either of them, then and in such case the credit given on said principal sum shall cease and determine, and the same with the interest, the monthly dues and the fines for the non-payment thereof, shall be taken as due and payable and may be recovered forthwith.” The only averment of a breach of [143]*143this condition is, that “ the said sum of $600, with the interest thereof, as yet remains unpaid.” This averment is the usual one in the case of an ordinary bond with a condition for the payment of money. It is inapplicable to the case of a special condition such as that contained in the bond as recited in this scire facias, and it is insufficient to ground a judgment for want of an affidavit of defence upon. The scire facias takes the place of a declaration, and it should show on its face an immediate cause of action. It does not allege a failure to pay any instalment, and it cannot be inferred that there has been a failure to pay such instalments for six consecutive months. How then does it appear that the principal sum has become immediately recoverable by action ? This it was incumbent on the plaintiffs below to aver and set forth in the scire facias with reasonable certainty. This the averment contained in this scire facias does not do, and the judgment below was therefore erroneous.

Judgment reversed and procedendo awarded.

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Bluebook (online)

82 Pa. 142, 1876 Pa. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swift-v-allegheny-building-loan-assn-pa-1876.