7 Pa. Super. 71 | Pa. Super. Ct. | 1898
Opinion by
A judgment for the plaintiff is based on the right of action set forth in the declaration, and cannot be extended beyond it. This is an elementary principle, illustrated in a long line of cases, from Gordon v. Kennedy, 2 Binn. 287, to Acme Co. v. Reed, 181 Pa. 382. If the declaration lacks the essentials of a cause of action, in matters of substance, judgment for want of an affidavit or of a sufficient affidavit of defense will be reversed : Camp v. Bank, 10 Watts, 130; Gould v. Gage, 118 Pa. 559; Acme Co. v. Reed, supra. And such defect will be fatal also in arrest of judgment or on error: Gordon v. Kennedy, supra; Clay v. Irvine, 4 W. & S. 232; Maher v. Ashmead, 30 Pa. 344.
In the present case the plaintiff’s right to judgment must be tested by the cause of action as set forth in the declaration. It is based on the bond of the defendant Middendorf, as collector of taxes, and his default in not accounting for a portion of the
We cannot regard this as the true measure of the obligation imposed on the defendants. The act of 1893 requires the collector to give a bond annually. By plain implication, this limits the liability on each bond to the taxes of the current year. There is nothing in the recital that the collector had been duly elected for three years to extend this liability beyond the year for which the bond was given. It had no greater effect than if it merely recited that he had been duly elected, since the law fixed his term at three years; it would be equally appropriate in a bond for the last year of the term. The condition does not require him to account for the taxes collected' during those three years. Had it done this, in express terms, the bond would undoubtedly have been good to that extent as a voluntary obligation, thougli beyond the requirements-of the law: Walters’ Appeal, 10 W. N. C. 146; Castor’s Appeal, 2 Penny. 337. The condition, however, followed the statute, and as a renewal of the bond each year is required by law, it must be construed as embracing only the
It is obvious, therefore, that as to the taxes of 1895 the declaration sets forth no cause of action, and that the judgment, so far as it embraces those taxes, was erroneous. The plaintiff was entitled only to a judgment for the breach of the condition of the bond for the taxes of 1894. As to this the declaration avers a failure to account for $157.40, and for this amount, with interest from January 20,1895, the judgment should have been entered.
Judgment reversed, and judgment is now entered for the plaintiff and against the defendants, as of October 2, 1897, for $182.88, the costs that have been made thereafter to be paid by the appellee.
