Jones v. Gordon

| Pa. | Feb 18, 1889

Opinion,

Mb. Justice Williams :

The judgment brought before us on this record was entered for want of a sufficient affidavit of defence. Three questions are raised, viz.: (1) Was an affidavit of defence required in this case ? (2) If an affidavit was necessary, could a second or third affidavit be required upon an amendment by leave of court of the plaintiff’s statement of his cause of action ? (8) Was there a sufficient affidavit upon the record in this case?

The plaintiff’s original statement disclosed a demand for a specific sum of money and the interest thereon, which before the procedure act of 1887, could have been recovered in an action of debt. The defendant set up the receipt of the money, as treasurer of the Benevolent Fund of the Third Reformed Dutch Church of Philadelphia, and its investment in a mortgage, in accordance with the purposes of the trust under which he held it. The plaintiff then filed by leave of court an amended statement claiming a right to have the mortgage delivered up to him. The plaintiff’s statement of his claim was then in the same position that it would have been placed under the old system of pleading, if the narr had been in debt with an added count in detinue.

The first section of the act of 1887, provides as follows: “So far as relates to procedure, the distinctions heretofore existing between actions ex contractu be abolished and all demands heretofore recoverable in debt, assumpsit, or covenant, shall hereafter be sued for and recovered in one form of action to be called an action of assumpsit.” If, therefore, the demand sued for could have been recovered in either of the actions named, it can be recovered in this; arid, if recoverable in this action, an affidavit of defence can be required from the defendant.

It is very clear that the demand could have been recovered in debt prior to the act of 1887, and that act should be liberally interpreted. The mischief to which it was directed was the distinctions between the forms of action ex contractu. The remedy provided is an abolition of such distinctions and a provision for the recovery, in one action, of all demands before recoverable in debt, covenant, or assumpsit. To what extent or for what purposes the action of detinue still survives, is not a question now before us, but wherever an action of debt would lie before 1887, there assumpsit will now lie.

The second question is equally free from difficulty. The act of 1887 authorizes the service of a copy of the plaintiff’s claim on the defendant, and requires him to answer under oath. Amendments are liberally allowed in our practice. Where an amended statement has been filed with leave of the court it is competent for the court to make such order for personal service thereof, and for the defendant’s reply, as the justice of the case may require. The plain purpose of the act of assembly is to reach the real point in dispute by the most direct road and in the most expeditious manner consistent with a due regard to the rights of the parties. We see no objection to such a construction as shall secure this purpose; and we accordingly hold that the court allowing an amendment in the statement, may provide by rule or order for its actual service, and for judgment for want of a reply within such reasonable time as it may fix.

The subject of controversy in this case is a legacy in the will of Mrs. Ann Hertzog given in the following words: “I give and bequeath to my executors the sum of $8,000, in trust to pay over the same unto the treasurer for the time being of the Benevolent Fund of the Third Reformed Dutch Church of Philadelphia, to be applied to the uses and purposes of said fund.” This legacy was to the church for use as part of its benevolent fund. Her executors were to pay it over to the treasurer who might be in office when the time for payment of the money came. The treasurer is charged with no duties or trusts under the will other than those which his office as treasurer of the Benevolent Fund imposed. It is to be paid to him as custodian of the fund for its owner, the church, and is “to be applied to the uses and purposes of said fund,” as those uses and purposes may be indicated by the church.

This is the fair purport of the words employed by the testator. The church takes the title and the treasurer as the proper officer takes the actual possession. It is his duty to obey the directions of the organization whose servant he is, while his official term continues, and to turn over to his successor the books, papers, and moneys remaining in his hands. This was the duty of treasurer Jones, which he recognized as to all but the legacy of Mrs. Hertzog. He seems to have regarded himself as charged with such duties in regard to this fund as to entitle him to hold it notwithstanding the end of his term. The church directed his successor to institute proceedings for the recovery of it, and this he did in his own ■ name, instead of the name of the church. But like his predecessor he has no title to the benevolent fund or any part of it. When it comes into the treasury he will by virtue of his office have the possession and care of it, subject to the control of the church authorities so long as he remains in office and no longer. Now the facts showing the ownership of the church and the want of title in the plaintiff were set out in the affidavits. It is true that the defendant set up a title in himself which he could not sustain upon the facts presented to the court, but it is equally true, and was equally evident on the record of the court below, that the plaintiff had no title on which a recovery could rest, and for the same reason, viz., that the church and not its treasurer was the owner. The plaintiff was not entitled to a judgment, therefore, and his motion should have been denied for the reason we have stated.

The judgment is therefore reversed, and a procedendo awarded.