Second National Bank v. Gardner , 171 Pa. 267 ( 1895 )

Opinion by

Mr. Justice Mitchell,

The sheriff’s return was in the form prescribed by the statute, and therefore by its terms showed a good service. But if it were traversable it was good on the facts so far as they appear. The defendant had gone away leaving his family in his residence, and there was no evidence of his intention to acquire a new domicile, certainty none that he had acquired one. The only negation of intention to return is by an inference from the circumstances, drawn by his wife, who expressly admits that she had no information from him on the subject.

On the other branch of the case, the plaintiff’s statement contained the averment that tho defendant “took for his own use out of the moneys of and belonging to the said bank ” the sum etc. and that no part of the said sum “ has ever been paid by the defendant to the plaintiff, and that the same is owing, unpaid and due from the defendant to the plaintiff.” This states a good prima facie cause of action. The plaintiff was not bound to go further and negative possible defenses.

The averments in the statement as to the tickets or memoranda deposited by the defendant in the place of the money he took, and the copies of such tickets attached to the statement, are in compliance with the act of 1887. The tickets do not of themselves import any liability on the part of the defendant, and would certainty not comply with the rule under the old affidavit of defense law that required the instrument sued on to be such as could go to the jury to establish, unaided by other evidene.e, the liability of the defendant. But this rule and the cases of Harbison v. Hawkins, 81* Pa. 142, and Wall v. Dovey, 60 Pa. 212, cited by appellant, were under the former statutes by which the affidavit was made to the instrument sued on. All the cause of action that the court had before it on the rule for judgment was the copy filed. Under the practice act of 1887 however the affidavit is to a defense against the statement, and the copy of instrument attached to the latter is merely a matter of evidence, in aid of that precision in setting forth the cause of action, which it was probably perceived would be likely to be wanting in the rambling story which the act invited plaintiffs to substitute for a declaration in the scientific and approved form.

The circumstances are such that there may be a hardship in the case, and if defendant or his counsel can produce any evidence to cast a doubt on the amount, or on the merits in any way, he will have a good standing to have the judgment opened, but on this record we find no error in entering it.

Judgment affirmed.

Steerett, C. J., dissents.