Commonwealth v. Gracey , 96 Pa. 70 ( 1880 )

Mr. Justice Paxson

delivered the opinion of the court, November 15th 1880.

The decree of the Orphans’ Court directing Robert Gracey, guardian, to pay over to the plaintiff, who is his successor in the trust, the money in his hands as such guardian, not having been appealed from, is conclusive both upon Gracey and the sureties upon his official bond. It is manifest, therefore, that in an action of debt upon such bond the defendants can have no defence but payment. The affidavit of defencesets up nothing of the kind. It makes some suggestions as to what ought to be done in the Orphans’ Court.in the way of distribution of the funds, but this is a question with which a defaulting guardian can have no concern. Having been removed from the trust his duty is to pay the money which the Orphans’ Court has adjudged to be in his hands.

No sufficient defence appearing in the affidavit, the plaintiff is entitled to judgment provided he has placed himself in a position to demand it. The, Act of 14th June 1836, Pamph. L. 639, prescribes the manner of proceeding upon official bonds. The plaintiff appears to have proceeded in substantial conformity to the act. It is true he did not file a declaration, but he did file a copy of the bond with an affidavit distinctly setting forth the breach. Rule 9 of the court below provides for the filing of a declaration before judgment by default only when necessary. It was not necessary here. The only benefit of a declaration would be to assign the breach and that was sufficiently done by the affidavit. The bond in question was clearly within the rule of court which prescribes in what cases judgment may be taken for want of an affidavit of defence, and as the affidavit of defendant disclosed no defence the plaintiff was entitled to judgment.

The order of the court below refusing to enter judgment for want of a sufficient affidavit of defence is reversed, • and it is now ordered that the record be remitted to the court below with directions to enter judgment against the defendants for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be so entered.'