Russell v. First Presbyterian Church

The opinion of the court was delivered, January 31st 1870, by

Sharswood, J.

The 1st assignment of error is, that the court refused to allow the Second Presbyterian Church of Pottsville to become a party defendant to the action. They applied by petition to that effect on the day of the trial. But it would have been contrary to all our practice on the subject of interpleading to have permitted it. Though admitted as a party to the record, they would not thereby have been made parties to the issue, nor could the jury have been sworn as to them. J[The only personal action in which the right of interpleader existed at common law was detinue: 3 Reeves 449. It was applied to a few other cases, such as quare impedit, and writs of right of ward: 2 Story’s Eq. Juris. 804. The defendant in detinue could plead that the chattel for which suit was brought was held by him as bailee or depositary ; that it was claimed by a third person in privity with the plaintiff, and that he was willing to deliver it to the party who was legally entitled to it. Thereupon a process of garnishment issued to compel such third person to appear and defend, or else disclaim his title. ^This practice has been adopted by the courts of this state, and extended to other forms of action. The want of a court of chancery rendered this necessary to prevent a failure of justice. For although a defendant might protect himself by giving notice of the suit to the claimant, and calling upon him to appear and take defence in his name, yet the latter not being a party' to the record, would not be concluded by the judgment without [proof of the notice. If that proof should fail the defendant would be remediless, and thus might be subjected to two judgments against him for the same cause of action by two different plaintiffs. Hence the practice was early introduced of compelling such third person to become a party by rule or scire facias founded on a suggestion of the defendants, and no doubt he would be admitted to appear and plead gratis without order or process on. such suggestion: Coates v. Roberts, 4 Rawle 109; Wallace v. Clingen, 9 Barr 51; Tritt v. Crotzer, 1 Harris 458; McMann v. Caruthers, 2 Am. L. Jour. 133. It is the defendant, however, who is to be protected. He must, in due time, make the suggestion, show that the claimant is in privity with the plaintiff, state his willingness to pay the money to the one found entitled to recover it, and pray for the substitution. \ Taking the special plea filed in this case to have been intended as a suggestion, it was defective in all these respects. In fact, as it after-wards appeared, the .defendant had a defence personal to himself, which he attempted to set up to the claim of the Second Presbyterian Church. There was no error, therefore, certainly not at that stage of the proceedings, in refusing to allow the Second Presbyterian Church to intervene and become a party to the suit.

The 2d error assigned is in the rejéction of an offer made by the defendant. The evidence produced on the part of the plaintiffs showed that the defendant had been elected their treasurer October 7th 1867, followed by a receipt signed by him as such treasurer, acknowledging to have received from the borough of Pottsville $1000, it being the first payment for the Second Church property, and another receipt of a subsequent date, signed by defendant, but not as treasurer, for a further sum of $1000, and three bonds of the borough of Pottsville for $2000 each, being the balance of the purchase-money received for the sale of the Second Church property. This certainly made out a primá facie case for the plaintiffs. The defendant then offered the charter of the Second Church, to be followed by evidence that he was the treasurer of the Second Church at the date of the receipts, that the money for which the said receipts were given belonged to said church, that he had signed the said receipt first named as treasurer of the First Church under the mistake that a merger of the two churches was about to take place, but that such merger never was consummated, and the Second Church held him answerable to them for the money. This offer was rejected. In this we think there was error. Admitting that the signature to the first receipt was evidence, not only that the first but the second payment was made to the defendant, and received by him as treasurer of the First Church, it was primá facie only, certainly not conclusive. There was nothing to work an estoppel in favor of the First Church. They had done nothing on the faith of it. It did not preclude the defendant from showing that in truth he received the money as the treasurer of the Second Church, and. that he signed the receipt as treasurer of the plaintiffs under a mistake of fact, that he supposed that the Second Church was or would be merged in the First Church. A receipt is like any other parol admission by the party, open to contradiction, explanation or correction. It may be shown that it was given under a mistake, either of fact or law: Thompson v. Faussat, Peters’s C. C. R. 172; Moore v. The Commonwealth, 8 Barr 260; Bell v. Bell, 2 Jones 235; Grue v. Kline, 1 Harris 60. It would certainly be very inequitable if, in consequence of such a mistake, the defendant should be compelled to pay the money twice, as the Second Church could not have been prevented by his receipt from recovering the money from him, if the facts stated in his offer were, as we must assume, true."I The learned judge was right in rejecting the evidence contained in the 8d assignment of error. The treasurer of a corporation cannot set off a debt or independent claim when sued for the money in his hands. He received the funds to hold at the order of the corporation as their officer, and without such order he cannot pay or appropriate them either to himself or others. There is fairly to be implied, from the relation he sustains, an undertaking not to plead a set-off, but to account and pay over whatever money came to his hands in that character: Middletown and Harrisburg Turnpike Co. v. Watson, 1 Rawle 330; Henniss v. Page, 3 Whart. 275; Bank of the United States v. Macalester, 9 Barr 475; Reed v. Penrose’s Ex’rs., 12 Casey 214.

Judgment reversed, and venire de novo awarded.