Commonwealth v. Allen

Citations

• 254 Pa. 474
• 98 A. 1056
• 1916 Pa. LEXIS 754

Syllabus

<p>Trusts and trustees — Absconding trustee — Removal without notice — Liability of surety — Act of May 1,1861, P. L. 680 — Affidavit of defense — When required — Insufficient averments — Practice Acts of May 25, 1887, P. L. 271, and May U, 1916, P. L. kS8.</p> <p>1. Where an action was begun before the passage of the Act of May 14, 1915, P. L. 483, the necessity for an affidavit of defense must be considered under the Practice Act of May 25, 1887, P. L. 271.</p> <p>2. Under the Act of 1887 an affidavit of defense is required where the action sounds in contract and the demand is certain, or can be made so by proper averments or calculations.</p> <p>3. Under such act an affidavit of defense is required in an action on a trustee’s bond to recover for loss resulting from a tort committed by the principal in failing to account for the proceeds of a sale of real estate.</p> <p>4. Under the Act of May 1, 1861, P. L. 680, authorizing the court to remove a trustee who fails to properly perform his duty, a trustee may be removed without the issuance of a citation to appear, upon petition alleging that the trustee is a defaulter, a fugitive from justice and that his whereabouts are unknown.</p> <p>5. In an action on a trustee’s bond to recover for a tort committed by the trustee, where it appeared that the trustee had become a bankrupt, the surety was not discharged by reason of the fact that there was no prior adjudication fixing the liability of the trustee, the amount which he had received being admitted by the surety, and the credit to which he was entitled not being disputed by plaintiff.</p> <p>6. In such case the bond being given to the Commonwealth the action was properly brought to the use of the substituted trustee.</p> <p>7. A trustee appointed by the Orphans’ Court in proceedings under the Price Act, to sell a decedent’s real estate, embezzled the proceeds of the sale and absconded. He was subsequently adjudged a bankrupt by the Federal Court. The Orphans’ Court,