Philadelphia Saving Fund Society v. Commonwealth Trust Co.

Ellenbogen, J.,

— This case comes before the court en banc on an affidavit of defense raising questions of law. Defendant contends that this action cannot be maintained for two reasons:

First: The action being based on a bond signed by defendant as trustee, there is no individual liability on the part of defendant; and

Second: The obligation sued on is joint and not several.

In disposing of an affidavit of defense raising questions of law the averments of fact contained in the statement of claim must be assumed to be true.

This is an action in assumpsit on a bond accompanying a mortgage. The bond…