124 Pa. 170 | Pa. | 1889
Opinion,
This suit is on a claim property bond given pursuant to an order of court awarding a feigned issue to try the title of John Campbell, one of the obligors, to certain personal property levied on by virtue of an execution issued by James Hayden, defendant in error, and claimed by said Campbell. The bond, reciting the proceedings in which it was given, was executed by Campbell, as principal, and Peter Byrne, plaintiff in error, as surety, in the penal sum of $700, conditioned that the goods' so levied on and claimed by Campbell “ shall be forthcoming on the determination of said issue, to answer said writ of execution, if the said issue shall be determined in favor of said James Hayden,” etc.
The proceedings, leading up to the giving of this and another
After reciting the proceedings which resulted in awarding the feigned issue, etc., plaintiff below avers that on November 16, 1881, the issue was determined in his favor, and that “said goods have not been forthcoming to answer the said writ of execution, and therefore said bond is in full force and virtue and then concludes by appending a copy of the bond on which this action is grounded. The copy contains, inter alia, a recital that the sheriff “ has levied on the goods and chattels mentioned in the schedule annexed and marked A, which goods and chattels are by the said John Campbell claimed to be his property.” No copy of the schedule, thus referred to as annexed to the bond, is given, jmd no explanation of its absence is attempted; nor is there any averment as to what the “ goods and chattels ” were, or what was their value. It is undoubtedly elementary law that, in an action on a penal bond, conditioned for the performance of any collateral undertaking, such as the forthcoming of personal property, etc., it is incumbent on the plaintiff not only to aver, but, unless relieved by the pleadings,
As above stated, uidess the plaintiff is relieved therefrom by the pleadings, it is incumbent on him not only to aver both the breach and the damages sustained thereby, but to prove both on the trial. It necessarily follows that he is not in a position to demand a liquidated judgment for damages unless he has set forth in his declaration or statement of claim, a cause of action complete in all its essential ingredients. An averment of the balance due on the execution creditor’s judgment is not an averment of the damages sustained by breach of the bond, unless it is also averred that the goods which should have been forthcoming were worth as much as or more than the balance of the judgment. The bond in suit contains no such condition, express or implied, as that the obligors shall pay the balance of defendant in error’s judgment, wfithout regard to what may
It appears from the docket entries that the fieri facias against Sheeran in 1877 was returned, “levied, etc., and sold a portion of said property for $430.50,” etc. It does not appear whether, after the final determination of the feigned issue, a venditioni post fieri facias, etc., was issued and demand made for the goods or not; but, in view of the distinct and uncontradieted averment that the goods were not forthcoming to answer the writ of execution, the statement of claim, in that respect, is sufficient. The only serious defect in the statement is the'want of an averment as to the value of the goods. In the absence of that, there is nothing by which to measure the damages sustained by the breach complained of.
It has been suggested that, the breach being admitted, it may fairly be presumed the goods were worth at least as much as the balance due on the judgment. Such a proposition as that is untenable. The fact that the condition of the bond has been broken does not shift the burden of proof from the
There is nothing in the suggestion that the instrument is not within the affidavit of defence rule. The act of 1887 providing for filing statement of claim, etc., was intended to have a wider scope than the old affidavit of defence law. It is necessary however that the statement should contain all the ingredients of a complete cause of action, averred in clear, express, and unequivocal language, so that if the defendant is unable to controvert or deny one or more of the material averments of claim, a judgment in default of an affidavit or sufficient affidavit of defence may be entered and liquidated. The elements of such liquidation must be furnished, at least to the extent that the maxim, id certum est quod certum reddi potest, may properly apply. The statement authorized by the act is a substitute for a formal declaration. The affidavit of defence in this case is in the nature of a demurrer to the plaintiff’s statement of claim. If the latter is defective, as has been shown, the affidavit of defence is sufficient to prevent a summary judgment for plaintiff.
Judgment reversed, and a procedendo awarded.