6 Pa. Super. 273 | Pa. Super. Ct. | 1898
Opinion by
This was an action of assumpsit upon a constable’s official bond. The breach alleged was that an execution having heen placed in his hands by virtue of which he had made a levy upon goods of the debtor which would have sold for more than enough to satisfy the execution: he neglected and refused to sell them but falsely made return “no goods found subject to levy and sale.” The action was in substance, as well as in form, ex contractu, and by the express terms of the act of 1887 the plaintiff’s statement in such a case “ shall be replied to by affidavit.” There is nothing in the objection, that an action upon a bond conditioned for the performance of collateral acts or official duties, is not within the affidavit of defense law. If the statement contains all the ingredients of a complete cause of action, averred in clear and unequivocal language, and the damages are specifically set out, so that, upon a judgment by default, they may be liquidated with certainty, an affidavit must be filed to prevent judgment. See Byrne v. Hayden, 124 Pa. 170. The principle upon which Osborn v. First Nat. Bank, 154 Pa. 134 was decided has no application to a case like the present, and the other eases cited by the defendant’s counsel were decided prior to the act of 1887, which, as was said in Byrne v. Hayden, was intended to have a wider scope than the old affidavit of defense law.
It was not error to permit the plaintiff to withdraw his original statement and to file another, averring the elements of his damages with greater particularity, and verified by affidavit as the rules of court required. No new cause of action was introduced. It was, in effect, a proper exercise of the power to permit amendments: Kay v. Fredrigal, 3 Pa. 221. Nor was there error in granting a second rule for judgment after the defects in the original statement had been cured by amendment: Wetherill v. Stillman, 65 Pa. 105.
The act of March 21,1772,1 Sm. L. 365, declares: “No action shall be brought against any constable .... for anything done in obedience to any warrant under the hand and seal of any justice of the peace, until demand hath been made, .... in writing, signed by the party demanding the same, of the perusal and copy of such warrant duly certified under his hand, and the same hath been neglected for the space of six days after such
The 29th section of the act of March 20,1810, 5 Sm. L. 173, provided that constables’ bonds should be “for the like purposes and uses for which sheriffs’ bonds are usually given.” Substantially the same provision was incorporated in the 112th section
Judgment affirmed.