72 Pa. 347 | Pa. | 1873
The opinion of the court was delivered, by
— This was an action in the court below, against the defendant as surety, upon a distinct, several and independent covenant, as bail absolute to pay the rent of William Lynn, a tenant, in consideration of the letting, and for a valuable consideration, it said also. The instant the rent fell due and was unpaid by Lynn, a cause of action arose against Blackmore, the surety. There cannot be a doubt that King could have sued the tenant for the rent, and brought an action also against the surety, and prosecuted both suits concurrently until he obtained satisfaction from one of them. As the plaintiff’s right of action against the surety was immediate, independent and concurrent, it is plain that the distress merely of the goods of the principal was not, ipso facto, a bar or a suspension of the plaintiff’s remedy against the surety. The true question, therefore, is whether the distress upon the tenant’s goods followed immediately by a replevin by the tenant and a return to the writ by the sheriff, that he had executed the writ by delivéring the goods to the plaintiff in the replevin, is such an extinguishment or satisfaction in law, as will discharge the surety from his separate covenant. On principle clearly it is not, for the goods were not sold, but went back into the possession and custody of the tenant as his own property, and by his own act; and the landlord had in lieu of the distress only the replevin-bond, and the liability of the sheriff for the solvency of the sureties in the bond; both of which were mere ehoses in action, and not satisfaction per se. Even in the case of a levy upon execution, the levy is not a satisfaction when the goods remain in the hands of the defendant in the writ, or are restored to him at his own instance : Cummins’ Appeal, 9 W. & S. 73; Lytle v. Mehaffy, 8 Watts 275; Davids v. Harris, 9 Barr 501; Cathcart’s Appeal, 1 Harris 421. The replevinbond and sheriff’s liability are but a means of producing ultimate satisfaction, but are not in themselves payment of a precedent.and absolute debt, as the sureties’ debt here was. They are neither money nor goods. The very ground upon which the sheriff’s ultimate liability stands was rested by Shippen, President, in the leading case, upon the hardship of the case of the landlord; “for
The court below founded its decision on the supposed authority of Quinn v. Wallace, 6 Wharton 457. But that case is no precedent for this. That case decided that a landlord who has made a distress on goods of his tenant, cannot make a second distress on the goods of an undertenant without showing that the distress upon the goods of the tenant was insufficient or rendered unproductive by the act of God, or of the tenant himself; and that the burthen of the proof of the insufficiency or unproductiveness of the distress lay on the landlord, who, having taken the goods into possession, is presumed to have put them to sale, as he is bound to do under the Act of 1772, and consequently has it in his power to show the result of the sale. But the present caso is clearly distinguishable from that, on the very ground that the record of replevin and sheriff’s return show that the goods were made unproductive by the act of the tenant himself, who has had them returned into his own possession, and the liability of the bond and of the sheriff substituted. The record of the replevin and return, therefore, show that the distress was no satisfaction, and consequently no bar to the independent action against the surety on his several covenant as bail absolute for the rent. Nor can the surety or bail complain of this. His liability is original, concurrent and prior to the distress. If he has to pay he will be entitled by subrogation to the security of the replevin-bond: see Burns v. Huntingdon Bank, 1 Penna. Rep. 395; Pott v. Nathans, 1 W. & S. 155; Armstrong’s Appeal, 5 W. & S. 352. He can prosecute the action of replevin to final judgment, and avail himself of the security of the replevinbond. In the meantime he can protect himself against the risk of mispayment, by a notice to the tenant, as his principal, to defend the suit of the landlord against himself on his covenant as surety for the rent. Why then should the landlord be deprived of his concurrent remedy against the surety by a replevin, which itself accounts for the distress, and shows that it was made unavailable by the tenant’s own act ? The consequence flows from the. very form which the contract was made to take by the mutual acts of the parties; that is to say, two separate and independent agreements for the debt. Like the several liabilities of drawer and endorser, the remedy against each is complete and independent, and can be pursued, concurrently with the other, to judgment and execution, and can be ended only by actual payment or a legal extinguishment which satisfies the debt. The distress and replevin were not a bar to the plaintiff’s action, and the court erred, therefore, in entering judgment for the defendant non obstante veredicto.