84 Pa. 15 | Pa. | 1877
delivered the opinion of the court,
The point is not one which it is necessary now to decide; but there is room for grave doubt whether this action can properly be brought within the operation of any of the statutes authorizing the entry of judgment for want of an affidavit of defence. The eleventh section of the Act of the 21st of March 1772, directs that a replevin bond shall be “ conditioned for prosecuting the suit wdth effect and without delay, and for duly returning the goods and chattels distrained in case a'return shall be awarded.” In no natural sense can this condition be regarded as an agreement for the payment of money under the Act of March 28th 1835; nor is it embraced in the second section of the Act of 12th of March 1842, requiring affidavits in actions on bonds and recognizances of bail in error, on bonds of sureties for stay of execution, on bonds or recognisances of special bail, and on bonds given by insolvent debtors and their sureties, under the sixth section of the Act of the 16th of June 1836. The record in many instances would not furnish means of liquidating the judgment that would be both just and safe. “ The defendant’s remedy is on the replevin bond, wdiere there can be no recovery beyond the value of the goods, and where it may be less than the value, for the rent may be inferior in value to the goods, because by paying the rent the debt would be satisfied Weidel v. Roseberry, 13 S. & R. 178. The practice of requiring affidavits of defence in such cases as this, if such a practice prevails, would seem capable of producing mischief and injustice.
Judgment reversed and procedendo awarded.