Ramsdell v. Seybert , 1905 Pa. Super. LEXIS 20 ( 1905 )

Opinion by

Henderson, J.,

The plaintiff’s statement of claim clearly sets forth his title to the property. That title does not arise from nor depend upon the lease to Mrs. Lutz. The action is not brought upon the lease, and the reference to it in the declaration was apparently made in anticipation of a defense which might be set up. It was not necessary, therefore, to set forth the lease in terms. The defendant does not deny the plaintiff’s title to the property, but alleges by way of defense that it was seized on a distress for rent, and sold at public sale by virtue of the landlord’s warrant placed in the defendant’s hands. The affidavit of defense is materially defective in that it does not set forth a compliance with the law, regulating the sale of goods for rent. The proceeding is statutory and the requirements of the statute must be observed or the person making the seizure stands a trespasser. Even where the seizure is regular, if the succeeding steps are not in compliance with the directions of the statute, the landlord and his agent are liable as trespassers: Esterly Machine Co. v. Spencer, 147 Pa. 466; Snyder v. Boring, 4 Pa. Superior Ct. 196. It is a firmly established rule relating to affidavits of defense, that any subject of defense set up must be specifically averred; nothing is to be left to inference, and what is not stated must be regarded as not existing: Kyler v. Christman, 23 Pa. Superior Ct. 548. In order to render the affidavit available, it should have set forth that the several statutory requirements relating to the sale of chattels on distress for rent had been complied with, and that the public sale referred to in the affidavit was, therefore, a legal sale. The presumption in favor of the legality of the proceedings of officers of the law does not apply in the case of a constable who dis-trains and sells under a landlord’s warrant. In such a proceeding the constable is the agent of the landlord and not a public officer. The landlord’s warrant is not a justification for a constable: Murphy v. Chase, 103 Pa. 260; McElroy v. Dice, 17 Pa. 163. The time when the notice was given by the plaintiff to the landlord under the provision of the act of May 13,1876, P. L. 171, only becomes important if there was a compliance by the defendant with the provision of the act of 1772 relating to distress for rent, and if he did not regard those directions he became a trespasser. If he proceeded in compliance with them, the fact should be so averred in the affidavit of defense.

The judgment is affirmed.