Clements v. Dempsey

Opinion bt

Rice, P. J.,

To entitle the plaintiff in an action upon a bond, conditioned for the performance of collateral acts, to a judgment for want of an affidavit of defense' his statement of claim must not only allege the breach in clear and unequivocal language, but must also set out the damages specifically, so that upon judgment by default they may be liquidated with certainty: Com. v. Yeisley, 6 Pa. Superior Ct. 273; Byrne v. Hayden, 124 Pa. 170 ; Barr v. McGary, 131 Pa. 401. In an action upon a replevin bond it is held, that, if the judgment is de retorno habendo, the value of the goods stated in the writ and bond may be taken, and the judgment liquidated on that basis, but if it is for rent in arrear, the amount of the rent recovered in the replevin suit furnishes the measure of the recovery on the bond: Barr v. McGary, supra. Here the writ was quashed, hence there was no judgment de retorno habendo nor for the rent in arrear. Conceding, however, for the purposes of the case, that there was a breach of the condition of the bond to prosecute the suit with effect, for which an action would lie (Balsley v. Hoffman, 13 Pa. 603; Bank v. Hall, 107 Pa. 583), the measure of damages is not the penalty of the bond, but the actual damages sustained in the particular case. For the purposes of a motion for judgment for want of an affidavit of defense, or of a sufficient affidavit of defense, these, as we have seen, must be set forth in the plaintiff’s statement with such particularity that the specific sum to which the plaintiff is entitled may be ascertained with certainty; what is not so set forth need not be considered on the hearing of such a motion.

The only averment of damages which under this plain rule we are called upon to consider is, “ that by reason of the said writ of replevin the said A. B. Yance was prevented from collecting the said rent, to wit: seventy-seven dollars, with costs to the amount of thirty-seven dollars, in all the sum of one hundred and fourteen dollars.” Whether or not there are other damages, which under proper averments the plaintiff might be entitled to recover, is immaterial in the present inquiry, for the reason that no others are specifically set forth. The suggestion that under the act of 1779 the court, besides quashing the writ of replevin, may and shall award treble costs (the costs of suit not of the distress) to the defendant in such writ, goes for naught without an averment of the amount of such costs, even if it be conceded that they would be recoverable in an action on the replevin bond. We may, therefore, leave that suggestion out of view and confine our attention to the specific averment above quoted. The defendant meets this with a direct and positive affirmance that the tenant paid the rent in arrear and the costs of the distress. But if these were paid by the tenant, who was primarily liable for them, we know not upon what principle the bailiff can resort to the replevin bond to collect them out of a third person whose goods happened to be upon the premises, and to be included in the distress.

Appeal dismissed' at the costs of the plaintiff, but without prejudice.