Hossler v. Hartman

Mr. Justice Mercur delivered the opinion of the court May 4th 1876. This judgment was taken for want of an affidavit of defence under the first section of the Act of 9th of April 1868, Pamph. L. 780. It authorizes judgment to be so taken, inter alia, in actions “uponbills, notes, bonds, records or other instruments of writing for the payment of money, and on claims for the loan or advance of money, whether the same be reduced to writing or not.” It further declares, “but no judgment shall be entered unless the plaintiff shall, on or before the return day of the original process, file in. the office of the prothonotary with his declaration or statement * * * a copy of the instrument of writing, book entries, record or claim on which the action has been brought; and on contracts for the loan or advance of money not in writing, an affidavit setting forth the terms of said loan or advance with the date and amount thereof.” This action is in assumpsit. The narr. contains common counts only. The docket shows that the affidavit of plaintiff’s cause of action and the narr. were both filed on the same day. The record entry of the filing, of the affidavit immediately precedes the like entry of the narr. It is urged, however, inasmuch as they were not written on one piece of paper, nor attached together, and each was deposited in a separate pigeon-hole in the office, that the affidavit was not filed “with the narr.” It is claimed that “with” in the act, means connected with or attached to the narr., so that the two must be kept together and deposited in the same place. We cannot concur in that construction of the statute. We think it only means that they shall be' filed at the same time. This view gives full effect to the whole intent of the statute. It does not [56] profess to direct the prothonotary in regard to his subsequent care or mode of keeping them. They were filed at the same time. Being so filed, each was filed with the other. By so filing them the plaintiff discharged his whole duty. He cannot be affected by the fact that the prothonotary deposited them in different localities. Besides, the entry on the docket gives actual notice of the filing more readily than a search among the files. Any examination of the docket to see if the narr.- was filed could not fail to disclose that the affidavit was also filed. The remaining question is whether the cause of action is such as to -require an affidavit of defence under the Act of Assembly cited. The plaintiff in error sold and assigned to the defendant in error, a certain judgment of $300 and interest in the Gommon Pleas of York county. The defendant in the judgment afterwards applied to -the court and got it opened on the ground that it was “without consideration and had been improperly obtained.” By due course of proceedings had, and for the. reasons alleged, the judgment was annulled and avoided. On the sale by the plaintiff in error, there was no express guaranty of the validity of the judgment, nor any express agreement to pay back the consideration money under any circumstances. The action rests on an implied agreement that the judgment was á valid one for the amount shown on its face. Not that it Avas worth that much, but that it was what it purported to be, a judgment against which there was no legal defence. The claim was to recover the consideration paid with interest. The question is not as to the right to recover under the facts alleged. That must be conceded: Lyons v. Divelbis, 10 Harris 185 ; Elynn v. Allen, 7 P. F. Smith 482 ; but whether an affidavit of defence was required. The defendant in error contends that his demand is substantially “ a claim for the loan or advance of money” under the Act of 1868, supra. But his affidavit shoAvs that it was neither a loan nor an advance of money. It is therein averred to have been paid in the purchase of a judgment, and was the consideration for the sale thereof. The invalidity of the judgment is the cause of complaint. In selling the judgment, the law assumes the vendor’s implied con- ■ tract of its validity, as in like manner it assumes the vendor’s implied warranty of his title on á sale of any personal property. Hence, on the purchase of a horse, and a failure of title, with just as much propriety might it be said, the money paid therefor, Avas “a loan or advance,” as to so claim in the purchase of this judgment. This action is not to recover money paid on the ground of fraud and deceit, but is to enforce an implied contract in the sale. [57] Suppose we should concede that there was an implied promise, which the affidavit does not aver, to repay the money in case the judgment was invalid; yet even then it does not present a case in which an affidavit of defence is required. This conclusion is fully sustained by Dewart v. Masser, 4 Wright 302 ; Woodwell v. Bluff Mining Co., 1 Casey 365, and Barr v. Duncan, 26 P. F. Smith 395. It follows, therefore, there was error in entering the judgment, and the learned judge should have stricken it off. Judgment reversed, and a procedendo awarded.