Barr v. McGary

[406] Opinion, Me. Justice Williams: This action was brought upon a replevin bond. The judgment appealed from was entered for want of an affidavit of defence. The first question raised is whether an affidavit of defence was demandable in this case, and several cases are cited in support of the doctrine that an affidavit is not required where the instrument sued on is a bond for the performance of a collateral condition. Those cases arose, however, under the affidavit of defence law, while the present case is to be determined with reference to the procedure act of 1887. The act provides that the plaintiff shall file “ a concise statement ” of his eauge of action, together with a copy of the instrument on which the action is founded, and serve the same on the defendant. The defence must then be stated, and verified by the oath of the defendant. This makes up the issue on which the case is to go to trial, and, if the defence set out is insufficient in law to prevent a recovery, the plaintiff may ask judgment for want of a sufficient affidavit of defence. This may be done in any action of assumpsit in which the plaintiff has complied with the act of 1887, without regard to the affidavit of defence law, or the cases arising under its provisions. The next question is, whether the plaintiff has complied, with the requirements of the procedure act by putting a concise statement of her cause of action on the record, so as to give her the right to call on the defendants for a statement under oath of the nature and character of their defence. The condition of the replevin bond sued on was, that the plaintiff should “ make good his claim ” to the property replevied, and make return thereof, if it should be so adjudged by the judge of the court out of which the said writ issued, and comply with and satisfy the judgment of said court in the premises, and of the Supreme Court, if the ease shall be removed,” etc. The plaintiff’s statement set out that the action was founded on a replevin bond, and then averred that the “ said W. H. McGary failed to make good his claim in said suit, and to return the property replevied, whereby said bond was forfeited,” etc. The statement does not show whether the action of replevin is disposed of or not; whether any, and if any, ■ what, judgment has been entered therein; whether a return of the goods has been adjudged, or whether it has been deter [407] mined that the rent was in arrear, and for what sum. There is only the formal averment of breach which we have just quoted, without any such definite statement of the right of the plaintiff to recover a given sum as would justify a liquidation of the amount due by the prothonotary. This would have been insufficient in an action of debt on the bond, under the old practice. “ The declaration on the bond concisely states the proceedings in replevin, the failure in fulfilling the conditions of the bond, and the assignment: ” Morris on Replevin, 207. It is absolutely necessary to set out in the declaration the condition of a replevin bond, and the breach of it: 1 Chitty, PL, 869; and in stating the breach the judgment in replevin should be set out, as will be seen by the precedents in 2 Chitty, PL, 452-468. If the judgment be for the amount of rent in arrear, that fixes the plaintiff’s damages in his action on the bond. When the plaintiff’s claim is properly stated, the defendant may, under the procedure act, be called upon to state his defence under oath. The statement ought, therefore, to show the nature and extent of the plaintiff’s demand with such clearness and certainty, that, in default of an affidavit of defence, judgment may be taken and liquidated upon the data which it furnishes. To this end, it should show in this case, the character of the judgment in the action of replevin, and the failure of the obligors to comply with its terms. 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 upon that basis. If the judgment is for rent in arrear, the amount of rent recovered in the replevin suit furnishes the measure of the recovery on the bond. Tried by this rule, the plaintiff’s statement was insufficient. It did not show the nature and amount of the plaintiff’s demand with such certainty as to require an affidavit of defence, or to enable the court to liquidate the judgment with certainty in case no affidavit was filed. It must be remembered that our question is, not whether the statement is sufficient if pleaded to, or whether the jury might not assess the damages in case of trial, but whether a specific statement of the defence can be required under oath, without first putting a specific statement of the plaintiff’s claim on the record. Pittsb. N. Bank v. Hall, 107 Pa. 583, was a case in which the parties proceeded [408] to a trial before a jury under the practice which preceded the act of 1887, and does not reach our question. The act of 1887 was intended to shorten the road to judgment or issue by requiring the plaintiff, in all forms of action ex contractu, to state his cause of action, and the amount which he believes to be due to him, in a clear and concise form, and permitting him to move for judgment, unless the defendant shall, with like clearness and definiteness, state the nature and character of his defence under oath. But a statement in the form of a count in indebitatus assumpsit for money had and received is not such a statement as the act of 1887 contemplates, and it would not entitle the plaintiff to call on the defendant for a specific affidavit of defence. The judgment entered in this case is reversed, the record remitted, and a procedendo awarded.