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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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seizure of the defendant's goods for the same debt, or a second dis-
tress of the tenant's goods for the same rent, without some neces-
sity of good cause for it ; the presumption is, that goods sufficient
were taken in either case in the first instance, and therefore it is that
it rests upon the plaintiff in the judgment, or the landlord claiming
the rent, to repel this presumption by evidence, and to show some
justifiable cause for resorting to a second seizure or distress. This
doctrine is laid down and established by the decision of the Court of
King's Bench in Vaspar v. Edwards, or Eddowes, as the defendant
is called in most of the reporters, 12 Mod. 658 ; 1 Ld. Raym. 720 ;
1 Salk. 248 ; a cause that was spoken to several times by counsel
*4fifi1 at ^ ne k ar > an d one in *which the judges, after great con-
J sideration, delivered their opinions seriatim ; Gould, J.,
dissenting (not as to the goodness of the plea, but in regard to the
replication) from Holt, J., and Powis, and Turton, Justices. The
action was trespass quare clausum fregit, and feeding on the plain-
tiffs grass with a pig. The defendant pleaded not guilty as to all
except the trespass by the pig ; and as to that, that the plaintiff
had taken the pig doing the damage, and had impounded it in a
common pound at J., and there the said pig ex causa predicta
detinuit. The plaintiff, by his replication, confessed the taking
and impounding, but alleged that afterwards the pig, without his



1841.] OF PENNSYLVANIA. 466

[Quinn . Wallace.]

consent and will, did escape out of the pound ; to which the de-
fendant demurred. The plea was held good, and the replication
of the plaintiff bad, because he did not undertake to show thereby
that the escape was without his default. The distress, it will be
observed, being taken damage -feasant, was taken merely as a
pledge, and could not be sold by the plaintiff; which made the case
stronger for him than it would have been, could he have satisfied
himself by a sale of the distress. The court held that before the
distress is made in such case, the plaintiff has choice either to dis-
train or bring his action of trespass ; but having made his election
and taken a distress in that case, he could never have recourse to
any other remedy till that which he had adopted proved ineffectual
through the act of God or the wrong of the defendant, neither of
which was alleged by the plaintiff in his replication. It is clear
that the judges, in delivering their opinions as to a distress being
prima facie a bar to a second distress or another remedy, make no
distinction between a distress for rent and a distress damage-feas-
ant : so that if a distress be taken for rent, an action of covenant
or debt, or case for use and occupation, cannot be supported for it
afterwards without the landlord's showing that he had lost the
benefit of the distress without any default upon his part; or that
it had, upon a sale thereof, proved insufficient to pay the whole of
the rent, and that his action was only brought for the residue.
"It is enough," says Lord Holt, ''for him that is distrained to
show a distress taken, and it behoves the other side to show how
the possession of it happened to be lost ; and since he has lost the
possession, he knows best how." And so it may be said in the case
before us, that it was enough for the plaintiff to show a prior dis-
tress taken for the same rent, but after that was shown, it behoved
the defendant, who had the possession and control of the distress,
to show what had become of or had been done with it, and if he
has parted with it, he best knows, and ought therefore to show it.
He has evidence of its value within his knowledge, or at least must
be presumed to have, which the plaintiff cannot be expected to
have, as it was his duty to have it appraised : and if he sold it,
he ought to give an account thereof, by showing the prices at which
the articles distrained on were respectively sold ; otherwise the fair
presumption is, that he is fully paid the amount of his rent ; r* <g-r
*and especially as would seem from the paper-book here, '
that instead of evidence being given going to repel this presump-
tion, evidence was given on the part of the plaintiff showing that
the former distress was of sufficient value to satisfy the whole
amount of the rent claimed. And these are the principles which
would seem to govern in the case of a sheriff who has taken goods
under an execution placed in his hands, and would make it his duty
to show by proof, after evidence given of his having taken the



467 SUPREME COURT [March Term,

[Quinn v. Wallace.]

goods, how he had disposed of them, and what they had brougnt
at sale, if any appeared to have been made. Beale's Executors v.
Commonwealth, for, c., 11 S. & R. 188, 304; Little v. Delaney,
5 Binn. 272-3. We therefore think that the District Court was
wrong in charging the jury that the plaintiff was bound to show
that the goods first distrained had been converted into money and
were sufficient to pay the whole rent. On the contrary, we are of
opinion, that it was incumbent upon the defendant, in order to jus-
tify his making the second distress, to show how and in what man-
ner the first had been disposed of by him, as it was entirely under
his control, and to show that, upon a lawful disposition made of it
by him, it had proved insufficient to pay the whole of the rent.
We consider the cases of Lear v. Edmunds, Hudd v. Ravenor,
noticed before, and Lingham v. Warren, 2 B. & B. 36 ; s. C. 6 E. C.
L. R. 10, containing the same principle, as repugnant to the prin-
ciple of Vaspar v. Eddowes, which may be regarded as a binding
authority upon us, it having been decided before the revolution,
and which settles the principle that a party having a right to dis-
train, cannot, after having made a distress, resort to any other
remedy for the same cause, without showing that the distress has
been rendered unproductive, either by the act of God or the act of
the person from whom it has been taken. Suppose, in conclusion,
that Collins, the immediate lessee of Willing, the landlord in this
case, has replevied the first distress, as he might have done before
the second was taken, would it not savor of great injustice and
oppression to hold that Willing or his bailiff was justified in taking
the second, without proving or showing that the first was of insuffi-
cient value to satisfy the rent, and that more property could not
be found then to distrain on ; or that some mistake, such as might
readily happen, had been made in respect to the value of the first?
It really does appear that no other than an affirmative answer can
be given to this question. The judgment is reversed and a venire
de novo awarded.

Judgment reversed and a venire de novo awarded

Cited by counsel, 8 W. & S. 451 ; 1 Casey 255 ; 6 Id. 290 ; 11 Wright 48.

Followed, 3 Wright 257. || A distress, rendered barren by the act of the
tenant, is no defence to a suit for the rent against him and his surety : Rob-
inson v. White, 3 Wr. 255. On this principle, a distress followed by a
replevy of the goods by the tenant, does not bar a concurrent suit on an
independent covenant of suretyship for the rent : King v. Blackmore, 22
Smith 347 ; the surety can notify the tenant to defend, and would, in case of
a recovery against himself, be entitled to subrogation to the security of the
replevin bond : Ibid.

The fact of the payment of rent by a sub-tenant to one neither the para-
mount landlord nor his agent, &c., is no obstacle to the latter's right to
distrain the former's goods for rent due by the intermediate tenant. Such
sub-tenant, whose goods were so distrained indifferently with those of the
intermediate tenant, has no equity enforceable in replevin to compel the sale



1841.) OF PENNSYLVANIA. 467

[Quinn v. Wallace.]

first of the latter's goods. Such sub-tenant replevied so much of the dis-
trained goods as were his, and gave bond. Subsequently the distrainor
released the residue of the goods (the intermediate tenant's) : held, not to
destroy his (distrainor'*) right to the goods replevied, or their substitute:
Jiiuison v. Reifsnyder, 1 Outer. 136, s. c. 10 W. N. C. 381.

As to the construction of the word "shall." in a statute, see Common-
wealth v. Marshall, 3 W. N. C. 182 (C. P.), and cases there cited.|'

Cited by counsel, 27 Smith 427 ; 1 W. N. C. 616.



[*PHILADELPHIA, MAT 1, 1841.] [*468

Hugg and Another against Brown and Others.

IN ERROR.

A judgment was obtained in the District Court, in 1837, by A. against B.
and C., on three promissory notes given by B. and C. to A. Afterwards A.,
by writing tiled, assigned part of the judgment to K. and F., and the balance
to D. H. A scire facias was then issued on this judgment in the name of A.
to the use of D. H., to which the defendants filed an affidavit of defence,
setting forth (1st), That they had brought a suit against K. and F. in 1837,
which was arbitrated, and that K. and F. had set off two of the notes upon
which the original suit was obtained ; that the arbitrators had allowed the
set-off and made an award accordingly; from which they (the deponents)
had appealed. (2) That a foreign attachment had been commenced against
the deponents by K. and F. upon the judgment in this case, or on the three
notes upon which judgment was obtained ; which attachment was still pend-
ing and undetermined. (3d) That the said D. H. was indebted to the
defendants in a larger sum than the balance of the judgment, viz., in the sum
of $900, being the amount of a draft in favor of the defendants accepted by
him for a valuable consideration; which they claimed to set off; and that
K. and F. were indebted to the deponents in a sum fully equal to that part
of the judgment assigned to them, viz., the amount of their acceptance of
the deponent's draft. at 60 days, for $303, dated, &c., which also they claimed
to set off: Held (1), That the deponents could not avail themselves in this
action of the award of arbitrators appealed from, or of the alleged foreign
attachment as a defence. (2) That the alleged claim of set-off of the two
acceptances of K. and F. and D. H. was admissible as a defence ; and there-
fore that the court below erred in giving judgment for want of a sufficient
affidavit of defence.

ERROR to the District Court for the City and County of Phila-
delphia.

This was a scire facias quare executionem now, &c., brought to
June term 1839, of the District Court, by William Brown and
others, trading as John A. Brown & Co., for the use of David W.
Ilulings against Henry Hugg and R. J. Bell.

*The original action was brought by Brown & Co. against r*
Il-igg & Bell, to June term 1837, upon three promissory ^
i - es drawn by the defendants in favor of the plaintiffs; one dated
i f ,.:hidelphia, August 25th 1836, at 8 months, for $195.56; the



469 SUPREME COURT

[Hugg v. Brown.]

second dated October llth 1836, at 6 montns, for $297.18; and
the third dated September 2Sth 1836, at 8 months, for $105.88.
Judgment was obtained on the 22d of July 1837, and on the same
day the damages were assesssed at $607.21. On the 15th of
December 1838, the following assignment was filed of record:

" For value received we do hereby assign, transfer, and set over
to Keckler & Forney, or order, or assigns, three hundred and five
dollars of this suit, and the balance of the same to David W. Hul-
ings or order or assigns, without recourse to us ; and prothonotary
will please mark this suit to their use.

JOHN A. BROWN & Co."

This scire facias issued on the 9th of July 1837. On the 12th
of August 1839, the following affidavit of defence was filed:

" Henry Hugg, one of the defendants, being duly sworn, says,
that there is a just defence to the whole of the plaintiffs' claim in
the above suit, the nature and character of which is as follows, to
wit : The record in the original action shows that the judgment was
obtained on three promissory notes :

One at 8 months, dated August 25th 1836, for $195.56

One at 6 months, dated October llth 1836, for 297.18

One at 8 months, dated September 26th 1836, for 105.88

Amounting in all to $598.62

the interest and protest making the amount of the judgment, say.
$607.21, which was obtained July 22d 1837. A firm by the
name of Keckler & Forney, in the same county with David W.
Hulings, and believed to be connected in business with him, were
indebted to defendants, and sued by them or by deponent at
Lewistown, Pa., in 1837. The case was arbitrated, and the said
Keckler & Forney, by their attorney, D. W. Hulings, made a
defence of a set-off before the arbitrators, of two of the notes on
which the above judgment is founded, to wit, the said note of
$195.56, and the one of $297.18. The arbitrators allowed the
said-off, credited the said Keckler & Forney with the said notes,
and gave an award against deponent. Deponent is informed by
his counsel, that on that trial the said D. W. Hulings swore that he
purchased the said two notes absolutely and unconditionally, for
Keckler & Forney. At all events they were used to defeat the
just claim of deponent, by the said D. W. Hulings and the said
Keckler & Forney ; and so much of the said judgment as is
founded on the said two notes of $195.56 and $297.18, has been
*4701 P a ^ ' n manner aforesaid, so long as the said award *of arbi-
J tration is not reversed. Deponent has appealed from the
laid award, but at the last information he received from his counsel,



1341.] OF PENNSYLVANIA.

[Hugg c. Brown.]

the case had not been tried. The said D. W. Hulings was coun-
sel for the said Keckler & Forney, in deponent's suit against them,
and since the said appeal, has given deponent's counsel notice, that
he shall offer in evidence the said notes on which this judgment is
founded, as a set-off on the trial of this suit against the said Keck-
ler & Forney. Deponent further says that a suit by foreign attach-
ment has been commenced against the said Hugg & Bell, in
Lewistown, to the use of the said Keckler & Forney, on the judg-
ment in this case, or on the three identical notes on which the
judgment in this case was obtained ; which is still pending, and
undetermined, as deponent is informed by his counsel at Lewistown,
and verily believes. Deponent further says, that by the order of
plaintiffs, filed in this case, the said Keckler & Forney are interested
to the extent of $305 in this judgment, and the said Hulings in
the balance; and that the said Hulings is indebted to the said
defendants in a larger sum than the balance of the said judgment,
to wit, in the sum of $900, besides interest and costs, being the
amount of a draft in favor of defendants, accepted by him for a
valuable consideration ; and so much of which as is necessary to
balance the said Huling's interest in this judgment, deponent claims
to set off against the same. Deponent further says, that in a suit
now pending in favor of the said Hugg & Bell against the said D.
W. Hulings, at Lewistown, he, the said Hulings, has given notice
under date of August 4th 1838, to deponent's attorney, that he
will under the pleas of payment and set-off in the said suit, give in
evidence the same identical notes on which the judgment is founded.
Deponent further says, that the said Keckler & Forney, to whom
$305 of this judgment have been assigned, are indebted to defend-
ants in a sum fully equal to that amount, to wit, the amount of
their acceptance of Hugg & Bell's draft at 60 days for $303, dated
March 20th 1837, on which expenses and interest from May 1837,
are due, making a sum larger than Keckler & Forney's interest in
the judgment ; and which or so much thereof as may be necessary
to cancel their interest in this judgment, defendants claim to set
off. Deponent further says, that the scire facias to revive this
judgment is for the use of D. W. Hulings alone ; whereas it ap-
pears by the order filed, that he is only interested in the balance
of the said judgment after deducting $305 assigned to the said
Keckler & Forney."

A rule was obtained to show cause why judgment should not be
entered for want of a sufficient affidavit of defence, which was made
absolute on the 3d of December 1839. This writ of error was then
taken.

The following errors were assigned :

*1. The court below erred in deciding that the affidavit
of defence was not sufficient to prevent judgment being en-
tered against the defendants under the act of 28th March 1835.

6 WUAKTON 30



471 SUPREME COURT [March Term,

[Hugg v. Brown.]

2. In entering judgment for plaintiffs below, notwithstanding
the affidavit of defence.

3. The scire facias does not pursue the original judgment.

4. The scire facias does not recite correctly the judgment as it
was at the time it issued.

Mr. Perkins, for the plaintiff in error.

The record shows that the plaintiffs below divided their judgment,
and before the scire facias issued, assigned $305 of it to Keckler &
Forney ; and the balance of the same to D. W. Rulings. John A.
Brown & Co. have no further interest ; and if the affidavit discloses
either a legal or equitable defence to Keckler & Forney's portion,
or to D. W. Huling's, the defendants were entitled to a jury trial.
The affidavit is express, that Keckler & Forney were indebted to
the defendants in a sum larger than their interest in the original
judgment; and the dates show that they were so indebted prior to
their acquiring any interest in the judgment. The affidavit is
equally explicit, as to the indebtedness of Rulings to the defend-
ants, in an amount exceeding his interest in the judgment ; and
only omits to state when he became indebted. But the same strict-
ness is not required in an affidavit of defence, as in a special plea,
at is sufficient if it inform the plaintiff of the nature and character
of the defence, and enable the court to judge if it is such as the law
will recognise. This affidavit informs Hulings that the defence is
a set off of a draft of $900 accepted by him in favor of the defend-
ants ; on which interest and costs have accrued. Of course the
draft must be over due. The principles on which these affidavits
are to be construed, are fully considered by this court, in Sleeper v.
Dougherty, Potts v. Smith, and Potts v. Crabb, 2 Whart. 177 ;
Watkins v. Phillips, 2 Id. 209 ; West v. Simmons, Id. 261 ; Stitt
v. Garret, 3 Id. 281 ; Milne t>. Hamilton, Id. 284 ; Bacon v. Sand-
ers, 4 Id. 148; Creed v. Stevens, Id. 223; Rice v. Morris, Id.
249 ; Walker v. Geisse, Id. 252.

It is no answer to the claims of set-off, that Keckler & Forney
and Hulings are but the equitable owners of the judgment. The
law is well settled in this state, that a legal demand can be set off
against an equitable, and an equitable against a legal, where the
parties claim in their own rights.

This is not an attempt to set off separate debts against joint.
Keckler, Forney and Hulings have no joint claims on the defend-
ants ; but Keckler & Forney have a separate claim against them
(the defendants) to the amount of their (Keckler & Forney's) in-
*4721 terest in this judgment, *to wit, $305; against which the
J defendants claim the right to set off their demand on Keck-
ler & Forney for an equal amount. So, as to the separate interest
of Hulings in the judgment. The defendants meet it in the same



1841.] OF PENNSYLVANIA. 472

[Hugg . Brown.]

way. The affidavit shows him indebted to them in a sum larger
than his interest in the judgment.

The scire facias must pursue the original judgment. 2 Penn.
Pract. 337. Arrison v. The Commonwealth, 1 Watts 374. But
in this case, it neither recites the original judgment correctly
which was not for the use of any third party nor does it correctly
recite the state of the judgment at the time it issued ; which had
been assigned, not for the use of David W. Hulings, but for the
use of Keckler & Forney in part, to wit, $305, and only the balance
to David W. Hulings.

Mr. Watts, contra.

The arbitrators had no right to allow the notes to be set off after
judgment had been obtained upon them. The present defendant,
knowing this, appealed from the award. As to the foreign attach-
ment, all that is stated in the affidavit is mere hearsay. An
affidavit of defence must be positive. These are separate claims of
Keckler & Forney and Hulings, which can't be set off. We know
but one legal plaintiff who has a right to proceed on the scire
facias. Nor can separate claims against them be set off in a suit
by both. Watson v. Hensell, 7 Watts 346. Where a suit is pend-
ing, the plaintiff cannot set off his claim in a suit where he is
defendant.

KENNEDY, J., delivered the opinion of the court.

The errors assigned, taking exception to the writ of scire facias,
do not appear to be sustained in point of fact, and therefore require
no further notice. The circumstance of its being stated to be for
the use of D. W. Hulings alone, when, by the assignment filed in
the prothonotary's office, of the judgment, it appears to have been
assigned to him only in part, is an immaterial matter.

The first two errors, which relate to the rendition of the judg-
ment by the District Court in favor of the plaintiffs below against
the plaintiffs in error, who were the defendants there, present the
same question, and are the only errors which demand our parti-
cular attention as having anything in them. The court undertook
to render or direct the judgment to be entered in this case, under
the act of 20th of March 1835, providing, inter alia, that " in all
actions of scire facias, on judgments, &c., it shall be lawful for the
plaintiff, on or at any time after the third Saturday succeeding the
several return days thereinbefore designated, on motion to enter a
judgment by default, notwithstanding an appearance by attorney,
unless the defendant should previously have filed an affidavit of
defence, stating therein the nature and character of the same."
An affidavit of defence, made by one of the defendants below, was
filed here in due time ; but the plaintiffs excepted to the sufficiency



473 SUPREME COURT [March Term,

[Hugg v. Brown.]
lli> Because, as tne J *alleged, it did not contain " the



nature and character" of a defence sufficient in either law or
equity to prevent them from recovering the amount of their judg-
ment upon which the scire facias was sued out. And the court
being of this opinion, permitted the plaintiffs to enter judgment as
if no affidavit had been filed. The court, according to the con-
struction, put on the act, by this court, in West -y. Simmons, 2
Whart. 261, acted rightly in doing so, provided the affidavit filed
did not contain a statement of the "nature and character" of a
defence sufficient to bar the recovery of the plaintiff's demand, in
part at least, if not in whole. The only question, therefore, to be
decided, is, does the affidavit set out a good defence in the manner
and form required by the act of assembly made in this behalf. The
affidavit contains, in the first place, an allegation that a certain
portion of the claim made by the plaintiffs in the scire facias, nearly
five-sixths thereof, was extinguished by a defalcation claimed by the
firm of Keckler & Forney, for whose use in part, as it is alleged,
the scire facias has been sued out here, and as would appear to be
the fact, by an assignment of the plaintiffs named on the record, to
them, which is filed with the papers in this case, in a suit brought
by the defendants below against the said Keckler & Forney, at
Lewistown, Pennsylvania ; and that this latter suit was tried before
arbitrators, who allowed the defalcation so claimed. But then it is
also stated in the affidavit that the defendants below in this action
appealed from the award of the arbitrators in that suit, and that
that appeal is still depending. This, therefore, would seem to pre-
clude them from setting up the defalcation, allowed by the decision
of the arbitrators, as a defence in this action, as it would in effect
be withdrawing their appeal, which by the first section of the act
of the 28th of March 1820, cannot be done without the written
consent of the adverse party first had and obtained. See Good v.
Good, 5 Watts 117.

The affidavit of defence, in the second place, contains an allega-
tion that the said Keckler & Forney have sued out a writ of foreign
attachment, at Lewistown, for their use, founded upon the judg-
ment, upon which the scire facias is sued out here, against the said



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 53 of 75)