Clements v. Dempsey

Citations

• 7 Pa. Super. 52
• 1898 Pa. Super. LEXIS 231

Syllabus

<p>Practice, G. P. — Motion for judgment on bond for collateral acts — Essentials of statement — Measure of damage.</p> <p>To entitle a jfiamtiff in an action upon a bond, conditioned for tbe 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.</p> <p>Even where a cause of action may be conceded from the statement the measure of damages is not the penalty of the bond, but the actual damages sustained in the particular case.</p> <p>The statement alleged that a writ of replevin had been quashed (and there was therefore no judgment), the averment was “ that by reason of said writ of replevin the constable was prevented from collecting rent, to wit: $77.00, and costs to amount of $37.00.” This averment was met by a direct and positive affirmance that the rent had been paid by the tenant with costs of the distress. Held, that the plaintiff was not entitled to judgment for want of a sufficient affidavit of defense.</p>