Commonwealth ex rel. John T. Baldwin & Co. v. Yeisley

Citations

• 6 Pa. Super. 273
• 1898 Pa. Super. LEXIS 145

Syllabus

<p>Public officers — Constable's bonds — Cause of action for neglect.</p> <p>In an action of assumpsit on a constable’s official bond a sufficient cause of action is disclosed where the breach alleged was that an execution was placed in the constable’s hands by virtue of which he had made levy upon goods of the debtor which would have sold for more than enough to satisfy the execution but that he neglected and refused to sell them but made return “ no goods found subject to levy and sale.”</p> <p>Practice, C. P. — Amended statement and second rule for judgment.</p> <p>It is not error to permit a plaintiff to withdraw his original statement and to file another, averring the elements of damage with greater particularity and verified by affidavit as required by rules of court. No new cause of action being introduced such action is a proper exercise of the power to permit amendments. Nor is there error in granting a second rule for judgment after the defects in the original statement have been cured by amendment.</p> <p>Practice, C. P. — Suit on constable's bond demands affidavit of defense.</p> <p>An action on a constable’s official bond conditioned for the performance of collateral acts or official duties is within the affidavit of defense act.</p> <p>Constables — When demand requisite under act of 1772.</p> <p>The written notice or demand required to be made by the Act of March 21, 1772, 1 Sm. L. 365, only applies where the constable acts in obedience to his warrant or writ; it has no application where the cause of action is based on his open contempt of and disobedience to his writ.</p> <p>Constable's bond — Proper entry of judgment — Power of court to control.</p> <p>While there may be force in the contention that in strict practice two judgments should be entered in a suit on a constable’s bond, one in favor of the commonwealth for the amount of the bond and one in favor of the plaintiff for his damages, it does not appear that the constable has reason to complain