Robinson & Smith v. White

39 Pa. 255, 1861 Pa. LEXIS 191

• Court: Supreme Court of Pennsylvania
• Decided: May 6, 1861
• Status: Published

Opinion

The opinion of the court was delivered,

by Thompson, J.

The defendants below showed a distress and sale for the rent sued for. The plaintiffs rebutted by showing that Smith, one of the defendants, and the principal debtor, had denied the validity of that distress, and received from him the value of the property seized. Now, as this barren distress would not, on the authority of Quinn v. Wallace, 6 Whart. 467, have been sufficient to preclude a second distress for the same rent, the first having proved unavailing by the act of the party owing the rent, why should it be a bar in a suit against the same party and his bail ? The plaintiff was deprived by the act of the principal from receiving satisfaction under the distress. Can the principal and surety, sued together now, aver that it was a satisfaction, although by the act of the former it was not ? We surely think they cannot. It is not the case of Freeman v. Caldwell, 10 Watts 9. That was a case in which a stranger’s property was sold, and the judgment satisfied by the bid. The failure of the title did not restore the judgment or the debt, for obvious reasons, among which was the fact that in judicial sales there is no warranty. But the failure ivas not by act of the defendant; he did not object to the sale of the property, and he could legally claim the satisfaction of the judgment. But here the principal debtor defeated the satisfaction, and now sets up his act to enable himself to escape ultimate liability, both to his landlord and his bail. This cannot be done.

Judgment affirmed.