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Reports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 5) online

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reference, upon two of the defendants, viz., Samuel Brooke and
Thomas Jones, who did not attend. Benjamin Tilghman, Esq.,
appeared as attorney and counsel of Spicer Jones, one of de-
fendants, but disclaimed any authority to appear for, or act on
behalf of the other defendants. The arbitrators present then
appointed and chose John Graves, an arbitrator in the room of
Thomas Williamson, the other arbitrator, who did not attend ;
and the said John Graves, being notified of said appointment,
attended : and the arbitrators being all duly qualified, pro-
ceeded to hear the plaintiff, with his vouchers and evidence ;
and also the allegations of the counsel for Spicer Jones, one of
said defendants, and upon due examination and consideration
of the evidence adduced to us, do find that there is three thou-
sand one hundred and ninety-three dollars and seventy-eight
cents, due from the defendants to the plaintiffs."

This award was duly filed, and the proceedings being under
the act of 1810, was docked as a judgment.

June 22, 1831, after argument, the motion for a rule, &c.,
f ^n to *strike off the rule of reference, and the proceedings
' under it, was denied.

Whereupon this writ of error was sued out, and the follow-
ing specifications filed :

1st. The declaration was filed when there was no defendant
in court.


April 16, 1835.] OF PENNSYLVANIA. 251

[Jones and others v. OrumJ

2d. The declaration was filed when the plaintiff himself, by
his own laches, was out of court.

3d. The rule of reference was entered without there being
any suit actually pending, or any action regularly entered, or
declaration regularly filed.

4th. The proceedings of the arbitrators are irregular upon
their face.

5th. Judgment has been entered against two defendants,
never in court.

6th. The court below erred in refusing to strike off the rule
of reference, and proceedings under it.

The plaintiff in error assigned the general errors.

The following opinion was delivered in the court below, by
Judge Darlington, on a motion to strike off the judgment and
rule to plead.

The plaintiff issued a capias against defendants, returnable
to January Term, 1820, and caused it to be indorsed with the
words " no bail required/' according to the eleventh then ex-
isting rule of this court, which directed in such cases, that
the sheriff should serve the defendant with a copy of the writ,
as in case of a summons, and the defendant on such service
and in all cases, where common bail is ordered by a judge,
shall subscribe a note with these, or the like words : " I hereby
empower the prothonotary to enter my appearance to this ac-
tion," which subscription shall be attested by the officer who
serves the writ : the sheriff may then return " cepi corpus, and
the defendant's appearance accepted," or "cepi corpus, and
defendant discharged on common bail ;" then the defendant
may be as effectually in court as if he were in custody, or had
perfected special bail. The prothonotary may enter his ap-
pearance ; a declaration may be filed ; and he may be ruled
to plead, or he may rule the plaintiff to declare ; but before
the defendant is actually in court, or has authorized his ap-
pearance, then in suits commenced by capias, he cannot be
called on to plead, nor can any judgment be entered for want
of a plea.

In cases of summons, according to long established practice,
it is true, a judgment by default may be entered, but this is a


251 SUPREME COURT [Philadelphia!

[Jones and Others v. Orum.]

departure from the terms of the act of assembly of 20th
March, 1724, which provides that if the defendant does not
appear, but makes default, the plaintiff may file a common ap-
|>earance for him, and proceed to judgment by nihil dicit. The
act authorizes the plaintiff to enter the appearance, and the
practice sanctions the judgment if he omits *it. Mor-
rison v. Wetherill, 8 Serg. & Rawle, 502. But in the
case of this capias, the defendant has not authorized his ap-
pearance to be entered. No act of assembly authorizes the
plaintiff to do it, nor can he do it at his pleasure; inasmuch as
the defendants have given no bail to the sheriff, nor are they
in custody.

The sheriff in this case, instead of causing the defendants to
subscribe the note, prescribed by the rule of court, or in
default thereof taking the body, simply returned " cepi corpus
and defendants discharged on common bail."

In our opinion, this did not authorize the plaintiff or the
prothonotary to enter the defendants' appearance, or to con-
sider them in court, without their consent. And therefore,
the rule to plead entered ten years thereafter, on the 9th of
March, 1830, and the judgment entered thereon, on the 4th
May, 1830, are irregular.

Rule to show cause made absolute.

Dittingham, for the plaintiffs in error.

The process never having been served according to the rules
of court, the defendant was not amenable to it. After the
return day, the suit it-self was at an end. Besides, if the pro-
cess had been regularly served, a delay of ten years to move
in it, is such laches, as the court cannot tolerate. He cited
and commented on Hertzog v. Ellis, 3 Binn. 209 ; Moulson v.
Rees, 6 IK 32 ; Brown v. Scheaffer, 6 Ib. 177 ; Paul v. Pur-
cell, 2 Browne, 20; Thomas v. Hopkins, Ib. 145; Clemson v.
Beaumont, Ib. 215; Maus v. Sitesinger, 2 Serg. & Rawle,
421 ; Phillips v. Oliver, 5 Ib. 419; Sharpe v. Kilgore, 3 Ib.
387 ; Flanegan v. Negley, Ib. 498. These decisions were
under the law as it stood before the act of 1820, and estab-
lished that a rule of reference might be entered before the re-


April 16, 1835.] OF PENNSYLVANIA. 252

[Jones and others v. Orum.]

turn of the writ, or bail entered, or declaration filed. But
could the plaintiff arbitrate after he had discontinued ? or put
the case of summons and nihilf Here the plaintiffs virtually
discontinued. He was out of court by his own laches, in not
declaring v for a year. This is the English rule. Sell. Prac.
221. He further cited, Vitry v. Dauci, 3 Rawle, 1 ; Brown v.
Kelso, 2 Penn. Eep. 427.

Conrad and Kittera, for the defendant in error.

The mode of serving the capias pointed out in the rule of
court, does not exclude such other as the plaintiff may direct.
Here the order indorsed on the writ, is defendant's appearance
accepted. The plaintiff may have given special orders, or the
defendant may have signed a paper, authorizing his appearance
to be entered, which has been lost.

2. Mr. Tilghman's appearance was good for all the defend-
ants. There cannot be a special appearance, for one in suit
against partners. Taylor v. Coryell, 12 Serg. & Rawle, 250.
His declaration of his want of authority is no evidence of the

*3. The legislature have not altered the law in any
respect, except that a plaintiff cannot arbitrate before
return day, or without a declaration. Suppose defendant arbi-
trates before return day, and afterwards a nihil is returned, it
is good. If there was no appearance, still there was an action
brought, and a rule of reference might be entered. They
further cited, Phelps v. Johnson, 4 Cow. 61 ; Salmon v. Davis,
4 Binn. 375.

The plaintiffs by their motions, considered the case in court,
and therefore cannot complain of lapse of time.

Chauncey in reply, argued the matter, as it stood first, on the
entry of the rule of reference, and secondly, on the appearance
of Mr. Tilghman. He contended that it never had been
decided, that a rule of reference could be entered after process
returned not served ; that here was a lapse of ten years, with-
out continuances, or even delaration. If this could be tolerated
the limitation law would be virtually abolished. How did


253 SUPREME COURT [Philadelphia,

[Jones and others v. Orum.]

Mr. Tilghman's appearance alter the state of things? It was
amended by order of the court, and the effect of that order,
was to destroy all he had done as attorney for any except 8.
Jones, and he appeared for him only. He cited 2 M'Cord,
311, to show that before trial, the court will never refuse leave
to amend, when the attorney shows he had no authority. A
partner after dissolution, cannot appear for the others without
express authority. This principle seems settled by the analo-
gous decisions of this court, on the statute of limitations.
Levy v. Hippie, 17 Serg. & Rawle, 126.

The opinion of the court was delivered by

SERGEANT, J. Several errors in the proceedings below have
been assigned in this court, which result in the question,
whether the award against all the defendants was valid. The
plaintiff proceeded originally by capias ad re&pondendum in-
dorsed " no bail required," but it was not served according to
the rule of court, the defendants not having subscribed a note
in writing, empowering the prothonotary to enter their appear-
ance, and therefore the return of the sheriff of " cepi cm-pus,
and the defendants discharged on common bail," was nugatory,
and did not authorize an appearance to be entered. The court
below so decided, when they ordered the rule to plead and
judgment to be struck off, and we think rightly. The sheriff
was bound either to take such a note in writing, as would
justify an appearance to be entered, or to hold the defendants
to special bail. Barnard . Field, 1 Dall. 348 ; 3 Binn. 286.
It is suggested that such a note may have been signed, and
afterwards lost. If this were so, the fact might have been
shown to the court below, on the hearing, and if satisfactorily
established, would no doubt have produced a different result.

After this order of the court below, the plaintiffs entered a
ru ^ e ^ * re ^* erence under the arbitration act, and caused
notices to be served on the defendants, and it is in-
sisted now, on the authority of Flanegan v. Negley, and similar
cases, that a suit having been once entered on the docket, the
rule of reference was regular, though upwards of ten years had
elapsed after the writ was first taken out, and returned without

April 1G, 1835.] OF PENNSYLVANIA. 254

[Jones and others t;. Orum.]

being duly served, and not a single step had been taken by the
plaintiffs during that period, to continue the action. If this
were so, it would certainly present an extraordinary state of
things in the management of suits. A writ might be taken
out, and never served, and the plaintiff lie by nearly double
the period imposed by the statute of limitations, and then the
plaintiff treat the action as pending, and date its existence from
the first writ. This would introduce all the mischiefs the
statute of limitations was intended to guard against, and expose
a party to the necessity of contesting the validity of a claim,
after more than six years had elapsed, and when his vouchers
were lost and witnesses dead. Even where the replication of
a writ taken out and continuances since, is allowed to avoid
the plea of the statute of limitations, no case has gone to the
extent of time, which had passed in this case. In Schlosser
v. Lesher, 1 Dall. 415, the Court of Common Pleas, Shippen,
president, considered a period of two years and a half from the
original summons not too long, and a case is there referred
to in 1 Sid. 53, where Twisden, Justice, says he had known a
suit continued by latitat for five years before the bill filed, and
Herne, secondary, said a latitat may be continued seven years.
If even the latter time were adopted and the continuances here
are a matter of form, it is still far short of the interval passed
over. If therefore, the case be considered with a view to the
principles applicable to the statute of limitations, and the
doctrine of entering continuances, upwards of ten years is
too long a period, and the action must be considered as discon-

But though some analogy exists to cases under the statute
of limitations, there are material differences between the com-
mon law principles applicable to that statute, and those which
regulate the right of arbitration, under the act of 1810, and its
amendment of the 28th of March, 1820, and this case depends
on the true construction of these acts, rather than on corre-
sponding principles in other matters, existing at the common

The arbitration act of 20th of March, 1810, had not been
long in use, before some of its features were found in prac-


254 SUPREME COURT [Philadelphia,

[Jones and others r. Orum.]

tice, to present much inconvenience and incongruity. In the
cases of Hertzog v. Ellis, 3 Binn. 209 ; Flauegan t>. Negley, 3
Serg. <&Rawle, 498 ; Sharp v. Kilgore, 3 Serg. & Rawle, 387 ;
.Brown r. Scheaffer, cited Ib., the court, under the authority
m the first section, to arbitrate " at any time after the entry
of the suit," felt themselves compelled to decide, that a rule
of reference might be taken out before the return day of the
writ, whether a capias or summons, even though *the
writ were never served ; so that there might be judg-
ment and execution before the return day of the original pro-
cess, and legal proceedings were carried on against a defend-
ant, in a suit in which he never was served with a writ, and
was not, and might never be regularly bound to appear in
court. So also, the act not having required the plaintiff to
file a declaration or statement, it was held that* it was not
necessary ; in consequence of which it was often difficult to
discover after the award, in what cause of action it had been
made, and in Bazire v. Barry, 3 Serg. & Rawle, 461, this
court, on a question of costs, was obliged to resort to parol
evidence, to ascertain the amount of the plaintiff's claim be-
fore the arbitrators. These inconveniences induced this court,
in Bazire v. Barry, in Flanegan v. Negley and other cases,
about the same period, to point out in forcible language, the
necessity of some legislative amendment ; and on the 28th
March, 1820, an act was passed, which seems to have been in-
tended to effect the desired object. It declares that, " no rule
of arbitration shall be entered or taken out, until after the
first day of the term, after the suit or action may have been
commenced, nor until after a declaration or statement of the
cause of action shall have been filed." Now, by the first day
of the term, the plaintiff may compel a return of his process,
and ascertain definitely, whether it has been served or not ;
and if the process has not been served, and the defendant is
not in court, nor is bound to be, it seems to me, the legisla-
ture intended the plaintiff should not be permitted to arbi-
trate; otherwise the act of 1820, goes but a little way to
correct the mischiefs formerly existing, under the act of 1810,
so much complained of. All the decisions relied on were prior

April 16, 1835.J OF PENNSYLVANIA. 255

[Jones and others v. Orunw]

to the act of 1820; none have occurred since, to sanction the
former practice, nor could they, I apprehend, without marring
in a great measure the principal design of the act of 1820,
which was to restore the symmetry of the law, by requiring a
permanent declaration in writing of tl.e plaintiff's cause of
action, before it went to a tribunal to be decided, and a service
of the process, before the defendant could be considered as lia-
ble to legal proceedings in the suit, commenced by that process,
and deriving its legal existence from it. At all events, I have
no doubt, that if a plaintiff suffered ten years or more to elapse
after a writ returned without being served, and without taking
any step in the cause, the suit must be considered as discon-
tinued ; and when a suit is discontinued, the plaintiff cannot
enter a rule of reference.

It is further contended by the plaintiff below, that if there
were an irregularity in the proceedings, it w r as waived by the
general appearance entered by Mr. Tilghman for all the de-
fendants, on the 9th of April, 1831, after the rule of reference
was entered, but before the appointment of arbitrators. And
if this appearance had so remained uncorrected, though at the
instance of one defendant only, and under circumstances of
considerable suspicion, as to the motive *of that de- r ^ OF -nn
fendant, in instructing Mr. Tilghman so to act, it '-
might perhaps have the effect contended for, without meaning,
however, to express any opinion as to the power of one partner
to authorize an appearance for another, either before or after
dissolution, upon which some arguments and authorities have
been adduced. But this appearance, though general in the
first instance, was amended by the court below, and stands
now on the record before us, under that amendment as a
special appearance for S. Jones only, as of the date of the
original appearance. This the court below, in their legal dis-
cretion, had power to do, and we must take it as it stands in
the record, presuming they had good reasons for what they did.
Kennedy v. Wachsmuth, 12 Serg. & Rawle, 171. It is, how-
ever, sufficiently evident, that if the plaintiff was, for a short
period, justified in considering Mr. Tilghman as appearing for
all the defendants, measures were speedily taken to apprise


256 SUPREME tXH'UT [Philadelphia,

[Jones and others v. Orum.]

him of the mistake. Two days after the appointment of ar-
bitrators by the plaintiff's attorney and the prothonotary, a
motion was made to strike off the rule of arbitration; before
the arbitrators, Mr. Tilghmau appeared as attorney for S.
Jones only ; and the plaintiff seems to have proceeded in the
arbitration on the strength of his service of the rule, not on
the general appearance of Mr. lilghman, which he was then
aware was withdrawn. If an attorney has erroneously ap-
peared for a party, I know no reason why the mistake may not
be corrected, provided it be done in due time, before any step
taken in pursuance of it, and without occasioning loss or preju-
dice to the other party. See Haslett v. Street, 2 M'Cord, 311.
I do not perceive in this case, that the plaintiff in his proceed-
ings relied on this general appearance, or that it was not cor-
rected in proper season. I am, therefore, of opinion, that the
award was improperly made against all the defendants, and
that the judgment thereon be reversed.

Judgment reversed.

Cited by Counsel, 3 H. 294.

Cited by the Court, 6 W. 529 ; 4 C. 262 ; 12 C. 474.

[*257] *[PHTLADELPHIA, APRIL 16, 1835.]

Troubat against Hunter.


A. and B. entered into an agreement under seal, which recited that the
former had purchased from the latter a house and lot in the city of Phila-
delphia : That the wife of C., the former owner of one-fifth of the property,
had not executed the deed made by her husband and others, to B. ; and that
consequently, if she should survive her husband, she would be entitled to
dower in the same, and that it had been agreed that a certain sum being one-
third part of a fifth of the consideration-money should remain in the hands
of A. until the decease of the wife of C., or until she should release her
dower. A. then covenanted to pay to B. the sum so retained on the decease
of the wife of C. or whenever a release of dower duly executed by her, should
by the said B. be produced and delivered to him "with lawful interest on the
said sum, provided the same shall not exceed eighteen months from the date"
of the agreement. The wife of C. died on the 17th of October, 1826, and the


4/jn716,1835.] OF PENNSYLVANIA. 257

[Troubat v. Hunter.]

first notice which A. received of her death and the first demand made upon
him for payment of the money, was the institution of an action of covenant
on tlie agreement, on the 13th of August, 1832.

Held, that the plaintiff 1 was entitled to recover the principal sum retained
by the defendant, with interest from the death of the wife of C.

ON a writ of error to the District Court, for the city and
county of Philadelphia, it appeared that this was an action
of covenant brought by William S. Hunter against John
Troubat, founded upon an agreement under seal, bearing date
the 4th day of December, 1810, of which the following is a

" To whom these presents shall come, or may concern :
whereas, I, John Troubat, of the city of Philadelphia, mer-
chant tailor, have purchased from William S. Hunter and
Thomas Armstrong, a house and lot on the west side of Second
street, between Walnut and Spruce streets, in the said city,
belonging to the representatives of James Hunter, deceased.
And whereas the wife of James G. Hnnter, one of the said
representatives, hath not executed the deed to the said Wil-
liam S. Hunter made by her said husband, and others, repre-
sentatives of the said James Hunter, for three-fifths of the said
premises, consequently if she should survive her said husband,
she would be entitled to dower in the same; and whereas, it
is the agreement that the sum of three hundred and sixty-one
dollars and eighty-nine cents, being one-third part of a fifth of
the consideration-money, should remain in my hands until the
decease of the wife of the said James G. Hunter, or until she
should by an instrument in writing, duly authenticated, release
her right of dower in the said premises ; now know ye, that I,
the said John Troubat, for myself, my heirs, executors, and ad-
ministrators, do hereby covenant to pay unto the said William
S. Hunter, his executors, administrators, or assigns,, or the per-
son or persons legally entitled to the same, the *afore-
said sum of three hundred and sixty-one dollars and *
eighty-nine cents, on the decease of the wife of the said James
G. Hunter, or whenever a release of dower executed by her,
and duly authenticated, shall be by him the said William S.
Hunter produced and delivered with lawful interest on the said

VOL. v. 22 337

258 SUPREME COURT [Pliiladdpliia,

[Trouhat v. Hunter.]

sum, provided the same shall not exceed eighteen months from
the date thereof."

The following receipt was indorsed on the agreement :

" Received from Mr. John Troubat, the sum of thirty-two
dollars and fifty cents, the interest due on the within covenant
from said Troubat.

July 15, 1820. (Signed,)


The plea was covenants performed with leave to give the
special matter in evidence.

Replication non perf. and issues.

The jury found a verdict for the plaintiff and assessed dam-
ages at five hundred and two dollars and forty-two cents,
"subject to the opinion of the court below, as to the claim of
interest, whether the same is to be calculated from the 17th
October, 1826, or from 13th August, 1832; and also whether
the defendant has a right to deduct the widow's claim of
dower." They further found that the article of agreement
dated 4th December, 1810, as set forth above, was entered
into between the parties : That the wife of James G. Hunter
died the 17th of October, 1826, and that the institution of
this suit, which was on the 13th of August, 1832, was "the
first notice of the death of Mrs. Hunter aforesaid, and the
first demand made on the defendant by the plaintiff for pay-

The court below gave judgment for the whole amount of the
verdict, which included the principal sum of three hundred and
sixty-one dollars and eighty-nine cents, and interest from the
17th of October, 1826, in favour of plaintiff below; and filed
their opinion of record.

The plaintiff in error assigned for error:
If. That the court below erred in their opinion, that the
proviso of the agreement of the 4th of December, 1810, had
respect only to the interest that accrued before the principal
lecame due.

2d. That the court erred in saying that interest was due

April 16, 1835.] OF PENNSYLVANIA. 258

[Troubat v. Hunter.]

under the said agreement, from the 17th of October, 1826, the
day when the widow of James G. Hunter died.

3d. That the court erred in giving judgment for the whole
amount of the verdict against the said Troubat.

The case was submitted to this court on written arguments
by Law, for the plaintiff in error, and by
Stroud, for the defendant in error.

* Argument for the plaintiff in error. The question-
is, whether the plaintiff in error under the agreement
of the 4th of December, 1810, is liable for more than the prin-
cipal sum, three hundred and sixty-one dollars and eighty-nine
cents, with interest from the commencement of the suit, 13th
August, 1832, or whether he is bound to pay interest from the
17th October, 1826, when the widow Hunter died. The com-
mencement of the suit being the first notice of her death, and
the first demand of payment.

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