Pennsylvania. Supreme Court.

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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of April 1840, the provision in question in the very emergency for
which it was intended to provide.

2. Other considerations may be suggested upon this branch of
the case, but I pass to the second objection of the defendants, viz.,
that the effect of the resolutions of the 4th of April 1840, is to
debar the plaintiffs of their proceedings, under the 2d section of
the act of the 28th March 1835.

The proviso annexed to the first resolution is relied on to sup-
port this objection. The words of it are as follows: "Provided,
that any person or persons from the passage of these resolutions
until the said above-mentioned day," viz., lotb of January 1841,
"may proceed to recover and collect in gold and silver coin the
liabilities of, and the penalties recoverable from any of the said
banks, according to the common law in force in this Commonwealth
and not otherwise."

The proceedings of this court according to the various acts of
assembly which refer to it, either specially or in common with the
other courts of this Commonwealth, are, in my opinion, according to
the course of the common law, within the meaning of this clause of
the resolutions.

This court was established by the act of the 28th of March 1835.
But no provision was made by that act for the issuing or service or
return of process, or for the manner in which judgments for default
*of appearance should be taken. The chief object of the r*^nq
legislature was to establish a court, and invest it with certain *
jurisdictions and powers to be exercised according to the laws in
force relative to proceedings in courts of justice. Without the aid



603 APPENDIX.

[Hall v. Bank of the United States.]

of the rules of the common law and of other acts of assembly, it
would be impossible for the court to exercise its jurisdiction in a
single case.

The second section of this act is in its nature a mere regulation
of practice. It was in effect, (I refer to the time of the passing of
the act), supplementary to the act of the 20th of March 1724-5,
and now it sustains the same relation to the act of the 13th of June
1836, which has supplied the act of the 20th of March 1724-5.

From the origin of the court, it has been the constant practice to
issue process, and upon its return, to file declarations, take judg-
ments for default of appearance, or by niliil dicit, or proceed to
issue, and trial in the same manner as if those acts of assembly had
been specially extended to this court.

But by the act of the 20th of March 1724-5, and in fact by the
principles of the common law, the defendant, if he appeared, might
by pleading in due course to issue, prevent the plaintiff from obtain-
ing a judgment against him, except upon a verdict, or upon his
confession, which he might withhold until by the course of the prac-
tice he could delay the plaintiff no longer.

The 2d section of the act in question, in certain cases, gives to
plaintiffs a power which they did not previously possess. The
appearance of the defendant is not sufficient of itself to prevent the
plaintiff from having a judgment by default in the cases specified in
that section, nor has the defendant the right by plea merely, to put
the case before a jury. He must, when the plaintiff complies with
the requisitions of the section, file an affidavit of his defence,
"stating therein the nature and character of the same."

This provision, then, taken in connection with the other acts of
assembly, supplies merely a new ground of default, after appearance,
without taking from the party the right to sign judgment for default
of appearance, or to enter a common appearance and sign judgment
by nihil dicit.

The practice, when conducted strictly according to the joint effect
of the several acts mentioned, requires the plaintiff to sue his pro-
cess, and have it served and returned according to the act of the
13th of June 1836. If the defendant fail to appear, his next step
is to file his declaration, and take judgment for default of appear-
ance. If the defendant appear, and the plaintiff's cause of action is
within the 2d section of the act of the 28th of March 1835, he may
file the copy required, and on the third Saturday succeeding the
return day, move the court for judgment, if the defendant do not
file, in the meantime, an affidavit of defence. If the defendant file
a sufficient affidavit of defence, the plaintiff's next step is to take a
rule upon him to plead to the declaration already filed, and proceed
to i 88ue * an d tr i a l according to the course of the practice of
the courts of the Commonwealth.



APPENDIX. 604

[Hall v. Bank of the United States.]

It is true, that it has not been usual to file declarations in cases
within the affidavit law, except when it was expected the defendant
would not appear to the action, and it was important to avoid delay ;
because a declaration is indispensable to the validity of a judgment
for default of appearance ; whereas this court has held, and the
Supreme Court have sanctioned the decision, that a declaration is
not necessary to entitle a plaintiff to move for judgment, for want
of an affidavit of defence. But this is, at most, a mere relaxation
of the practice, and cannot be deemed to change the general char-
acter of the proceedings of the court in such cases.

The question then is, whether proceedings so conducted, are
according to the common law, within the meaning of the resolutions,
or whether the legislature intended to require the adoption of some
other course of proceeding than that with which the courts are
familiar, and which is enforced every day between man and man.
To say so, would be to impute an intention to the legislature, for
which it would be impossible to assign a reasonable or a just motive.

But it is not difficult to discover the meaning of the proviso in
question. The 7th article of the 4th section provides a mode of
proceeding by the holders and proprietors of the notes, bills and
obligations of the bank, for declaring the charter of the bank for-
feited, if it shall refuse to pay the same, when due and demanded,
and persist in the refusal three months. This is a proceeding osten-
sibly in behalf of the Commonwealth, and may have the effect of
proceedings upon a writ of quo warranto. But its practical oper-
ation thus far, has been to give private redress, while it gave
the bank time to meet its engagements. The first of the reso-
lutions in question (taken in connection with the 6th) repeals this
7th article, and thereby deprives the party aggrieved by the default
of the bank, of the power given him by that article to compel the
bank to pay his demand in three months, under the penalty of for-
feiting the charter.

But the clause in the 6th article of the 4th section, which im-
poses the liability, in certain cases, to pay twelve per cent., was
intended to give a benefit directly to the persons holding the notes
or bills of the bank. The use of the clause, however, was not to
give a right of action ; nor does it purport to give an action. By
the common law the right to sue, is consequent immediately upon
the breach of a contract. The object of the provision, as I have
endeavored to show, was to fix by way of compact, the rate at
which the damages in case of a default should be assessed ; leaving
it to the party, to enforce the recovery of them by action at com-
mon law.

The proviso annexed to the first of these resolutions, it seems to
me, icfers to this clause in the 6th article. It was intended to
guard against any construction of the resolutions, which might



605 APPENDIX.

[Hall v. Back of the United States.]

a ^" ec *' either *the common-law right of action, or the dam-
ages which the party injured might recover by action.
Perhaps it was unnecessary, though proper enough to prevent a
doubt, and considered with this reference, the language of the pro-
viso is appropriate. It saves to individuals, the right to enforce
the liabilities of the banks and the penalties recoverable from them
according to the common law in force in this Commonwealth that
is to say by action. The obligation of the Bank of the United
States to pay twelve per cent., I have endeavored to show is not
properly a penalty, any more than the obligation of the other banks
to pay six per cent, for the like default, is a penalty. Still, if
there be a doubt, whether it be not a penalty, the resolutions include
it, because if it be a penalty, it is recoverable by action according
to the common law in force in this Commonwealth : and none the
less so, because the bank might be compelled to pay it by proceed-
ings under the 7th article, or forfeit its charter.

The legislature must be supposed to have known the incidental
effect of the 7th article as a means of redress to individuals ; and
more than this; the object of the 7th article doubtless was, to give
such an advantage to individuals while it allowed some indulgence
to the bank. It imparted to individuals a power, under restrictions,
which, upon general principles, the Commonwealth only could exer-
cise : without relinquishing, however, the right of the Common-
wealth to proceed by its own officers, upon a writ of -quo warranto
to resume the corporate franchise immediately upon a forfeiture for
any cause.

The resolutions thus understood are perfectly consistent with the
rights of individuals. They do not impair the right of action, nor
any right which may be recovered by action ; but they do resume
the Commonwealth's prerogative to proceed against the bank under
the 7th article, for a forfeiture of its charter. The power of the
Commonwealth to do this, cannot be questioned. The expediency
of doing it, is not for the courts to consider.

These observations have been specially applied to the case of the
Bank of the United States, but they are equally applicable to the
other banks, and the corresponding articles in the acts incorpo-
rating them.

3. Another objection of the defendants is thus stated in the
affidavit which has been filed. " That interest is not recoverable,
except from the time when the paper sued on, according to what,
appears on its face, became due and payable : and that if any
extrinsic matter be relied on therefor, the same, if true, should be
duly proved hereafter; and is not to be assumed upon any applica-
tion for judgment, for want of an affidavit of defence."

This objection, so far as it respects the demand for interest on
the notes payable on demand from a day previous to the institution



APPENDIX. 605

[Hall v. Bank of the United States.]

of the suit, it appears to me is well founded. In the case of New-
ton v. The Bank of the United States, the demand of payment is
said to *have been made on the 6th of January 1840, which r*gAp
was a considerable time before suit brought.

To obviate this objection which appears to have been antici-
pated the plaintiffs moved for interlocutory judgments, suggesting
that the fact of demand and the day of demand, may be inquired
of, before a jury of inquiry.

I have never doubted the power of the court to award writs of
inquiry upon judgments rendered under this act of assembly ; and
cases unquestionably within the act, may occur, in which the con-
venient administration of justice may require the court to do so.
It is true, that no case has occurred in which it has been done ;
and that may be accounted for by the fact, that no case has occurred
in which the damages could not conveniently be assessed by the
court or by the prothonotary.

Another reason is, that it has not been the practice to file decla-
rations, except in cases where the plaintiff expected to obtain judg-
ment for a default of appearance on the quarto die post of the
return day of the writ. But a writ of inquiry always supposes a
declaration to have been filed ; and in fact recites the substantial
parts of a declaration. Of course a writ of inquiry could not be
awarded upon a judgment rendered under this (2d) section, where
no declaration has been filed without either altering the form of
the writ, so as to suit it to the state of the record, or introducing
a recital contrary to the truth of the record.

But however this may be, the objection cannot be removed in.
that way, because a writ of inquiry is a mere inquest of office, the
object of which is to inform the conscience of the court, and it
cannot be used to determine matters of fact, which the court, if
they chose to do it, could not determine themselves. 3 Wils. 61,
155 ; Doug. 316, n.; 1 Tidd 513; 2 Whart. 211.

A judgment by default, therefore, would be prejudicial to the
plaintiffs if the court is not already sufficiently possessed of the facts
which constitute the cause of action and right to damages claimed ;
and if they are so, there is no necessity for a writ of inquiry ; it
being merely matter of computation to assess damages at a given
rate per cent, from a given day.

This is a sufficient reason why a writ of inquiry should not be
awarded in these cases ; but as it has been much insisted on by
counsel, I will go a little further into this matter.

In cases where declarations have been filed, and judgments
obtained thereon by nihil dicit, non sum informatus, or for default
of appearance, or on a demurrer, the facts alleged in the declara-
tion are deemed to be confessed ; as much so, as if they had been
found by a jury.



606 APPENDIX.

*

[Hall v. Bank of the United States.]

Now all the precedents of writs of inquiry (containing as they
do a recital of the cause of action alleged in the declaration) prove
that no inquiry about the facts which constitute the cause of action
*fi071 * s * con templated, but only the assessment of damages arising
-" from facts confessed. Hence the defendant is not allowed
to set up any defence before a jury of inquiry, which, if proved,
would defeat the action ; although he may give evidence in mitiga-
tion of damages.

These propositions are so elementary, that an authority to prove
them will hardly be expected, and yet it seems necessary to state
them, to answer the argument properly.

It will not be denied, I presume, that the fact of a demand at
the bank on the day from which damages at the rate of twelve per
cent, are claimed, is a material fact. If the plaintiffs had filed a
declaration alleging the fact of a demand on a particular day, it
would be competent for the defendant to take issue upon that fact,
and if the plaintiffs should fail to prove before the jury a demand
on that day, or some other day previously to the commencement of
the action, as the rules of pleading and evidence require, they
would fail in their action.

The act of the 22d of March 1817, provides expressly, that no
suit shall be maintained on any bank note payable to bearer or
order on demand, unless demand shall have been first made for
payment thereof at the banking house ; and in case of non-pay-
ment, interest shall be recoverable from the time of making such
demand.

Besides, the act incorporating the Bank of the United States, in
the clause which has already been considered, makes the bank
liable to pay twelve per cent, interest only in case of a neglect or
refusal to pay its notes, bills or moneys deposited when due on
demand made at the bank during banking hours.

The fact of the demand then, is parcel of the cause of action
and could not be controverted by the defendants before a jury of
inquiry after a judgment by default upon a declaration alleging the
fact of a demand, and the time of it.

But more than this : if the defendants had pleaded to issue and
a trial had been had before a jury and a verdict found for the
plaintiffs generally, without assessing the damages, the defect could
not be supplied by a writ of inquiry, but only by a venire de novo.
Many cases may be cited in support of this position. Hardw. Gas.
138, 295; 2 Wilson 368; Say. 214; 10 Coke 118; Salk 205;
Godb. 207 ; 4 Leon. 245 ; 2 Sellon's Pract. 16, 17.

The true question upon this part of the case appears to me to be
this, viz., whether the fact of a demand in the manner required by
the act, and the time of the demand, sufficiently appears on the
record.



1841.] APPENDIX. 607

[Hall t>. Bank of the United States.]

This brings me to the consideration of a question which has
divided this court a question it is true, which is no longer open,
because the opinion of the majority of the court has not only been
confirmed by the Supreme Court, but has been followed almost
universally in practice. I refer to the question touching the neces-
sity of declarations in cases within the 2d section of the act of the
28th of March 1835.

*If declarations had been filed in these cases, sufficiently r^/jno
alleging the fact of demand, and the day on which it was -
made, I conceive that there would have been no ground for the ob-
jection now under consideration.

The defendants would have been bound to deny the fact by affi-
davit, or the court would have been bound to assume the fact as
confessed. It has been said indeed, that the affidavit of defence is
applied to the copy of the instrument filed, and that the defendants
would not be bound to notice a declaration, if filed, except by way
of pleading. But I cannot think so. The defence is to the cause
of action, and a declaration setting forth the cause of action, is cer-
tainly a legal way, if not the only legal way of bringing it to the
notice of the defendants.

I do not undertake to say, however, that a declaration is neces-
sary to entitle the party to a judgment upon an instrument of
writing, or other cause within this act. The law, as I have already
said, is quite otherwise. But it is a different question whether a
declaration may not be necessary in those cases where the court
would not undertake to assess the plaintiffs damages without a writ
of inquiry ; and more especially in those cases where the court
cannot otherwise be put in possession of all the facts upon which
the plaintiffs right to damages depend.

According to the settled practice of the court, the plaintiffs, in
these cases may, no doubt, recover all that can be shown to be due
by the copies of the instruments filed. We presume the fact, that
a demand was made (though not alleged), because the defendants
have not denied it ; but the rights of the plaintiffs, as stated in
the argument, requires that we should go further, and presume the
fact of demand made at some particular day. In the case of New-
ton v. The Bank of the United States, the day named is the 6th
of January 1840. The question is. by what principle can the court
do so?

Those who deny that a declaration is necessary for such a pur-
pose as this, are bound to point out some other expedient known to
the law, by which it may be effectually done. In the cases under
consideration, informal papers have been filed, the legal effect of
which it is necessary now to consider. It is sufficient to refer to
one of them. That filed in the case of Newton v. The Bank of the
United States, is in the following words :



608 APPENDIX.

[Hall v. Bank of the United States.]

" The within copies of ten notes of the defendant, to wit, nine of
$1000 each, and one of $500, amounting altogether to the sum of
$9500, which were presented on the 6th of January 1840, at the
bank, and payment refused, and said refusal marked upon the said
notes by A. Lardner, Esq., acting cashier, are copies of the several
notes (upon) which the above action is founded."

The first question is whether the defendants were bound to notice

this paper. If they were not, the court cannot notice it to their

*60n P re j u dice > *and this question depends upon another, viz.,

-* whether it was filed with or without the authority of

law.

Upon this question it may be said that the second section of the
act of the 28th of March 1835, gives no authority whatever to file
any paper but " a copy of the instrument of writing, book-entries,
or claim on which the action is brought." If the plaintiffs, there-
fore, needed the authority of law for filing these papers, this act does
not give it. It is a paper in addition to the copies of the instru-
ments of writing, upon which the action is brought.

The act of the 21st of March 1806, section 5, commonly called
the statement law, is inapplicable to this proceeding ; for the
provision of this act which gives the plaintiff authority to file in
the office of the prothonotary a statement of his demand, requires
him to do it on or before the third day of the term to which the
process is returnable, and it also gives the defendant until twenty
days before the next term to file a statement of his account, partic-
ularly specifying what he believes is justly due to him, which he
may do without verifying it by affidavit. It also gives to the parties
a day on the succeeding term to appear, and then provides, that
if the plaintiff neglects to appear, the court shall order a non-
suit. If the plaintiff appears, and the defendant makes default
at the day assigned, the court shall give judgment against him by
default.

If this statement then, were sufficiently formal within this act of
assembly, yet the practice prescribed by it is inconsistent through-
out with the 2d section of the act under consideration. So then
this act of assembly is out of the question.

It remains then only to consider the effect of this paper as a
declaration. It certainly cannot be doubted for a moment that a
judgment for default of appearance, according to the acts of the
20th of March 1724-5, or 13th of June 1836, founded thereon,
would be erroneous. It is deficient in form and substance. It
avers only that the copies filed are copies of the notes on which the
action is brought an averment which the plaintiff was not bound
to make. Every other matter contained in the paper is stated by
way of recital and without the particularity required in a declara-
tion. In fact, it would be doing injustice to the learned counsel to



1841.] APPENDIX. 609

[Hall o. Bank of the United States.]

suppose that it was intended as a declaration, or that it could
serve any other purpose than that of a summary of the matters included
in the action. At most it is an informal suggestion of facts, filed
of record, without authority of law, and therefore has no legal effect
whatever. The case would be the same as it now is, for all the
purposes of this question, if the paper had not been filed. The
papers filed in the other suits, although open to different remarks,
are equally liable to objection.

But it is said, that papers of this sorthave been filed in other cases,
and judgments have been founded upon them. I am not aware of
any such case, but if the fact be so, such judgments are, in my
*opinion, quite erroneous. It is true there have been informal r+r.*
papers filed, abridging the demand of the plaintift' to a much L
less sum than would appear to be due from the face of the instru-
ments upon which the actions were brought.

Actions have been brought, for example, upon the covenants to
pay rent, reserved in ground- rent deeds, where the rent has been
paid until within a short time of suit brought. The use of these
informal papers or statements filed in such cases, is to prevent an
affidavit of defence which would be filed if the plaintiff should appear
to demand more than is justly due him. But in strictness there
ought to be a declaration filed in every such case, alleging a
breach of the covenant : for the covenant to pay the rent is not
the cause of action but the breach of it ; and if the court were to
insist upon it, the plaintiff would be bound to declare and
allege a breach in the declaration, or the defendant might consider
him as demanding all that would appear to be due by the face of
the deed.

I do not mean to say, however, that a declaration is necessary
for that purpose. I acquiesce in the authority of decided cases.
Watkins v. Phillips, 2 Whart. 210, 211, is such a case. Nor do I
mean to say that an informal paper, abridging the plaintiff's de-
mand, or remitting a part of his right, as it would appear by the
copy is a nullity. It is the practice of the court to take notice of,
and give effect to such papers. But such a paper is not in the
nature of a declaration, and its operation is the opposite of that
which is claimed for the statements filed in these cases. It purports
nothing which it is the interest of the defendant to deny; whereas
the use intended by these papers is to aver facts, which are indis-
pensable, by the rules of the common law, to the plaintiff's right
to recover anything in the action ; or if not, certainly to his right to



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 69 of 75)