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Rep. 5), that the bailiff of a liberty, who had the return and exe-
cution of writs within his liberty, was liable to an action of debt
for an escape, for having removed a prisoner, taken by him in
execution, to the county jail situate out of his liberty, where he
delivered him into the custody of the sheriff, instead of taking him
to and confining him in his own jail. Now, if there be any differ-
ence, in principle, between the bailiff of a liberty and the sheriff
of a county to whom a testatum capias ad satisfaciendum is directed,
it is in favour of the bailiff; for the writ is not directed to him, but
to the sheriff of the county in which the liberty is situate, and he
acts under a mandate from the sheriff of such county.

Having shown that the jail of Erie county was the place to which
the sheriff ought to have committed Seely, upon his arresting him,
had he not been discharged from his custody by the order of a
Judge of the Court of Common Pleas of that county, it remains



Sept. 1841.] OP PENNSYLVANIA. 499

[Avery v. Seely.]

for us to inquire and ascertain, whether the Court of Common
Pleas of Erie county is not the proper court to which the petition
for the benefit of the insolvent laws ought to have been presented
by Seely, and whether that may not be construed to be the same
court mentioned in the condition of the bond. A reference to the
Act of Assembly of the 16th of June 1836, entitled " An Act
relating to insolvent debtors," will settle the first of these ques-
tions. By the first section it is declared, that " the several Courts
of Common Pleas of this commonwealth shall have power to grant
relief to insolvent debtors residing or being within this common-
wealth." The first clause of the second section then declares,
that " in the case of a person arrested or detained by virtue of any
process issued in any civil suit or proceeding, for the recovery of
money or damages, or for nonperformance of any decree or sen-
tence for the payment of money, without collusion with the plain-
tiff, the Court of Common Pleas of the county in which such debtor
shall be arrested or detained, shall have power to grant relief, as
aforesaid." Now it is too plain to admit of a doubt, that it is the
Court of Common Pleas of the county in which the debtor is
arrested or detained, that is authorized by this Act to grant relief
to him. Erie county, therefore, being the county in which Seely,
the debtor in this case, was arrested and detained, the Court of
Common Pleas of that county alone was authorized to grant the
relief provided by the Act. The fourth section makes it lawful for
any Judge of the Court of Common Pleas aforesaid, that is, of the
county where the debtor is arrested or detained, or the prothono-
tary of such court, to make an order for his discharge, on his giving
bond to the plaintiff in such suit or proceeding, in such amount,
and with such security as shall be approved by such Judge or
prothonotary ; and the sixth section prescribes the form of the
condition of the bond ; which is, " that the said debtor shall appear
at the next term of the Court of Common Pleas of the said county"
&c. ; meaning clearly the county in which he has been arrested or
is detained. Everything, then, towards procuring relief for the
debtor, is to be done in the county where he is arrested or detained,
either by an application to a Judge of the Court of Common Pleas
of that county or the prothonotary thereof, or the court itself,
accordingly as the nature of the act sought to be done shall require.
Therefore everything necessary to be done in the present case, in
order to obtain the benefit of the Act, was to be done in Erie
county ; and after obtaining an order of discharge from the arrest,
the application for the benefit of the Act was to be made by the
debtor, by presenting his petition to the Court of Common Pleas
of that county.

Then comes the next question, may the county mentioned in the
condition of the bond here, be so construed as to mean Erie county,
so that Seely shall be required thereby to appear at the next term
of the Court of Common Pleas of that county, and present his



500 SUPREME COURT. [Pittsburgh.

[Avery v. Seely.]

petition to the Judges thereof for the benefit of the insolvent laws?
If it cannot, then the condition of the bond is void, because it is
not in conformity to the requirement of the Act, and consequently
no recovery can be had upon it by the plaintiff. Hutton v. Helme,
(5 Watts 346). But if Seely, the debtor, had failed to appear at
the next term of the Common Pleas of Erie county, and present his
petition for the benefit of the insolvent laws, it appears to me that
the phrase " said county," in the condition of the bond, might, by
construction, have been considered as having a reference to the
county mentioned in the obligatory part, which is Erie county, in
order to render the bond available agreeably to the intent of the
parties. For, I take it, that whenever anything contained in a
written instrument is susceptible of different meanings, that shall
be taken which will support the instrument, and not the other,
which would defeat it. Wyat v. Aland, (Salk. 324). The bond
and the condition are to be regarded as constituent parts of the
same instrument, and the expression, " said county," used in the
condition, does not necessarily mean the county last aforesaid, but
means the county before spoken of in the same instrument, and,
where two are previously mentioned, may be referred to that
which tends to support the instrument, rather than the other,
which would go to avoid it.

Judgment affirmed.






CASES



IN



THE SUPREME COURT



PENNSYLVANIA.



NORTHERN DISTRICT, JULY TERM, 1842.



Michew against M'Coy,

A judgment by default in an action of ejectment, without an affidavit of the
service of the writ, is erroneous.

If an attorney appear for a defendant and plead to issue, and afterwards the
appearance and pleas be withdrawn by leave of the court, the cause stands as if
there had been no appearance.

WRIT OF ERROR to the Common Pleas of Luzerne county.

William M'Coy against James Michew, Neal M'Connell and
Dennis M'Garatty.

This was an action of ejectment for a tract of land in Hazle
township, Luzerne county, containing 294 acres or thereabouts.
The summons issued against James Michew, Neal Connor and
Dennis Rodey. By endorsement thereon, the sheriff returned
" Made known the contents of this writ by copies to James Mi-
chew, Neal M'Connell and Dennis M'Garatty, tenants in posses-
sion ;" and nihil as to Neal Connor and Dennis Rodey. No other
return was made by the sheriff, and no affidavit of the sheriff or
other officer having served the writ, stating the manner in which
said service was made, was at any time filed or made. An appear-
ance and plea had been entered by counsel, both of which were
withdrawn by consent of the court. After this, a judgment was

(501)



502 SUPREME COURT [Sunbury

[Michew v. M'Coy.]

entered against the three defendants for the whole premises laid in
the summons in ejectment.

Error assigned :

The court erred in entering judgment against the defendants
without an affidavit of the service of the writ.

Mallery and B. Tilghman, for plaintiff in error, referred to the
2d section of the Act of 13th April 1807, (Stroud's Purd. 333),
which provides that a judgment by default in ejectment may be
entered upon an affidavit that the writ was served. After the
appearance and pleas were withdrawn, the cause stood as if there
had been none; and the plaintiff could then only proceed to judg-
ment by the way which the Act of Assembly provides. 3 Penn.
Rep. 70 ; 2 Arch. Pr. 28 ; 5 Watts 69.

JirClintock and Butler, contra, cited the Act of 13th June 1836,
sect. 79, on the subject of the Commencement of Actions, which,
they argued, dispensed with the necessity of an affidavit of service.
But when parties appear by their counsel and plead to issue, and,
when a jury is called to try the cause, they withdraw their appear-
ance and plea, it is tantamount to a confession of judgment ; and
when all things are presumed to be rightly done, this court will
not disturb the judgment. 2 Watts fy Serg. 135.

The opinion of the Court was delivered by

GIBSON, C. J. The common law abhors an ex parte proceeding,
whose end is not to compel a contumacious party to come in ; and
it consequently knows no such thing as judgment for want of
appearance. It deems the jurisdiction of the person to be incom-
plete until the party has submitted himself by appearing ; and
hence its recourse to the dilatory process of outlawry rather than
pass on the right of an absent defendant, though that does not allow
the court to proceed in the action even when judgment of outlaw-
ry has been pronounced, but gives the plaintiff satisfaction of his
debt out of the outlaw's effects found by the inquest. On the
same principle it will not try a prisoner charged with an offence,
who refuses to plead. It is evident from this, that the common
law does not permit a judgment inpersonam to be rendered against
an absent party in any case; and every judgment for want of
appearance, which is not supported by a statute, is consequently
irregular. Our Act of 1807 authorizes it in ejectment ; but only
where it is preceded by an affidavit of service ; and this requisite
has not been dispensed with in any subsequent enactment. In
the present case, a general appearance was actually entered, and all
question about service or default was at an end ; the parties were
before the court, and the process had done its office. The cause
was put at issue in the usual way ; but the court permitted the de-
fendant's attorney to withdraw his appearance and plea at the trial,



My 1842.] OF PENNSYLVANIA. 503

[Michew v. M'Coy.]

and instantly gave judgment for the plaintiff. Now, to say nothing
of the want of an affidavit of service, which would have offered
a decisive objection to such a step in the first instance, it is suffi-
cient to say that when the exigence of the writ has been answered
by an appearance recorded, but subsequently vacated by the
attorney's death, removal, or retirement from the court, the course
is not to sign judgment for what the client could not prevent, but
to rule him into court by a fresh appearance in person or by coun-
sel ; for there must always be an appearance by party, or by coun-
sel responsible for him to the court. Such a rule is a monition for
his benefit, which he may disregard without incurring any other
penalty than suffering the other party to have an appearance
entered for him ; and the practice is the same whether the defend-
ant's, or the plaintiff's appearance has been vacated. But though
I have known instances of a rule to appear again in person or by
new counsel, there is seldom occasion to resort to it.

The practice of our courts has been modelled after that of the
Common Pleas at Westminster, whose process is summons and
distress infinite, according to the usage of the common law, (Introd.
to Cromp. Pr. Ch. V.}, and which consequently does not authorize
a judgment by default for want of appearance. Strictly speaking,
that judgment was authorized, for the first time in Pennsylvania,
by the Act of 1806 to regulate arbitrations and proceedings in
courts of justice. By the Act of 1725 to regulate the practice
on writs of summons and arrest, the plaintiff was allowed, after
affidavit of service, to file a common appearance for the defendant
and proceed to judgment against him by nil dicit, which was indeed
a species of judgment by default; but it is remarkable that
the British Parliament, though borrowing copiously from that Act
in the formation of the recent Statute of 2 W. 4, c. 39, yet adhered
to the common law principle of authorizing the plaintiff, in case
of the defendant's default, only to enter an appearance for him.
This reluctance to dispense with an appearance which would put
the plaintiff to the proof of his case before a jury, shows pretty
clearly the tone of the common law.

As, then, this judgment is unauthorized by any statute, how is
it to be supported ? It is said the withdrawal of the appearance
and plea, was understood, at the time, to be a confession of judg-
ment. But no such nnderstanding is apparent in the case as it
stands on the record, by which alone we must be guided. There
certainly was no confession before the attorney's appearance was
withdrawn ; and he was incompetent to bind the defendants after
he had ceased to represent them. In cases of judgment by non
sum informatus, or nil dicit, the attorney's appearance is not with-
drawn because there could be no judgment without it. It follows
not that the client is defenceless because his counsel may have
been permitted to retire from his cause ; and it might be matter of
grave surprise to him, as it seems to have been to these defendants,



504 SUPREME COURT [Sunbury

[Michew v. M'Coy.]

to find his defence precluded by it. Even where he has shown
himself to be personally in default, there is a sufficient remedy in
having his appearance recorded for him. If the plaintiff has been
delayed, in this instance, it has been his own fault ; for it is not
to be believed that the court would have suffered the appearance
to be retracted against his consent. That done, however, nothing
remained but to rule the defendants into court to try the cause in
the usual way.

Judgment reversed, and venire facias de novo awarded.



Costenbader against Shuman.

One who obtains the possession of the property of another surreptitiously or
otherwise wrongfully, cannot support an action of trespass against a third person,
who, by virtue of a judgment and execution against the owner, levied and carried
it away, although that judgment and execution may have been obtained from the
defendant for the fraudulent purpose of hindering and delaying creditors, of whom
the plaintiff in the action of trespass was one.

ERROR to the Common Pleas of Columbia county.

This was an action of trespass by Isaiah Shuman against Dan-
iel Costenbader, William Kitchen and James Donaldson. The
questions argued in this court arose out of the special pleading of
the parties, which was very voluminous and not material to the
merits of the cause as it was decided. The whole case is very
fully stated in the opinion of the court. The cause was argued by

Montgomery and Cooper, for plaintiffs in error.
Comly and Frick, for defendant in error.

The opinion of the Court was delivered by

ROGERS, J. This is an action of trespass quare clausum fregit
for breaking and entering the plaintiffs' close, and taking and
carrying away certain personal property, viz., two horses, &c.
The defendants justify the alleged trespass by virtue of an exe-
cution on a judgment, Daniel Costenbader against Joseph Mil-
ler. The plaintiff replies, that the judgment was obtained by
fraud and collusion between Miller, Costenbader and Donaldson.
On this allegation the parties took issue, and on the trial the plain-
tiff, among other things, offered to prove fraud in obtaining the
judgment, between Miller and Costenbader, omitting Donaldson.
In admitting the evidence on this issue, the defendants allege there



July 1842.] OF PENNSYLVANIA. 505

[Costenbader v. Shu man.]

is error. The material facts are these : Joseph Miller, who con-
fessed the judgment to Costenbader, was indebted to the plaintiff,
Isaiah Shuman, for money advanced, and also, as he alleged, as a
surety for various debts. Shuman, having understood that an
execution was about to issue against Miller by one Dyer, proposed
that Miller should assign all his property to him, (amongst which
the property in dispute is included), in order to prevent Dyer from
selling it on his execution, and, as he said, that the same might be
saved for the use of Miller. In pursuance of this plan, the par-
ties came before Mr Baldy, a justice of the peace, and a judgment
was confessed for $450. At the same time, there was an assign-
ment of the property, and by the advice of the justice the parties
returned to the house of Miller, where Miller delivered the horses
and the wagon, and the articles assigned to Shuman, who drove
them to his own house, but immediately after returned them to
Miller. By this scheme, or in some other manner, they contrived
to rid themselves of Dyer's execution. The property, it appears,
after the arrangement, remained as before, in the possession of
Miller, and continued so until several days thereafter, when Shu-
man, without any previous consent, took them out of the pos-
session of the servant or agent of Miller. On this property so
acquired a levy is made by the defendants, one of whom is the
sheriff, another his deputy, and the third the plaintiff in the judg-
ment on which the execution issued. And the simple question is,
was the property levied on, the property of Miller or Shuman ?
For, if it was the goods of the former, it cannot admit of doubt
that the defendants were justifiable in entering the plaintiff's pre-
mises and making the levy. On the other hand, if the goods did
not belong to him, the defendants are trespassers. If the goods
were not Miller's, the possession of Shuman will entitle him to an
action of trespass ; but if Miller's, the goods are liable to execu-
tion as his property.

That the horses and wagon at one time belonged to Miller, is
admitted. Did, then, the arrangement or contract devest the right
of Miller, and had Shuman a right to take a forcible or surrepti-
tious possession of the goods ? What was the arrangement, its
objects and purposes ? It was evidently made to hinder and de-
fraud Dyer, and as respects him and the other creditors, the agree-
ment was void, but as between themselves, it was good. But the
question recurs, what was the agreement ? And if the uncontra-
dicted testimony is to be believed, all the goods assigned were to
remain in the possession and for the use of the assignor, he pay-
ing to the assignee the interest on the debt in the nature of a rent.
It is not a sale, (such cannot be pretended to be the character of
the bargain), for it is expressly agreed it shall be Miller's after he
pays the debt due to Shuman. This amounts to nothing more,
as between themselves, than an assignment as a security for a
debt, the assignor, by the agreement and with the assent of the
m. 64 2s



506 SUPREME COURT [Sunbury

[Costenbader v. Shumun.]

assignee, retaining possession as before the contract. If this was
the agreement, Shuman in undertaking to take possession contrary
to the contract was manifestly a wrongdoer, and as such rendered
himself liable to an action. His possession being unjustly ac-
quired, cannot be the foundation of an action either against the
assignor or any person claiming under him.

But it is said (and this is the turning point of the cause,) that
the judgment on which execution was issued, was for an amount
greater than was due, and that the judgment is therefore fraudu-
lent and void. But admitting this to be so as against creditors,
it is good between the parties ; and it may be asked, in what does
this concern Shuman, who, it must be remembered, comes into
court as a wrongdoer, or one who has, without claim of right, taken
possession of the goods of another ? What can it avail him, that
a person, from whom he has unlawfully and contrary to his con-
tract, taken the property, chooses to confess judgment for an
amount greater than he owes, or even when nothing is due?
What has he to do with it, and why should he be permitted to
inquire into the validity of the judgment ? May not the owner
assign his right, with or without consideration, without the con-
sent of any person ? and in what way can it affect a wrongdoer,
and what right has he to complain ? It may be said, Shuman is
a creditor ; but it is only in his character of a wrongdoer the
attempt is made to sustain the suit. If this be a correct view of
the case, it is very plain the cause has been tried on erroneous
principles, and on an immaterial issue. It follows, therefore, that
there was error in admitting any evidence of fraud and collusion
in obtaining the judgment. It will be perceived that we do not
put the case on the ground that the evidence offered does not sup-
port the issue, but upon the general principle that whether collu-
sion or not, is entirely immaterial. If the plaintiff had not the
rightful possession, he cannot maintain the suit, and we cannot
see how he is entitled to his action, even if the judgment should
be without exception. So that in whatever way it is received, the
evidence has nothing to do with the controversy. On the whole,
we are of opinion that justice requires this case should be sent to
another trial. And we would recommend a withdrawal of the
special pleas, which have only served to perplex the court and
counsel, and that the cause be tried on the general issue.

It is obviously unnecessary, as the case stands, to trouble our-
selves now with the other points which have been argued by the
counsel.

Judgment reversed, and a venire de novo awarded.



July 1842.] OF PENNSYLVANIA. 507



Haydock against Tracy.

A promise made on Sunday to pay a debt which was barred by the Statute of
Limitations, without making proof of the original debt, is not sufficient evidence to
maintain an action.

ERROR to the Common Pleas of Bradford county.

Henry W. Haydock against George Tracy. Case in assumpsit.
The plaintiff declared for goods sold and delivered to the defend-
ant ; for goods sold and delivered to the defendant and one Ridg-
way, the recovery of which was barred by the Statute of Limita-
tions, but which the defendant promised to pay. The only proof
given in the cause was the deposition of Humphrey B. Dunham,
the material parts of which were as follows :

" In the fall of 1837, he called on the defendant Tracy, and pre-
sented to him an account for merchandize furnished him (Tracy)
and one Ridgway, by the plaintiff. Tracy acknowledged the cor-
rectness of the account so presented, but said he supposed it had
been settled by his agents in New York, who had compromised
with his creditors generally, and, as he supposed, with all; that,
however, he had receipts or accounts, which would show whether
it had been settled or not ; that he would examine them, and pro-
vided he could not find proof of its settlement, he would satisfy
the claim, either by remitting the amount, or, as he expected soon
to visit the city, by calling on Haydock, -the plaintiff, personally,
and paying it. This is all the defendant said about it ; and the
only time he ever presented such an account to, or called on the
defendant."

" On looking at the paper handed to him, marked ' No. 1,' and
annexed hereto, he thinks it is not the account above mentioned,
presented to the defendant ; that is to say, it is not the same paper.
According to the best of his recollection and belief upon the sub-
ject, he left with the defendant, the bill so made out and presented
to the defendant, as above mentioned, and did not preserve a copy
of it. The bill or account so presented to defendant, was not of
the same amount, nor were all the items or dates the same as those
of 'No. 1," (the main difference, however, being that the interest
on the account presented to defendant was computed to about the
time it was presented : whereas, in paper ' No. 1,' it appears to be
computed to September 19th 1839.) The account so presented to
defendant, the correctness of which was acknowledged by him,
as aforesaid, was an account for merchandise furnished on the 20th



5U8 SUPREME COURT [Sunbury

[Haydock v. Tracy.]

of February and the 31st of July 1826, as per bills previously ren-
dered, amounting together to the sum of $127.03, on which there
was credited, as of July 3lst 1826, the sum of $30, and on which
also, interest was computed and added, at the rate of 7 per cent,
per annum on the balance, allowing six months credit on each of
the said several bills,"

" The promise made by the defendant to pay the account above
mentioned, as above stated, was made on Sunday ; and he saw
the defendant in the year 1837, on no other day but Sunday."

The court (Lewis, President,) instructed the jury that the evi-
dence given did not sustain the plaintiff's declaration, and he was
not entitled to recover. *

Williston, for plaintiff in error.
Overton, for defendant in error.

The opinion of the Court was delivered by

HUSTON, J. This case comes before us in such a shape that we
must affirm the judgment, unless we suppose some evidence to
have been given other than is sent up to us. There is no evidence



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 3) → online text (page 58 of 69)