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on which said petition he, the said John Snevily, was discharged by
the said court, under the insolvent laws, on the 29th of January
1833, prout said petition and the record of the several orders of
the court and proceedings thereon, which are to be annexed and
made part of this special verdict. The said John Snevily was con-
fined in the said jail at the suit of the said Abraham Stayman from
the said 8th of December to the said 29th of January 1833.

If the court shall be of opinion that the said Samuel Boyer, the
plaintiff, has a right to recover on the case above stated, then judg-
ment to be entered against the said John Johnson, the defendant, for

III. XX



373 SUPREME COURT [Harrisburg

[Johnson v. Boyer.]

the sum of 267 dollars 89 cents, with interest from the 9th of June
1832, and costs of suit ; but if the court shall be of opinion that the
plaintiff is not entitled to recover, then judgment to be entered for
the defendant, with costs of suit. The judgment so entered to be
subject to a writ of error from the supreme court, at the instance of
either party.

The court below (Blythe, president) rendered a judgment for the
plaintiff.

M^Clure, for plaintiff in error, cited, 1 Law Lib. 122, 124, 126 ;
Roup v. Waldhouen, 12 Serg. fy Rawle 24.

M'Cormick, for defendant in error.

The opinion of the Court was delivered by

GIBSON, C. J. An exemption from execution for a further time
than the defendant would have had if the plaintiff had proceeded
regularly to judgment, may perhaps discharge the bail on the prin-
ciple which regulates the responsibility of sureties in equity ; though
even that is said to be a modern refinement, and not to be too much
encouraged. However, no such exemption is pretended here. But
the bail may be discharged by circumstances of stipulated indulgence
short of a grant of such further time. Their power to arrest the de-
fendant and keep him imprisoned, is derived from the right of the
plaintiff to have satisfaction of the body, and ceases with it whether
the cessation be induced by the act of the plaintiff or the act of the
law. Hence it has been held by the English courts, that the defend-
ant's succession to a peerage, or to a seat in the house of commons,
or his transportation, banishment, death, or whatever else relieves or
prevents him from making satisfaction with his body before the bail
are fixed, exonerates them without a surrender. But it has been
determined that a cognovit taken on terms of personal exemption for
a period no greater than the defendant would otherwise have had,
produces no such effect. The solidity of this principle is denied by
Mr Theobald in his Treatise on the law of Principal and Surety 216,
note (c), on the ground that a suspension of the right of execution
makes the defendant a freeman ; and if a freeman against the plain-
tiff, then a freeman against the bail, substituted, as they are, for
the plaintiff, with the same capacity, and no other, to affect the
defendant's liberty. The decisions to the point are not authority
here, and it is consequently necessary to see whether the objec-
tions to them are founded in reason. How far, then, the defendant
is made a freeman by a limited stay of execution, whether abso-
lutely and permanently, or but conditionally and temporarily, seems
to be the matter most material to an inquiry into the foundation of
the rule on principle ; anu must depend on the terms of the stipula-
tion, or where these are inexplicit, on the nature of it. For if an
agreement to postpone the time of execution be not a virtual and



JVw. 1834.] OF PENNSYLVANIA. 379

[Johnson v. Boyer.]

permanent relinquishment of the right to control the defendant's
liberty, it is not easy to see how it can release the bail, an exact per-
formance of whose recognizance is dispensed with only where a sur-
render would be nugatory, the principal being entitled to be set at
large the same instant. But would such a postponement entitle a
defendant, in custody at the time, to be discharged without a condi-
tion to that effect on the cognovit? If such a condition could be
fairly implied, the bail would undoubtedly be exonerated without a
surrender. But it is not nugatory where ihe body remains contin-
gently liable ; nor does it follow, on the very principle of the argu-
ment, that the bail are further exonerated than the defendant is him-
self. Why then should they not be bound to produce him, according
to the exigence of their recognizance, where the plaintiff's right to
demand him has ceased to be dormant and is put into immediate
action 1 They cannot be injured by postponement for a period less
than would entitle them to equitable relief, because they may relieve
themselves by surrendering the plaintiff and leaving his right to libe-
ration to be settled by the parties to the cognovit. They may sur-
render him on the original arrest, though an execution be not in the
hands of the sheriff waiting for him. It is said in effect, that though
the immediate power of imprisonment is transferred to the bail, the
plaintiff must retain the power of having it put in action by an exe-
cution ; and that he parts for a time even with these by a stay of
execution. But he has no such means before the recovery of judg-
ment, till which time there is intermediately an entire cessation of
his power ; and the absence of it afterwards, consequently, cannot be
the criterion : if it were, a temporary suspension of execution by a
statutory provision, such as with us ensues a judgment on special
verdict, demurrer, or case stated, in order to give time for a writ of
error, would have the effect of working a dissolution of the recogni-
zance, which it never was intended or supposed to have. A writ of
error which supersedes execution, undoubtedly discharges the special
bail, because the bail in error is substituted for them, and a new se-
curity is interposed ; but if a writ of error be not taken, or bail in
error be not given, the special bail remain liable; and why should a
suspension by the act of a party be more extensive in its effect 1 If
a limited stay of execution implied an exemption of the person at the
expiration of it, it would certainly make the defendant a freeman ;
but it is one thing to postpone the time of satisfaction, and another
to narrow the means of it. When the stay is out, the plaintiff has
the same right to execution of the body that he had before, or that
he would have had if there had been no stay at all ; and if a suspen-
sion of the right to immediate execution be not necessarily a re-
linquishment of the security originally taken to have the body forth-
coming, when execution of it should be legally demanded, it produces
no intermission of the plaintiff's power over it in the meantime.
During a postponement of execution, the power of the bail, incidental
to a continuance of their responsibility, is as much the power of the



380 SUPREME COURT [Harrisburg

[Johnson v. Boyer.]

plaintiff as it was before judgment ; nor is it more remotely so in respect
to his means of compelling them to use it by an execution against
the body. In the event of the defendant's succession to a seat in par-
liament, or of his transportation, banishment or death, the power both
of the plaintiff and the bail is displaced by a superior power, which
essentially differs the case from that of a mere suspension of the
plaintiff's right to insist on the immediate exercise of a power trans-
ferred from him to the bail, and continuing to exist in them with all
its original force. It would be unreasonable to interpret the agree-
ment for a stay so as to subject the plaintiff to the risk of the defend-
ant's evasion, unless the latter could have no benefit of it in another
way. Not only, however, is his property temporarily exempt from
seizure, but the custody of his person is committed to the discre-
tionary authority of a friend, whose object in acquiring it is to set
him at liberty instead of letting him remain in jail, under the arbi-
bitrary power of the plaintiff. He may, doubtless, be deprived of the
expected benefit by the capricious surrender of his friend ; but to be
subject to the power of a keeper of his own choice was the whole
consideration of his cognovit, and if he meant to stipulate for the
permanent exemption of his person, he ought to have had it so ex-
pressed. At the worst, he has the benefit of a temporary exemption
of his property, which is a sufficient consideration. Having obtained
every thing that he stipulated for, it does not follow that he would
be discharged if surrendered ; and it therefore seems that the opposite
doctrine is without foundation even in technical reason. But, how-
ever the question might be thought to stand on theory or foreign
authority, it is sufficient for present purposes that no counsel in
Pennsylvania ever suspected a temporary stay of execution to be an
exoneration of special bail, and that the practice has been settled,
from the first, in conformity with the principle now indicated. It
would seem, therefore, that the plaintiff was entitled to judgment.
Judgment affirmed.



JVor. 1834.] OF PENNSYLVANIA. 381



Green against Leymer.

If a judgment be confessed before, and entered by, a justice of the peace, for a
sum exceeding 100 dollars, the merits of it cannot afterwards be inquired into
by the justice ; he has no further jurisdiction over the subject.

A transcript of a judgment of a justice for a sum exceeding 100 dollars, may
be filed in the common pleas, and upon a scire facias quare executio non
and judgment thereon, an execution may issue, although there had not been an
execution from the justice, and return of " nulla bona"

ERROR to the common pleas of Dauphin county.

Richard Green confessed a judgment in favour of John Ley-
mer before a justice, for a sum exceeding 100 dollars, a transcript
whereof was filed by the plaintiff in the common pleas. Subse-
quently the defendant represented to the justice that there had been
a mistake in the original judgment, and the justice gave notice to
the plaintiff to appear before him: the plaintiff did not appear, and
the justice opened the judgment and inquired into the merits of the
judgment, and reduced its amount. The plaintiff issued a scire
facias quare executio non out of court, to which the defendant appear-
ed and pleaded nul tiel record, and payment. On the trial the defend-
ant offered in evidence the docket of the justice in order to show the
facts above stated. The plaintiff objected to the evidence, on the
ground that the justice had no power to open the judgment, and
his proceedings were void. The court (Blythe, president) sustained
the objection and rejected the evidence. A verdict and judgment
were rendered for the plaintiff, and an execution issued out of court.
The defendant moved to set aside the execution on the ground that
none had ever issued from before the justice, upon which a return of
"nulla bona" could have been made. The court refused to set it
aside.

The rejection of the evidence, refusal to set aside the fieri facias,
and exercising jurisdiction to issue the scire facias, were the subjects
of the assignments of error.

M'Clure, for plaintiff in error, cited, Drum v. Snyder, 1 Binn. 381 ;
Daily v. Gifford, 12 Serg. # Rawle 72; 3 Penns. Rep. 472; Berry-
hill et al. v. Wells, 5 Sinn. 56 ; Ashmead 151.

Fisher and M'Cormick, contra, cited, King v. King, 1 Penns. Rep.
20 ; Brannon v. Kelly, 8 Serg. fy Rawle 479.

The opinion of the court was delivered by

KENNEDY, J. As to the first error, I think the court below was



382 SUPREME COURT [Hamsburg

[Green v. Leymer.]

right in rejecting the docket of the justice. The sum claimed by
the plaintiff before the justice, exceeding in amount the sum of
100 dollars, it is very clear from the act of assembly of the 20th
of March 1810, giving jurisdiction to justices of the peace in the
cases therein specified, that the justice could only take cognizance
of the plaintiff's claim by the consent and agreement of both the
parties. The extent of his authority or jurisdiction in such case is
limited and confined by the fourteenth section of the act strictly to the
terms of the agreement under which the action is entered before
him. By the agreement then in this case, it was not submitted to
the justice to examine into and ascertain the amount of the plaintiff's
demand : this was agreed between the parties themselves to be
115 dollars and 52 cents; for which sum they directed the justice
to enter a judgment against the defendant, by confession, in favour
of the plaintiff, which was accordingly done. Hence by the agree-
ment of the parties, under the express terms of the act of assem-
bly, the justice, at the time of entering the judgment, or at any
subsequent period, had no power or authority whatever, without the
consent of both the parties, to examine into or alter the sum for
which it was confessed before him. But having, some time after
the judgment was confessed, upon the application of the defend-
ant alone, and without the consent of the plaintiff, undertaken to
investigate the foundation and merits of the plaintiff's claim under
it, and having thereupon set it aside, and rendered an entirely dif-
ferent one of his own in favour of the plaintiff for a much less sum,
this latter proceeding and judgment must therefore be considered
absolutely void for want of jurisdiction on the part of the justice,
and his docket containing the record thereof inadmissible as evidence
to reduce the plaintiff's claim under the original judgment. It was
therefore properly rejected by the court, when offered for that purpose
by the defendant below.

I also think the second error assigned is not sustainable. The
execution sued out in this case, was not issued upon the transcript
of the judgment, taken from the justice and filed in the prothonotary's
office, but upon the judgment rendered by the court of common pleas,
in the writ of scire facias sued out upon the transcript. The judg-
ment rendered in the scire facias by the court of common pleas must
be considered a new and distinct judgment from that entered by the
justice. It is for an enlarged sum, including the interest upon the
justice's judgment from its date to the time of rendering the judg-
ment by the court ; the amount of which latter judgment becomes a
new principal upon which interest is to be allowed under the second
section of the act of 1700, giving interest to the creditor upon his
judgment from its date till satisfied : the costs of the proceeding in
the scire facias, as well as the costs on the judgment before the jus-
tice, are likewise included in the judgment given in the scire facias.
Now unless the plaintiff is entitled to have an execution on this judg-
ment from the court, it is impossible that he can have the effect of



JWw. 1834.] OF PENNSYLVANIA. 383

[Green v. Leymer.]

it ; for it cannot be pretended that the justice, before whom the
original judgment was had, can issue any upon it ; nor yet issue one
in any form to authorize the levy and collection of the amount of it.
And although the tenth section of the act of 1810 does require that
an execution shall be issued first by the justice entering the judg-
ment, and that a return of "no goods," shall be made thereon
by the constable, before an execution shall be issued by the pro-
thonotary on the transcript of the judgment filed with him, yet
this restriction cannot be applied to the suing out of an execution
upon the judgment rendered in the sdre facias, because it is, as I
have said, a different judgment from that entered by the justice, of
which the transcript is filed, and one in relation to which the jus-
tice has no authority whatever given to him by the act. It might
as well be contended, that the plaintiff in the judgment before
the justice, (if, instead of suing out a sdre facias on the transcript
of it in the common pleas, he had brought an action of debt therein
upon it, and recovered a new judgment in court, including the prin-
cipal and interest of the original judgment up to the time of rendering
the new judgment by the court, with the costs of both suits), could not
have an execution upon his judgment thus obtained in court, until he
had first caused one to be issued upon his judgment before the jus-
tice, and failed by this means to recover the amount of it. This latter
proposition, I take it, will be universally admitted to be untenable ;
yet upon examination it will be found, that according to the estab-
lished rule of practice in this state, the judgment which is given in
favour of a plaintiff in a writ of sdre facias quare executionem won, is
precisely the same that is rendered in his favour in an action of debt
brought by him upon the original judgment. This being so, it seems
to me that no good reason can be given why the plaintiff should not
be permitted at once in either case to proceed by execution, sued
out of court upon his judgment rendered therein, to levy and collect
the amount of it.

With respect to the third error, which is the only remaining one,
if I apprehend the meaning of it rightly, it is that a writ of sdre facias
quare executionem non cannot be sued out of the court of common
pleas upon a transcript of o. judgment given by a justice of the peace,
which has been entered on the docket or records of the court, in the
manner authorized by the tenth section of the act of 1810. The
only reason alleged in support of this exception is, that the act does
not specifically authorize it. But I do not consider this essentially
requisite. It is sufficient, I conceive, to authorize the suing out of
such writ, if, by entering on the prothonotary's docket the transcript
of the judgment obtained before the justice, it becomes, under the
operation of the act, a record of the court. That it does become a
record of the court by being so entered, cannot, I think, be fairly
questioned. For it is expressly provided by the act, that an execu-
tion may be sued out of the court upon it, to take the real estate of
the defendant in execution, after a return of "no goods" shall have



384 SUPREME COURT [Harrisburg

[Green T. Leymer.]

been made to one previously issued from the justice ; in which it is
not only treated as a record of the court, but as a judgment of the
same, and so ruled by this court in the case of Brannon v. Kelly, 8
Serg. 4" Rawle 479, where it was held that a scire facias to revive the
judgment might be sued out on the transcript from the court of
common pleas, and that the writ, which recited the judgment as one
given by the court, was well enough.

A scire facias in England, although deemed a judicial writ, and
founded on some matter of record, still participates so much of the
nature of an original writ in many cases, that the defendant may
plead to it; and in this respect it is considered as an action which
may be released by a release of " all actions." But in this state it
is assimilated still more closely to an original writ or action than in
England, where no judgment is given for the recovery of interest on
the debt, nor was any given for costs until the passage of 8 and 9 W.
3, cap. 11, sect. 3 ; 6 Bac. Mr. (by Wilson), tit. Scire Facias (A) 102,
103; 3 Burr. 1791; 2 Tidd. Pr. 920, 921, 982, 1185, 1186, 8tk
Lond. ed.

But here the judgment rendered in favour of the plaintiff in such
writ is uniformly for the recovery of the debt, with interest thereon
to the time of giving the judgment, together with the costs of suit, in
all cases ; precisely in the same manner as if it were an action of
debt. I therefore think the plaintiff below was well entitled to a writ
of scire facias in this case.

Judgment affirmed.



Henry against The Commonwealth.

A criminal in confinement for costs is not entitled to his liberty upon giving
bond to take the benefit of the insolvent laws. If he do give such bond, an ac-
tion upon it cannot be supported.

ERROR to the common pleas of Dauphin county.

This was an action upon an insolvent bond, by the Common-
wealth against the administrators of Gowen Henry. The case pre-
sented the following facts. Gowen Henry had been convicted of
forgery, sentenced to imprisonment for one week, and to pay the costs
of prosecution : he was pardoned by the governor, and gave a bond to
the Commonwealth, with security, to appear at the next court of
common pleas to take the benefit of the insolvent laws : he was dis-
charged, thereupon, from custody; but did not appear in pursuance
of the condition of the bond. This suit was then brought on the
bond to recover the amount of the costs of prosecution, for the pay-



JVw. 1834.] OF PENNSYLVANIA. 385

[Henry v. The Commonwealth.]

ment of which the defendant's intestate had been committed. The
question was, whether the taking of said bond was authorized, and
whether there could be a recovery upon it. Judgment was rendered
for the plaintiff in the court below.

H. Mricks and M'Kinney, for plaintiffs in error, cited, act of 1820;
M'Kee v. Stannard, 14 Serg. fy Rawle 381 ; King v. Culbertson, 10
Serg. < Rawle 325 ; Commonwealth v. Shannon, 13 Serg. 4" Rawle
109 ; Holden v. Bull, 1 Penns. Rep. 460; Biddis v. James, 6 Binn.
329 ; Seidenbender v. Charles, 4 Serg. fy Rawle 160 ; Yelv. 197 ; 3
Com. Dig. 98; Mitchel v. Smith, 1 Binn. 119; Bruce v. Lee and
another, 4 Johns. Rep. 410.

M'Clure, contra, cited, Duncan v. Commonwealth, 4 Serg. <$
Rawle 451 ; Holdship v. Jaudon, 16 Serg. fy Rawle 308 ; Morse v.
Hodson, 5 Mass. Rep. 317; Clap v. Cofran, 7 Mass. Rep. 101.

PER CURIAM. The act of 1814, which extends the benefit of the
insolvent laws to criminals in confinement for costs, contains no pro-
vision for intermediate liberty, whether the applicant be under sen-
tence or in execution. That measure was introduced by the act of
1820, which relates by its terms but to debtors in execution, though
the case of prisoners under sentence must have met the eye of the
legislature, as it was embraced by the preceding legislation. Under
these circumstances, and particularly as the legislature might well
see reason to distinguish between those who are criminal and those
who are but unfortunate, to be silent about it was to except it.
The bond, then, being unauthorized by statute, cannot support an
action.

Judgment reversed, and judgment rendered here for defendants.



Vernor against Henry.

In the case of a latent ambiguity in a will, explanatory declarations made by
the testator at the time of the execution of it are admissible in evidence ; so also
are previous professions of the testator, indicative of his design to give his pro-
pcrty in a particular way.

ERROR to the district court of Lancaster county.

This was an action of debt for a legacy of 8000 dollars under the
will of Benjamin Vernor deceased, by James Vernor Henry, against
the executors of the deceased. That clause of the will upon which
the action was founded, was in these words : " I give and bequeath
to my nephew James Vernor Henry, son of my deceased sister Eliza-

III. YY



386 SUPREME COURT [Harrtsburg

[Vernor v. Henry.]

beth, his heirs or assigns, the sum or legacy of 8000 dollars, lawful
money, to be paid to him one year after my decease."

The plaintiff, to maintain the issue on his part, gave in evidence
the will of Benjamin Vernor, and then called John T. Vernor (this
witness is one of the executors, and not objected to by defendants, so
far as respects his testimony of the pedigree of the family), who de-
posed : I am a grandson of Benjamin Vernor's brother John. Benja-
min Vernor had six brothers and sisters, three brothers and three
sisters; of these my grandfather and three sisters were married. His
sister Elizabeth married Robert Henry. All I ever knew of the
children of Elizabeth Henry were John Vernor Henry and Robert
R. Henry. Robert R. Henry is the gentleman here present. John
V. Henry is dead. ,He died in 1829, in the fall of the year. I have
heard of other children of Elizabeth Henry, but did not know them
personally. I know James Vernor Henry, the plaintiff in this suit.
He is the son of John V. Henry, the son of Robert and Elizabeth
Henry before mentioned. The plaintiff then put this question to the
witness, "Do you know or did you ever hear of any other person of
the name of James Vernor Henry?" To which the defendants
excepted, but the court overruled the exception, and the defendants
excepted to the opinion of the court.

The witness answers the question. No sir, I never heard of any
other James Vernor Henry. I shall be thirty-eight years old the 7th



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 3) → online text (page 45 of 62)