Finney v. M'Adams

Philadelphia County Court of Common Pleas

Finney v. M'Adams

1 Miles 392

CourtPennsylvania Court of Common Pleas, Philadelphia County

DecidedSeptember 12, 1831

StatusPublished

This text of 1 Miles 392 (Finney v. M'Adams) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finney v. M'Adams, 1 Miles 392 (Pa. Super. Ct. 1831).

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Opinion

The opinion of the court

(Barnes, President; Hallowell, J.; and Coxe, J.)

was delivered by

Haleowell, J.

The bail bond was forfeited before, the 26th of July 1831 ; the suit on it was therefore regular, and the proceedings on it could only be set aside on entering special bail, and paying-off the costs of the bail bond suit.

Notice too ought to have been given to the plaintiff or Iris attorney, of the time of entering special bail. Notices were twice given, one for the 26th, the other for the 29th of August; neither was complied with, but the bail was entered on the 30th, and, as far as appears, without any notice.

The entry of this special bail, without payment of costs, notice to plaintiff or motion for leave by the court, operated nothing on the bail bond suit. The plaintiff had a right to carry it on as if no such thing had been done ; he did so, and entered a regular rule to plead ; served notice of four weeks or more on the plaintiff's attorney personally ; and on his disregarding it, entered a regular judgment upon it. The defendant suffered it to rest so till the 7lb of December; then attended and chose arbitrators in the original suit, and afterwards, though notified, neglected to attend the meeting of the arbitrators, and has not appealed from the award. The defendant has been guilty of the grossest laches; the phiintiff has been regular and vigilant throughout; and the defendant indeed appears to have acquiesced in the propriety of the judgment on the bail bond suit, by afterwards submitting to and joining in the appointment of arbitrators in the original, without moving to set it aside. The bail bond, in strict law, is forfeited ; a regular judgment has been obtained upon it; and it rests in the sound legal discretion of the court whether to sustain it or not, the case not being of the usual description where bail to the sheriff becomes fixed by the non entry of special bail after the lapse of the third term. The law favours the vigilant, and frowns upon the negligent. The defendant here has drawn the plaintiff by his conduct into the costs of the arbitration and of the execution, and the court think, under nil the circumstances of the case, it would [395]*395be an unsound exercise of their discretion to disturb this judgment and execution. Our opinion therefore is, that the rules obtained on the 5th of February last, on behalf of the defendant and his bail, be discharged, and, of course, the judgment and execution will remain in full force,

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The opinion of the court

(Barnes, President; Hallowell, J.; and Coxe, J.)

was delivered by

Haleowell, J.

The bail bond was forfeited before, the 26th of July 1831 ; the suit on it was therefore regular, and the proceedings on it could only be set aside on entering special bail, and paying-off the costs of the bail bond suit.

Notice too ought to have been given to the plaintiff or Iris attorney, of the time of entering special bail. Notices were twice given, one for the 26th, the other for the 29th of August; neither was complied with, but the bail was entered on the 30th, and, as far as appears, without any notice.

The entry of this special bail, without payment of costs, notice to plaintiff or motion for leave by the court, operated nothing on the bail bond suit. The plaintiff had a right to carry it on as if no such thing had been done ; he did so, and entered a regular rule to plead ; served notice of four weeks or more on the plaintiff's attorney personally ; and on his disregarding it, entered a regular judgment upon it. The defendant suffered it to rest so till the 7lb of December; then attended and chose arbitrators in the original suit, and afterwards, though notified, neglected to attend the meeting of the arbitrators, and has not appealed from the award. The defendant has been guilty of the grossest laches; the phiintiff has been regular and vigilant throughout; and the defendant indeed appears to have acquiesced in the propriety of the judgment on the bail bond suit, by afterwards submitting to and joining in the appointment of arbitrators in the original, without moving to set it aside. The bail bond, in strict law, is forfeited ; a regular judgment has been obtained upon it; and it rests in the sound legal discretion of the court whether to sustain it or not, the case not being of the usual description where bail to the sheriff becomes fixed by the non entry of special bail after the lapse of the third term. The law favours the vigilant, and frowns upon the negligent. The defendant here has drawn the plaintiff by his conduct into the costs of the arbitration and of the execution, and the court think, under nil the circumstances of the case, it would [395]*395be an unsound exercise of their discretion to disturb this judgment and execution. Our opinion therefore is, that the rules obtained on the 5th of February last, on behalf of the defendant and his bail, be discharged, and, of course, the judgment and execution will remain in full force,

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Bluebook (online)

1 Miles 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finney-v-madams-pactcomplphilad-1831.