McAlpin v. Newell

2 Miles 339

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: October 5, 1839
• Status: Published

Opinion

Pfia Curiam.—

Several questions have been presented in the argument at the bar, all of which we do not deem it necessary to decide. If the defendant, Newell, had not submitted to the arrest, and had refused to give his appearance, he would have been entitled to a discharge under the general provisions of the insolvent law of the 26th March, 1814, on a proper application made to the court. But the question at issue here is whether, on his application, as the matter now stands, he is entitled to have this suit summarily dismissed.

His claim to this is founded on the 14th section of the act of 1814, relating to insolvents, which although declared unconstitutional in some of the federal courts, has been held binding on the courts of Pennsylvania. It may as well be remarked, as preliminary to the subject, that the act of 16th June, 1836, is materially different from that of 1814, as to the privilege in favour of insolvent debtors obtaining a consent of a majority, &e. of their creditors. The act of 1814 provides that the debtor may be “ released from all suits” for seven years, while the act of 1836, (sect. 41) is limited to an exemption of the defendant’s property from execution for a like period. Under each act, it is the duty of the judge of the court, from which the process issues, to set it aside on being satisfied of the consent of the creditors, according to the respective acts. (4 Watts 201.)

But the case before us falls within the provisions of the act of 1814, the defendant’s general and special privileges as an insolvent debtor having occurred prior to the act of 1836. First, it is said that the defendant, being a partner, whose copartner had no privilege as an insolvent debtor, the cause of action being joint, could be sued, notwithstanding the provisions of the act of 1814, and the principle which governs in the cases of outlawry or bankruptcy of one partner is said to apply. (Gow 190.) We will not determine this question. Second, it is said the defendant has waived his privilege, if he had any, by entering an appearance, not de bene esse, but absolutely to the action, and that it is too late now to ask the suit to be dismissed. We think this view of the subject is correct. A party may waive a privilege, and in this case the defendant has done so. It is no answer that his appearance was obtained under the compulsion of an arrest. He could have marked an appearance de lene esse, and then applied to the court for relief. If the sheriff refused to accept it, he should have applied to a judge of this court, whose duty it is to grant relief, if the applicant is entitled to it. The act specifically points out the mode of getting rid of the process, and the defendant should have followed it. His privilege was then waived. If he had entered special bail to the action, and suit had been brought against the bail, the latter could not make defence on the ground of his privilege.

a Nor would a defendant, who having been discharged under the insolvent laws, and taken in execution under a capias ad satisfaciendum, and who, instead of applying to the court in order to be freed from the arrest, pays the money to the sheriff, be entitled, on motion, to restitution of the money on the ground that he was entitled to an exemption from arrest.

Rule discharged.

See Kensington Bank v. Wilkinson, ante, 166.