Smith v. M'Affee

1 Miles 85

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: December 11, 1835
• Status: Published

Opinion

The opinion of the Court was delivered by

Pettit, President.

The act of the 28th of March 1820, is relied upon io support of this rule. Though the language is, arrested, or held on a bail piece, (phraseology which would not have been employed, had the section been penned by a lawyer) yet no new doctrine was intended to be asserted. In legal contemplation, the defendant, before surrender, is in the custody of his special bail, and when surrendered by the bail, he is restored to the position which he occupied when held by the sheriff under the original writ. It is when he is so surrendered that the defendant may give an insolvent bond, and obtain an order for his discharge from custody under the capias ad respondendum, as was done here ; or may at his election give new special bail, and, by becoming again in charge of such bail, obtain his release from the arrest by the sheriff. The case is very different from that of an arrest under a capias ad satisfaciendum, and a subsequent insolvent bond, where the practice, founded upon a distinct principle, has been to withhold from the plaintiff a writ of fieri facias. There is nothing in the terms of the act which deprives the plaintiff who has obtained a judgment, and has had no service of a capias ad satisfaciendum, of the right to proceed to levy upon she property of the defendant. Full effect can be given to every part of the act without taking from a vigilant plaintiff, who has not committed himself by the use of a capias ad satisfaciendum, the advantage, in regard to the property of the defendant, which, upon the grounds of reason and sound policy, his judgment ought to afford to him. Looking either to the letter or the spirit of the law, this rale must be discharged.

Rule discharged.

(a)

See Davis v. Sommer, in this volume.