Scully v. Kirkpatrick

Mr. Justice Sharswood delivered the opinion of the court January 6th 1876. In regard to the question presented upon this record on the reserved point in the court below, as to the validity of the warrant of arrest and the proceedings thereon, under the Act of Assembly of July 12th 1842, entitled “ An Act to abolish imprisonment for debt, and to punish fraudulent debtors,” Pamph. L. 334, it was fully considered after two arguments and decided adversely to the plaintiff in error, in re W. C. Barr : opinion filed November 10th 1875. It was then held that the state remedies against fraudulent’ — 330 — debtors are not suspended by the operation of the Bankrupt Act of Congress, inasmuch as it is expressly declared in that act, that “ no debt created by the fraud or embezzlement of the bankrupt or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy Sect. 5117, Revised Statutes U. S. 993; and also, “no bankrupt shall be liable during the pendency of the proceedings in bankruptcy to arrest in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.” Barber v. Rodgers, 21 P. F. Smith 362, was not the case of a debt fraudulently contracted. As the 1st sect, of the Act of 1842, abolishing imprisonment for debt is unconditional, the creditor would be without remedy against a fraudulent debtor, under either the laws of the state or of the United States, unless he could pursue him under that act to compel the application of his acquisitions subsequent to the institution of the proceeding in bankruptcy to the payment of the debt. The second question which arises relates to the evidence of the breach of the condition of the bond in suit. It appears that the proceedings upon the warrant of arrest issued in the original case by Judge Kirkpatrick, were entered upon the docket of the court, and there is this entry thereon: “June 18th 1873 — plaintiffs appear, defendant not appearing, is called and surety called and bond declared forfeited.” This was all the evidence of the breach of the condition. But this entry on the docket did not make a record, unless it was so in point of fact. We are of opinion that it was no part of the record, and the entry therefore not evidence; much less conclusive of the breach of the condition. The proceedings on a warrant of arrest under the Act of 1842, are no part of the proceedings in the cause, but merely incidental and collateral thereto. The jurisdiction and authority might just as well have been committed to any other officer as to a judge of the court in which the suit was commenced or the judgment obtained. The warrant does not issue from the office of the prothonotary, and is not under the seal of the court. It is issued by the judge himself to the sheriff or any constable, who is nowhere required to make return into the .office or to the court, but who executes the warrant by arresting the defendant and bringing him before the judge issuing the warrant, and keeping him in custody until he is duly discharged. There is no provision, from one end of the act to the other, that the proceedings or any part of them shall be filed of record. By sect. 7, “ The judge conducting such inquiry shall have the same powers to issue subpoenas to enforce the attendance of witnesses, and to punish witnesses refusing to testify, as is vested in the court of which he is a judge.” The final commitment by sect. 8, is under the hand of the judge reciting the facts — 331 — of the case and directing the defendant to he committed to the jail of the county. How then could the proceedings he entered on the record — no act from their commencement to their termination being an act of the court? There was no proper evidence before the court below of the breach of the condition of the bond, and the first point of the defendant below should have been affirmed. The only other question presented, arises upon the sixth assignment of error — the rejection of the offer of evidence by the defendant. The bond in suit was given under the provision of the 6th sect, of the Act of 1842, that “in case of an adjournment the judge may take a bond with or without surety for the appearance of the party arrested at the adjourned hearing.” The day named in the condition of the bond for the adjourned hearing was June 18th 1873. The rejected offer was to prove “that a.few days before June 18th 1873, the defendant, Humberts, had been stricken down by sickness, at his home at Evansville, Indiana, and was thereby prevented appearing at the day fixed, to be followed by evidence that so soon as said Humberts was able to leave home, to wit, on the 30th day of June 1873,- he hastened to Pittsburg and appeared before Judge Kirkpatrick to answer the complaint; the 30th of June being the earliest day he was able to appear at Pitts-burg after his recovery from his illness.” This evidence was objected to as irrelevant, and incompetent because contradicting the record. We have seen that there was no record to contradict, and that in his action in the premises, Judge Kirkpatrick was not acting as a court of record, and had no power to adjudge the bond to have been forfeited. It remains to consider whether the facts presented in the offer were relevant to the issue; in other words, whether they would have constituted a good defence had the breach of the condition been proved — the offer in effect admitting that Humberts did not appear before Judge Kirkpatrick on the 18th June 1873, the day appointed for the adjourned hearing. It is undoubted law that if the condition of a bond becomes impossible to be performed by the act of Hod, the obligation is discharged : Co. Litt. 206 a. But a condition was then only considered in the eye of the law as impossible if it could not by any means take effect: Id.; Butler’s note 98. Death of the party who is to perform the condition of course releases the bond — but that it could only be done with great danger to the life of the party is not sufficient. Some hard examples are to be found in cases of special bail, but there is a peculiarity in the alternative condition of the recognisance of special bail which is .to be remembered in reading these cases: Wynn v. Petty, 4 East 102; Grant v. Fagan, Id. 189 ; Bowerback v. Payne, 2 Wash. C. C. Rep. 464 ; Rathbone v. Warren, 4 Johns. 310; Olcott v. Lilly, Id. 407. Some relaxa — 332 — tion of the rigidity of the rule occasionally appears: Thomas v. Buckley, 5 Cowen 25; Boardman v. Fowler, 1 Johns. Cas. 41. The power of a court in giving relief against their own orders, though of the most final and absolute kind, is illustrated in Doty v. Whittlesey, 1 Root 310. There a party on his way to pay money for the redemption of a mortgage under a final and absolute decree of foreclosure at a day certain, was taken sick and could not proceed; the court extended the time. See also Crane v. Hanks, Id. 468. It is said, indeed, that in matters of positive contract and obligation created by the party (for it is different in obligations or duties created by law) it is no ground for the interference of equity, that the party has been prevented from fulfilling them by accident; or that he had been in no default. The reason is that he might have provided for such contingencies by his contract if he had so chosen: 1 Story’s Eq. Jur., § 101. This reason, however, would not apply to the case before us : for this was a statutory bond and could only be given in the form prescribed, as was held by this court in McClelland v. Smith, 2 Jones 303. The principle so broadly stated is not. supported by the later cases. Equity will often in the case of positive contract give relief, not perhaps on the ground of accident, but by an equitable interpretation of the terms of the contract. They will imply that the parties necessarily intended an exception. Pollard v. Shaaffer, 1 Dall. 210, an early case in this state was of that character. The later English cases very distinctly recognise this equitable doctrine. In Hall v. Wright, El., B. & E. 746, Crompton, J., said : “ When a contract depends upon personal skill, and the act of God renders it impossible, as for instance in the case of a painter employed to paint a picture, who is struck blind, it may be that the performance might be excused.” And see Taylor v. Caldwell, 3 Best & Smith 826. In Boast v. Firth, Law Rep. 4 C. B. 1, to an action for breach of an apprenticeship deed, the defendant (the father) pleaded that the apprentice “ was and is prevented by the act of God, to wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff during all the said term;” it was held on demurrer a good plea or excuse of performance. There are several American cases which sustain the position that when the act to be performed is of a purely personal character, which can only be done by the party himself, the act of God in producing sickness and insanity as well as death, will be an excuse for performance: Dickey v. Linecott, 7 Shepley 353; Knight v. Bean, 9 Id. 536; Fenton v. Clark, 11 Verm. 360 ; Hubbard v. Belwin, 1 Williams 645 ; Fuller v. Brown, 11 Metc. 440 ; Fraley v. North, 19 Barb. 342; Wolfe v. Howe, 24 Id. 174; — 333 — Jarroll v. Farris, 6 Missouri 159. And there is a decision by the Supreme Court in New York which applies thé principle to a case precisely the same as that before us, and is therefore directly in point. In an action of debt on a recognisance conditioned that the sheriff arrested on an attachment should appear on a day named to answer for a contempt, the defendant, the surety in the recognisance, pleaded that the sheriff before the day was taken violently sick and could not he removed; after the day he died. On demurrer the plea was held to be sufficient: The People v. Manning, 8 Cowen 297. And is it not a most reasonable and just doctrine? Had Gumberts died on the 17th of June 1873, the bond would have been discharged and the surety released. Would it not shock our sense of common justice in a court where equity is part of the law, to be told that if he was dying on that day, but did not expire until the 19th of June, we must hold his surety bound ? The impossibility of personal appearance would have been the same in both cases. If he had become a raving maniac, must he he brought before the judge in a strait jacket ? In either case his presence would have answered no purpose of the inquiry. He could have replied to no questions. Had he, however, put in no appearance before his death, there would have been some force in the contention that the plaintiff had lost all the benefit of his proceeding, and the surety must bear the consequences — that the plaintiff had the law on his side and equal equity, and there ought therefore to be no interposition in behalf of the surety. But the offer here was to show that Gumberts did appear as soon as he was able, and the plaintiff might have had all the advantage of the proceeding. If then his excuse for not appearing at the day named was a valid one in equity, his appearance at the subsequent term as soon as he was able saved the bond, and the error of the judge in not continuing the proceeding, ought not to prejudice his surety. Judgment reversed, and venire facias de novo awarded.