Duff v. McDonough

Opinion by Wickham, J., (after stating the facts as above): Not until after proceedings for contempt had been instituted against him, did McDonough comply with any part of the de [377] cree — then he executed and delivered the release and turned over the Ross deed. He refused however to pay the costs, alleging poverty, and was therefore ordered to be committed for contempt. From this order he has appealed, alleging for error, first, that no attachment could legally issue, as the amount of the costs were not fixed in the decree; and in four other specifications of error, that the court was powerless to compel the payment of the costs by attachment. As to the first assignment it is enough to say that the amount of the costs could not well appear in the decree, since they could not be fully taxed until after it was made. The other assignments all rest on the supposed protection, afforded the appellant, by the act of July 12, 1842, P. L. 339, abolishing imprisonment for debt. That act provides that, “ No person shall be arrested or imprisoned on any civil process issuing out of any court of this commonwealth in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the nonperformance of any contract, excepting in proceedings as fo,r contempt to enforce civil remedies,” etc. Manifestly, the present case is not within the meaning of the act. The suit was brought not on or because of any contract between thé parties thereto, but to prevent the appellant from consummating a fraud on the appellee through the dishonest use of the deed, obtained from Ross by the appellant, and which, to quote from one of the learned master’s findings, “was not a bona fide conveyance for a valuable consideration.” The case must be decided as though the act of 1842 had never been passed, and is governed by the rule enforced in Church’s Appeal, 103 Pa. 263. If, as has been more than once held (Church’s Appeal, supra; Wilson v. Wilson, 142 Pa. 247), a trustee, created in the ordinary way, can be compelled by attachment to pay the costs in a suit wherein he has been convicted of unfaithfulness in discharging his duties, for a stronger reason should a trustee ex maleficio guilty of actual fraud persisted in to the end, as was the case here, be liable to a like process. The appellant’s indebtedness for the costs partakes of the nature of the transactions which required the suit to be brought and carried through, [378] and it can therefore be collected in the same way that performance of the rest of the decree can be enforced. The suit was necessitated by the appellant’s fraud, and at the very threshold of the litigation he made its conduct more expensive and complicated by his fraudulent conveyance to Mapes. In ascertaining the grounds of the suit and the decree, we must look at the whole record, which includes the pleadings, master’s report, opinion of the court, if any be filed (Miller’s Estate, 136 Pa. 349), and the decree. Anciently the decree recited the pleadings and facts at length, so much so, indeed, that the practice, by reason of its expense, became an abuse. Rule 14, section 78 of our equity rules, following the rule of the federal courts in this respect, forbids the practice and indicates a short form of decree, but, as Stort, J., said in Dexter v. Arnold, 5 Mason, 311, “For the purpose of examining all errors of law, the bill, answers and other proceedings are, in our practice, as much a part of the record before the court as the decree itself.” The motion made by the appellee that this cause should be certified to the Supreme Court is overruled, as the record clearly shows that the amount involved is less than $1,000. In view of the decision herein given on the merits of the case, we need not further consider the appellee’s application for the setting aside of the order, discharging the appellant on habeas corpus, made after he had given bail on his appeal. The application is therefore dismissed. The specifications of error are overruled and the decree of the court below is affirmed.