Hertzog v. Ellis

Tilghman C. J. The plaintiff in this cause gave notice to the defendant previous to the commencement of the action, that unless he entered special bail by a certain time, a capias would be issued against him. This is a practice peculiar to Pennsylvania under an old act of assembly. The defendant entered bail, whereupon the plaintiff immediately entered a rule of reference, and conducted the proceedings so speedily, as to obtain judgment and issue execution returnable to the term next succeeding the commencement of the action. The question is, whether this proceeding was regular. It depends upon “ the act regulating arbitrations,” passed 20th March. 1810. The first section of this act, declares, that it shall be lawful for either party, to enter at the prothonotary’s office, at any time after the entry of the action, a rule of reference &c. The only point is, what is the entry of the action? The defendant’s counsel has pointed out many difficulties, and inconveniences, that may result from entering the rule of reference, prior to the term succeeding the bringing of the action- If I considered myself at liberty to alter the law in order to prevent inconveniences, his arguments would have great weight with me. But upon examining the act, I cannot bring myself to doubt about its meaning. The action is entered from the time that it is placed on the prothonotary’s docket. The entering or bringing the action is one thing; the appearance in court another. The first proviso in this same section shews that the213 legislature distinguish between the bringing of the action, and the first term after it is brought. Indeed the distinction' is manifest. Where the reference is entered before the first term, the suit may be carried on without appearing in court at all. In the case now before us, the rule of reference was not entered till after special bail was given. It would be extraordinary indeed, if bail could be given before the entry of the action. But I ground my opinion, not on the entry of bail, but on what I conceive to be the plain meaning of thé Words entry of the action. It is best that the public should be informed as early as possible, of the construction given to the acts of assembly by the courts of justice, in order, that if there are defects, they may be remedied. My opinion is, that the reference was regularly entered; and therefore the rule to shew cause must be refused. Ye ates J. The question raised in this case rests on the construction of the first section of the “ Act regulating arbitrations” passed on the 19th March 1810. The suit originated on a promissory note, by a notice given under the law passed 20th March 1724-5 (intitled l(An Act to “ regulate the practice upon writs,°f summons and arrest”) to the defendant to enter special bail. The defendant entered such bail on the 24th August 1810. On the 29th of the same month the plaintiff expressed his determination to have arbitrators chosen on the 10th September then next ensuing, Arbitrators were appointed accordingly on that day, the defendant not attending according to notice, who have filed a report for the plaintiff for 531 dollars and 82 cents, upon which judgment has been entered, and a fieri facias has issued returnable on the first day pf this term. A motion has been made to set aside the execution, judgment, and rule of arbitration, upon the ground that the rule could not be legally entered until the first day of the term, to which a summons or capias could be returned served, or the defendant arrested. The words of the law are, “ it shall and may be lawful for either party in all civil suits or actions pending, or that may <c hereafter be brought in any court &c. to enter at the pro- “ thonotary’s office a rule of reference &c.” Whether the [214] fule has been obtained, prematurely, or not, must depend on the meaning of the Words ponding of that may hereafter be brought. It may be said, that according to the common acceptation of the term, an action may be considered as brought, immediately after mesne process has issued; btit the legal idea seems to be different as We find it in our books. An action does not commence till the defendant makes his appearance, which is not till bail filed. 1 Sid. 373. No action can be depending, or declaration filed, until the defendant be in the custody of the marshal, which is bail filed. 2 Lev. 13. The entry of the bail gives the court jurisdiction. 1 Vent, 133. See also Cartli. 114. I rather think the expressions in the act are to be construed according to their legal sense. It seems highly incongruous to take a rule upon a party, before he has appeared. But When he has ehtered special bail, the jurisdiction attaches; and I take such a case to be within the plain words, and ¡meaning of the law. Demanding an arbitration before the service of process, strikes me as a novelty. But it has been objected, that by proceeding in this mode, the party obtains a more expeditious remedy, than if he had originated his suit by summons or capias. If this be really objectionable, it may be obviated by the defendant’s refusing to enter special bail, and being brought in by process. It is further objected, that the method of procedure in this instance pursued, destroys the orderly course of judicial proceedings, inasmuch as the fieri facias being tested as of the last term, necessarily precedes the day when the judgment was entered. But this seeming’incongruity is tolerated itl many cases. Where a judgment is entered in vacation, the Same remark applies as to the teste of the execution issued thereon; and where a bond or note falls due in the vacation, the mesne process to bring in the defendant bears teste as of a day previous to the day of payment expressed in such bond or note. I am of opinion, that the defendant take nothing by his motion. Brackenridge J. said he had no doubt that the entry [215] of the action intended by the act of assembly, was the entry on the docket; and of course that a rule of arbitration might be taken out at any time after such entry upon the docket of the prothonotary. Buie refused.