Andrew Duncan, Plaintiff In Error v. Isaac Darst, Henry Darst, and Jacob Darst, Defendants

• Citation: 42 U.S. 301,11 L.Ed. 139,1 How. 301
• Parties: ANDREW DUNCAN, PLAINTIFF IN ERROR, v. ISAAC DARST, HENRY DARST, AND JACOB DARST, DEFENDANTS
• Decision Date: 01 January 1843
• Court: United States Supreme Court

42 U.S. 301 1 How. 301 11 L.Ed. 139 ANDREW DUNCAN, PLAINTIFF IN ERROR, v. ISAAC DARST, HENRY DARST, AND JACOB DARST, DEFENDANTS. January Term, 1843

THIS case came up by writ of error from the Circuit Court of the United States for the eastern district of Pennsylvania.

The facts in the case were not disputed, and were as follow:

Isaac Darst, Henry Darst, and Jacob Darst, citizens of the state of Ohio, recovered a judgment in the Circuit Court of Pennsylvania, against one Jacob Roth, who was arrested on a capias ad satisfaciendum, and handed over for safe-keeping to Andrew Duncan, sheriff of the county of York. This was on the 6th of December, 1832. On the next day, Roth applied to George Barnitz, an associate judge of the Court of Common Pleas for the county of York, for the benefit of an act of the legislature of Pennsylvania, passed on the 28th of March, 1820, entitled, 'A supplement to the act entitled A supplement to the act entitled An act for the relief of insolvent debtors, passed the twenty-ninth of January, one thousand eight hundred and twenty.'

The first section of the act referred to is as follows:

'That if any debtor shall hereafter be arrested or held in execution, on a bail piece, in a civil suit, and who shall have resided six months in this commonwealth previously thereto, he may apply, when arrested on execution, to the president or any associate judge of the Court of Common Pleas of the county in which he is so arrested, or when held on a bail piece, may apply to the president or associate judge of the said court, in the county in which the suit was instituted, and give bond to the plaintiff or plaintiffs, at whose suit he is so arrested and held, with such security as shall be required and approved of by the said judge: the condition of which bond shall be, that the said debtor shall be and appear at the next Court of Common Pleas for said county, and there take the benefit of the insolvent laws of this commonwealth, and to surrender himself to the jail of the said county, if he fail to comply with all things required by law to

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entitle him to be discharged, and generally to abide all orders of the said court: whereupon the said judge shall give an order to the sheriff, constable, or other person, having such debtor in custody, to forthwith discharge him upon his paying the jail fees, if any be due.'

It was admitted that this act was in force on the 7th of December, 1832, and for a long time afterwards; that Roth had resided in the commonwealth of Pennsylvania for six months previously to his application, and that he complied, in all respects, with the provisions of the above section. The judge gave an order to the sheriff having Roth in custody, to forthwith discharge him upon his paying the jail fees, and he was thereupon discharged.

Darst brought an action against Duncan for an escape, who pleaded specially the above matters in his defence. The plaintiff demurred to the plea, and the demurrer was sustained in the Circuit Court; and, upon the validity of this demurrer, the case was brought up to this court.

The statute of Pennsylvania, above recited, required the party who desired to be discharged from imprisonment, to give bond that he would appear at the next Court of Common Pleas, and there take the benefit of the insolvent laws of the commonwealth. Upon a reference to the acts then existing, it will be found that the privileges conferred upon the debtor and the duties required of him, by the insolvent laws, are the following: He was to be declared free from imprisonment, not only upon that suit, but from subsequent arrests, on his giving a warrant to appear in court; and although the property which he might subsequently acquire was subject to execution, yet the court was at liberty to exempt it, provided two-thirds of his creditors assented. The duties required of the debtor were, that he should hand in a list of his property, creditors, debts, and losses; that he should not be guilty of collusion or false swearing; that he should not conceal or convey away his property, under penalty of imprisonment; and that he should be liable to punishment at hard labour, if found to be a fraudulent debtor. The property of and debts due to the debtor were vested in trustees, who were to convert them into cash and divide it among the creditors; the surplus, if any, belonging to the debtor.

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This is the process through which it was necessary to pass, according to the bond of any one who might be discharged from imprisonment, as Roth was.

Read, for the plaintiff in error.

Penrose, for defendant.

Read, for plaintiff, took the following positions:

1. The third section of the process act of the 19th May, 1828, expressly adopted the act of Assembly of Pennsylvania of the 28th March, 1820, and particularly the first section thereof, as a part of the...