Commonwealth ex rel. McCabe

• Decision Date: 01 January 1854
• Citation: 22 Pa. 450
• Parties: Commonwealth ex rel. McCabe.
• Court: Pennsylvania Supreme Court

Page 450

22 Pa. 450

Commonwealth ex rel. McCabe.

Supreme Court of Pennsylvania.

THIS was the case of a writ of habeas corpus, issued at the instance of Michael W. McCabe v. J. M. Christopher, keeper of the debtor's apartment in Philadelphia.

H. M. Phillips was for the relator.—It was said that the plaintiffs declared for causes of action different from those stated in the warrants and in the affidavits on which they were founded: and 7 Taunton 304, was cited for the principle that bail are not liable, on their recognisance, for any cause of action which is not stated in the affidavit whereon the defendant is held to bail. Also, cited 4 Dowl. & Ry. 619; 1 Tidd's Pr. 243; 2 Saunders 72 a; 3 Wilson 61; 7 Term Rep. 80; 2 H. Bl. 278. If the declaration vary from the affidavit to hold to bail in the cause of action, the bail is discharged: 8 T. Rep. 27; 6 Id. 363.

Perkins, for creditors.—It was stated, viz.: This was an application by a debtor to be discharged from imprisonment on technical grounds without surrendering his property. The affidavits which accompanied the warrant of arrest, show that the relator obtained goods to an amount of upwards of $20,000 — immediately sent them to auction — sold them on time at a sacrifice of twenty-five per cent. or more — got the auctioneers' notes cashed at the rate of one per cent. a month, and fled with the proceeds to the United States. The charge in these cases was, that the defendant, in the words of the Act of Assembly, fraudulently contracted the debts and incurred the obligations respecting which the suits were brought. The notes and the bills of goods for which they were given were one and the same debt, and one and the same obligation; a verdict and judgment on one, is an answer to a suit on the other.

The defendant is held under the commitments of the judge agreeably to the Act of 12th June, 1842, section 8, and not on the warrants of arrest. They have performed their office. By that section the judge before whom a defendant is brought, if satisfied that the allegations of the complainant are substantiated, and that the party arrested has done, or is about to do, any one of the acts specified in the 3d section of the Act, he shall issue a commitment under his hand, reciting the facts of the case, and directing that such party be committed to the jail of the county in which such hearing is had, to be there detained until he shall be discharged by law, and such party shall be committed and detained accordingly, unless defendant pay or secure the debt, (section 9;) or give bond not to remove or assign his property, (section 10;) or to take the benefit of the Insolvent Laws, (section 11.) The 12th section states the effect of such commitment, and how defendant may be discharged from arrest.

An immaterial variance between the cause of action stated in the narr. and in the warrants, or in the affidavits on which the warrants are founded, is of no consequence: 9 Watts 43, Kelly v. Commonwealth; 7 Barr 383, Devereux v. Esling; 3 Vermont 435, Wright v. Brownell.

The opinion of the Court was delivered by WOODWARD, J.

It appears by the return to the writ of habeas corpus that the prisoner is detained in custody by virtue of warrants of commitment, issued by Judge HARE of the District Court, in seven civil causes which were commenced against the prisoner in that Court to June Term, 1853, by seven of his creditors.

Since the commitment two of the cases, Stewart's and Wilfred's, have terminated in the defendant's favor, one by non pros. and the other by discontinuance, and as to these he is entitled to his discharge.

But as to the other five, we see no ground for discharging him. The debts for which the suits were brought were such as exempt the debtor...