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Potts v. Fitch

Potts v. Fitch, 2 Pa. 173 (1845)

Court: Supreme Court of Pennsylvania · State Highest Courts
Decided: February 7, 1845
Judges: Kennedy
Citations: 2 Pa. 1731845 Pa. LEXIS 302

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Headnotes

1. Proceedings cannot be sustained on an insolvent’s bond, after an order to answer for fraudulent insolvency, during the pendency of the indictment, there being an appearance by defendant. 2. Where the bail has been reduced by a subsequent order, the latter is the only one which can be recognised as obligatory.

Summary

Error, to the District Court. Jan. 26. — The question in this case was, whether the defendant wa-_ liable as surety on an insolvent bond. The jury found a special verdict, and the court below gave judgment for defendant. In 1841, Kinsman being in custody, under a ca. sa., at the suit of the plaintiffs, gave this bond to appear at the next term, present his petition, and comply with the requisitions of the law, and abide all orders of the court: or in default, and if he fail in obtaining his discharge, then to surrender himself, &c. At the next term, October, Kinsman did present his petition, and it w7as held under advisement till January 5th, following, when the court refused to discharge him, and ordered him to give bail in $>5000, to answer at the General Sessions. The bail was not given until the 8th January : the court on that day having reduced the amount to $>2000. That Kinsman did not surrender himself at any time since the date of the bond. That Kinsman did appear, and pleaded to an indictment, according to the order, which proceeding is still undetermined ; and whether the surety is liable, &c.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Kennedy

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Kennedy, J.

— We are satisfied that the defendant was entitled to a judgment in his favour, on the special verdict found by the jury, and that the court were right in rendering one accordingly. By the finding of the jury, it does not appear that the insolvent, Kinsman, the principal, had, anterior to the bringing of this suit, committed a breach of the condition of the bond, upon which it is founded, in any respect whatever, but on the contrary, had performed and complied with all things therein mentioned and required of him. The only particular, in which it is alleged that he failed to comply with the condition of.the bond, and for which there is even the slightest colour of plausibility, is, that the court, to which .he presented his petition for the benefit of the insolvent laws, in conformity to the condition of the bond, after having proceeded thereon, and having heard him and his creditors, and thereupon, not being satisfied, that he was entitled to a discharge under the insolvent laws, made an order on the fifth day of January, 1842, in the following words: — « The court refuse to discharge the said Israel Kinsman as an insolvent debtor, and direct him to give security in the sum of five thousand dollars, conditioned for his appearance at the next court of General Sessions, to answer the charge of fraudulent .insolvency.” This order, though made by the court, was not permitted to remain in force, but was, in effect, vacated by the court, three days afterwards, on the eighth of the month, by the court’s direction that the said Kinsman should give security, for the like purpose as that of the first order, in the sum only of $2000, which he immediately did. The latter order of the court, reducing the amount of the security to be given to $2000, is the only order, in this respect, that can be looked at, or regarded by this court, or any other court, as binding upon the insolvent. The order for giving security in $5000 must not only be left out of view, but considered as out of being.

Israel Kinsman, the principal in the bond, having then complied *175 with all things mentioned in, and required of him by the condition thereof, at the time of commencing this action, as the jury have shown fully by their verdict, there is no ground for making the defendant liable, as his surety in it.

The judgment is therefore affirmed.

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