Gardner v. Kiehl

Opinion by Mr. Justice Mitchell,

It is to be regretted that the court below did not give us the' benefit of its reasons for quashing the writ. Two grounds are set up by the defendant, first, that plaintiffs had a suit pending and at issue in Clarion county for the same cause of action at the time this suit was brought, and secondly, that the cause of action is local and not transitory.

As to the first ground the judgment must be reversed for irregularity. The pendency of a prior action is the subject of *199 a plea in abatement, not of a motion to quash the second writ. But as a plea in abatement, the matters set up in the petition to quash would be insufficient, for they only allege that the first suit was pending when the second writ was issued, and not, as is necessary, when the plea was pleaded: Toland v. Tichenor, 3 R. 320 . Even if pending at the time the petition to quash was filed, the authorities are that plaintiff might discontinue the first suit and reply that there was no such action pending: Findlay v. Keim, 62 Pa. 112 . Leave to discontinue the first action even nunc pro tunc as of a date prior to the second writ was within the discretion of the court of Elk county, and the Gourt of Clarion had no jurisdiction over that matter. The order quashing the writ was therefore irregular and void in any point of view, and must be reversed.

But the order was erroneous in substance as well as in form. The claim that the cause of action is local cannot be sustained. It is conceded that the action of trespass is transitory and that this suit must fall within the general rule, unless the fact that it is against the sheriff for an act done in the conduct of his office makes it an exception. But such exception can only be established by statute, or such reasons of public convenience as will compel the courts to declare it as part of the policy of the state.

The only statutory authority adduced in this case is the Act of 21 James I, ch. 12. This act does not in terms apply to actions against sheriffs, and it is not entirely clear that it has been construed to include them. It is not necessary to go into this question however, as the act is not in force in this state. No instance of its application has been found by the industry of the learned counsel for the defendant, and it is not included in the list of English statutes reported as in force by the judges of this court: 3 Binney, 595. It is true that this omission is not conclusive against the statute, but it raises a presumption of very great weight. The report, as said by so eminent a lawyer as Mr. Binney, in printing it in his third volume, “ deserves to be placed by the side of judicial decisions, being the result of very great research and deliberation by the judges, and of their united opinion. It may not perhaps be considered as authoritative as judicial precedent, but it approaches so nearly to it that a safer guide in practice, or a more respectable, not to *200 say decisive authority iu argument, cannot be wanted by the profession.” That is the view that has always been taken by this court, and in citing any of the British statutes as ground of judgment it has been considered sufficient to refer to that report as authority for their continuance as part of the law of the state. See Finney v. Crawford, 2 Watts, 294 ; Kline v. Jacobs, 68 Pa. 58 ; Savage v. Everman, 70 Pa. 315 ; Frisbee’s Appeal, 88 Pa. 144 ; .Carson v. Cemetery Co., 104 Pa. 575 . And though in Warren v. Steer, 118 Pa. 529 , by a much to be regretted decision, an act reported by the judges was held no longer in force, and parties in ejectment were deprived of a most convenient and much needed remedy, yet it was put on the express ground that the English statute had since the report of the judges been superseded by acts of our own on the same subject. The presumption against a statute by its omission from the report is not of course so strong as the presumption in its favor by its affirmative inclusion, but it is still of very great weight, and it is especially so in the present case, as the judges included the very next and one other section of the same act, showing that the act had passed under their consideration. In the absence of anything in the case to overcome the prima facie correctness of the judges’ report the presumption must prevail.

Nor do we find any sufficient grounds of public policy to make an exception in favor of the sheriff. No doubt it is inconvenient to him to be sued out of his own county, but that is an inconvenience common to everjr citizen who, in leaving his home temporarily for business or pleasure, runs the risk of the personal service of a writ in trespass in another jurisdiction. Moreover, the inconvenience is to the sheriff personally much more than to the citizens of his bailiwick, if indeed the latter have any appreciable interest in the matter at all. On the other hand the public inconvenience might be very great if a defaulting sheriff at the end of his term could hold the aggrieved parties at defiance by simply moving across the county line.

Judgment reversed and writ reinstated.