81 Pa. 39 | Pa. | 1876
delivered the opinion of the court,
The declaration below was upon a bond executed by the defendants on a hearing under proceedings upon a warrant of arrest, issued in pursuance of the Act of Assembly of July 12th 1842, “An Act to abolish imprisonment for debt, and to punish fraudulent debtors,” (Pamph. L. 334), conditioned that John P. Horter, the party arrested, should apply to the Court of Common Pleas of Philadelphia county, for the insolvent laws, and alleging a breach of the condition. To this the defendant, Hubert, the only one served with process, pleaded non est factum, nil debet, and a special plea — that the bond was obtained from him in a proceeding of and concerning a cause of action exclusively cognizable by the District Court of the United States for the Eastern District of Pennsylvania, in Bankruptcy, the said Horter having been theretofore adjudicated a bankrupt in the said court. The plaintiff replied, taking issue upon the first two pleas, and by a special replication denied that the cause of action was exclusively cognizable by the District Court of the United States, and averred that the District Court for the city and county of Philadelphia had jurisdiction to require of the said Horter the execution of the said obligation, and of this the plaintiffs put themselves on the country. It is very clear that the issue raised by the replication was an issue'of law and not of fact. It admitted the facts averred in the plea, but denied the inference of law. It admitted that Horter had been theretofore adjudicated a bankrupt. It can be regarded only as an informal demurrer. It must be considered, then, that the verdict rendered was upon the two other issues of fact. When, however, judgment was entered by the court below, it was necessarily upon the whole record. We think the judgment was erroneous, and that upon the whole record the defendant was entitled to judgment.
The plea demurred to in averring that the cause of action was exclusively cognizable in the Bankruptcy Court, in effect asserted that it was for a debt or cause of action from which Horter would have been entitled to his discharge under the bankrupt law. If it had not been so, the plaintiff should have replied that fact. Under the bankrupt laws, parties can still be sued and proceeded against for any “ debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character:” Revised Statutes U. S., sec. 5117, Unless the warrant of arrest was for one or other of these causes,
Judgment reversed, and now judgment for the defendant below. February 28th 1876. It is ordered that the . judgment heretofore entered February 21st 1876, in favor of the defendant below, be vacated and set aside, and that a venire facias de novo be awarded.