1 Watts 60 | Pa. | 1832
The opinion of the Court was delivered by
Ever since the decision in Collins v. Collins, 2 Burr. 820, it has been considered as settled, that the stat. 8 and 9, W. 3, c. 11, extends to bonds payable by instalments; and this construction is consistent not only with the letter of the statute, but with the nature of the remedy provided by it, which was to secure the benefit of successive defences against particular instalments subsequently falling due, instead of subjecting the obligor to the entire penalty, on failure to pay a part of the debt secured by it. In the case at bar, an opportunity to plead whatever might be a defence to the subsequent instalment, was not afforded; nor could the defendant have had it by filing an affidavit, and compelling the plaintiffs to assign their breaches; for nothing could be assigned that was not a breach at the impetration of the writ—as for instance, the non payment of money that was not then demandable. It is true, that at the common law, the penalty was the substantive, as. it was the formal cause of action, and the whole of it became demandable as an entire duty, by the most inconsiderable violation of the obligor’s engagement ; the consequence of which was, that he was driven into
The plaintiffs took nothing by their motion.
I object to the opinion just delivered, because it overturns a practice of at least twenty-six years ; and that without, so far as I can perceive, the least necessity. In Sparks v. Garrigues, Chief Justice Tilghman directed the course to be pursued, on an application similar to the present, in language which it is impossible to mistake. It is, however, said, that the point is not directly decided; and I admit that it is not; but, when a practice has generally obtained, in conformity to a recommendation of the chief justice of this court, implicitly sanctioned by his colleagues, it seems to me it deserves all the respect of a solemn decision. I do not claim the observance of the rule as a dictum, but because it has been acted upon by bench and bar, from that time until the present. In Sparks v. Garrigues, the principal question was, in what manner the judgment should be entered, whether for the penalty or for the interest, for which suit was brought.
It is said that the chief justice refers to a judgment confessed on a warrant of attorney. In answer to this I have to remark, that the case has not been so understood ; nor can it be, with any appearance of plausibility, so construed. Sparks v. Garrigues is not a judgment on a warrant of attorney, but is a judgment for the penalty of a bond, rendered on a verdict; and that there is a difference between such a judgment and a judgment by default, passes my comprehension. It was in reference to the case itself fin which the opinion was delivered, that the chief justice indicated the course to be pursued, and there can be little doubt, that, if it became necessary, that course was pursued. It is unnecessary to contend that the other members of the court expressly concurred in the reasoning of the chief justice. It is sufficient for my purpose that they did not dissent; and that the practice has been in conformity to it. I have had an opportunity of consulting with some of the members of the bar, who concur with me, that such has been the understanding of the bar and bench, and that the practice has been as there stated since the case in 1 Binn. In addition to this, we have the experience of at least one other of the members of the court. Supported, then, by this authority, the plaintiff asks the court to award him an execution, and this we refuse, without special cause, on the ground of some decisions which have been in England, on the stat. of 9 and 11 William 3. I would not wish to be understood as denying the authority of that statute in Pennsylvania; it has been adopted by our courts in practice ; and the same tribunal which gave it validity, has also given it a construction, and on this the plaintiff relies. It will be conceded that if such practice exists, it would be unwise to disregard it, except
See Austerbury v. Morgan, 2 Taunton 195 ; Cox v. Rodbard, 3 Taunton 74, and Kinnersly v. Mussen, 5 Taunton 264.