1 U.S. 452

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U.S. Supreme Court

PRIMER v. KUHN, 1 U.S. 452 (1789)

1 U.S. 452 (Dall.)

Primer, Plaintiff in Err.

Supreme Court of Pennsylvania

September Term, 1789

Error from the Common Pleas of Philadelphia County. On the trial of the cause below, (See ant. 226) a bill of exceptions was taken to the opinion of the Court in the following words: 'Trespass sur le Case, in the Common Pleas, Philadelphia County: And now the 6th day of February 1788, upon the trial of this cause, the Council for the Defendant, under the Pleas of Non Assumpsit, payment, and defalcation, and, in order to maintain the same issue, offered to give in evidence a certain bond, or obligation, of the said Ludwig Kuhn (prout obligation) assigned (prout assignment) entered into by the said Plaintiff, before his discharge under the Insolvent Act, and prayed, that the monies thereon

Page 1 U.S. 452, 453

due might be defalked against the said Ludwig Kuhn's demand, which it was argued, had commenced after his said discharge. To this the Counsel for the Plaintiff objected, and prayed the Court not to admit the same obligation and assignment thereof in evidence; to which the Court assented, and over-ruled the testimony. Whereupon the said Counsel for the defendant, did, then and there, on behalf of the said defendant, except to the said opinion of the Court, and did then and there request of the said Court to put their seals to this bill of exceptions, which was granted accordingly.' To the bill of exceptions a memorandum was subjoined by the Counsel, on both sides, stating, that the Plaintiff below had notice of the bond and assignment before the suit brought, but not before the sale and delivery of the goods by him to the defendant. The refusal of the Court of Common Pleas to permit the bond and assignment, to be given in evidence, was the error now alledged; and, on the 26th of September, the case was argued by Levy, for the Plaintiff in Error, and Sergeant, for the defendant. Levy. Before the acts of assembly are particularly examined, it may be proper to consider some of the inconveniencies that existed, in such cases, at common law. Goods delivered in part might, perhaps, be given in evidence in an action of Assumpsit, by way of mitigating the damages, but not under a plea of payment to a specialty; nor could the defendant discount any note, bill, bond, recognizance, or judgment entered into by, or obtained against, the Plaintiff. This necessarily multiplied suits and costs; and, it often happened, that a Plaintiff, in desperate circumstances, recovered against a defendant to whom he was, in fact, indebted in a greater firm. If, indeed, by accidental circumstances, his action was brought to a conclusion, earlier than the defendant's cross action, he might receive the money, and for his larger debt, become utterly insolvent, by the time the defendant had obtained a judgment. Inconveniencies of this kind have been perceived by the Legislature, or judicial power, of the most enlightened nations, and a remedy, in a greater of less degree, provided. See Lord Kaim. Prin. of Eq. 201. 2. 3. 4: 5. and, in England, even before the statutes had given relief in the Courts of Common Law, the Courts of Equity endeavoured to provide for such cases. Show Ca. in Parl. 17. 1 Vern. 121. 2. 2 Vern. 428. 9. Case 390. 2 P. Will. 128. In Pennsylvania there are two Acts of Assembly that treat of this subject. 1 State Laws 48. and Ibid. 165. It is observable that the first general provision by the former act, passed in 1705, was twenty-two years previous to the first general provision of the same nature in England, which was not till the 2 Geo. 2. c. 22. sect. 13. The latter Act of Assembly, however, is copied, almost verbatim, from the 2 Geo. 2. c. 22. and is posterior in point of time. These two Acts of Assembly, made in pari materia, are, then, to be considered as remedial laws, and must receive a liberal construction: [1 U.S. 452, 454]

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