1 U.S. 241 (1788)

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U.S. Supreme Court

PENMAN v. WAYNE, 1 U.S. 241 (1788)

1 U.S. 241 (Dall.)

Penman et al.

Court of Common Pleas, Philadelphia County

March Term, 1788

A Rule had been obtained to show cause why the Capias, which issued in this case, should not be quashed, the Defendant being a freeholder in the county of Chester. It appeared, that, with the Pracipe for the writ, an affirmation of one Rumford Davis, was filed in the Protbonotary's Office, setting forth, that 'the Defendant had not been Resident in this State for two years before the date of the writ;' and, it was contended, that this was sufficient, under the Act of Assembly, to repel the Defendant's claim of privilege. 1 St. Laws 139.

The question, therefore, was, whether the Court could, notwithstanding the affirmation filed before the writ issued, enquire into the matter of residence; in order to determine, on all the circumstances of the case, whether the Defendant was within the exceptions of the act? It was twice argued, on the 21st and 23rd of May, by Sergeant for the Plaintiff, and Lewis for the Defendant; and the substance of both arguments was as follows.

For the Plaintiff. The Act of Assembly rests the proof exclusively on the Affidavit of the party, or some person for him; requiring only that he should make the fact, which defeats a freeholder's privilege from arrest, appear to the Justice who grants the writ. Nor will the section admit of the division for which the adverse counsel contend; because, though there is a clause providing that things shall not be proved by affidavit, which, in their nature establish a higher degree of proof; as judgments, mortgages &c. yet

Page 1 U.S. 241, 242

even subsequent to that clause it is said, as the Deponent believes; an expression which manifestly relates to the first part of the section, and necessarily connects the whole. If, indeed, the Court were to investigate the facts, both parties are entitled to a hearing, and a new and preliminary scene of litigation would be opened, involved in endless difficulties. The Legislature, therefore, wisely made the filing the affidavit before the writ issued, the conclusive test for holding the Defendant to bail; and, from the circumstances under which the law was passed, we are authorized to assert, that without these easy exceptions, the privilege itself would never have been granted. But, if the doctrine which the opposite side advance is allowed, the 2nd and 3rd Sections of the act, would contradict each other, instead of holding that clear and fair meaning, which, taken according to their distinct objects, they naturally present. For, should any one, contrary to the spirit of the 1st Section, issue a Capias against a freeholder, then the 3rd Section provides a remedy, by directing the Court to stay all proceedings against the Defendant, until they examine his circumstance, and if they find he is such as the act intended to be exempted, they are required to abate the writ. But this is in the case of an arrest in the first instance, and not of a Capias founded upon an Affidavit previously filed, according to the terms of the 2nd Section; which terms make a Condition precedent, and, being complied with, the most wealthy freeholder is subject to an arrest; nor can the Court afterwards interfere to relieve him. For the Defendant. The Act of Assembly upon this subject is clearly divided into two parts; first, it treats of those cases which depend implicity on the affidavit of the party, stating the facts uncomplicated complicated with law; and secondly, it treats of those cases, which depend on their respective circumstances, when brought into question before the Court. The present case does not come within the first class, but is fairly within the second; for, having enumerated all the exceptions which may be proved by the oath of the party, or some person for him, the act goes on to state the exceptions which are to be made appear from Records or otherwise; and, the very last of these, is the instance on which the controversy arises. The Defendant's objection being thus warranted by the letter of the law, will be supported, likewise, by the principle and reason of the thing. For, would it not be absurd to leave it to an illiterate, though honest, man, to determine what constitutes a legal residence? Or, to suffer an unprincipled, though cautious, Plaintiff, to take advantage of a short absence, to justify his swearing, that the Defendant has not been resident within the State, for two years before the arrest? If the Court cannot at all develope the circumstances, it will make no difference in the case, whether the absence is for a year, or a day; on a party of pleasure, or a journey of business; the privilege of the most substantial freeholder, must lie forever at the mercy of his antagonist; and even a continental officer, dispatched upon the duties of his profession to another state, will be equally liable [1 U.S. 241, 243]

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