Where there is an agreement to be responsible | Huntzinger was the president of the same company up to for an uncertain sum due another, the amount may be fixed by a statement annexed to the copy

Capias ad respondendum-Action ex delicto-by Sufficiency of affidavit to hold to bail-Act of 1842-Warrant of arrest-What particularity required in affidavit.

Rule to show cause of action and why the de-cumstances of the case have been alleged in the fendant should not be discharged upon common bail.

Fur

and precisely that this was what the defendant | moneys lawfully received by defendant to the did. It would be unreasonable to require the plaintiff? plaintiff to negative every excuse or defence that It is not pretended that this is within the rule might be suggested, or to state the evidence by of trover and conversion. The requisites of which the claim will be sustained. Even in in- an affidavit in such a case are laid down by Rule dictments the pleader is not required to antici-9, § 29, of the Rules of this Court. It is wantpate and meet any possible defence. All the ing in all the elements of such an action. decisions agree in requiring in affidavits of cause ther it does not aver a larceny or embezzlement of of action only a clear and positive statement of the fund, or that the defendant refuses to pay the foundation of the claim. over or to account for the same, or that he took, converted or applied the same as an officer of the company, without authority of the company. What, then, is the gist of the complaint? Simply (2) If so, is this action founded on contract? that he "fraudulently took, converted, and apThe Act of 1842 has no application to this plied the said sum of money." Fraud is one of This suit is not brought to recover dam- the most general expressions used in the law to Fraudulent conduct ages for breach of a contract express or implied, express any breach of duty. but to recover damages for a tort. The plaintiff may result from the performance or non-peris not bound to resort to the fiction of an implied formance of acts as numerous and as varied as contract that the defendant promised to return the craft of man can conceive or invent for the the money. The money was not taken in pur-purpose of doing any wrong in foro conscientiæ. suance of any contract, but tortiously, and the

case.

Commonwealth v. Fritz, 2 Miles, 336.
Kelly . Kintzing, Id. 181.
Keddeslin v. Meyer, Id. 295.
I Tidd's Pr. 172 and 181.

action is for the tort.

Bager v. Radley, 1 Phila. Rep. 47.

If the Act of 1842 applies to this case, then a warrant of arrest could have been issued; but Hamill v. Ralston (9 Phila. 52) shows that to justify a warrant of arrest a contract, and fraud in its inception, must be shown.

"Proceedings cannot be had under the Act" (1842), said Judge BRIGGS in that case, "unless the affidavit aver facts showing that the fraud alleged grew out of a fraudulent contraction of the debt." And to the same effect is the opinion of LOWRIE, C. J., in Gosline v. Place (8 Cas. 526).

Dec. 4, 1878. THE COURT. The defendant was arrested under a capias ad respondendum, and is detained in custody in default of bail in the sum of $100,000. The affidavit for the capias, made by the secretary of the company plaintiff, sets forth that the defendant, as president of the company plaintiff, collected moneys of and belonging to plaintiff, to the sum of $82,438.96, at various dates (the particulars of which he does not state), during the years 1876 and 1877, and took, converted, and applied the same to the use of a certain firm, called George W. Huntzinger & Co., of which firm he was a member, and that the whole of said sum is due and owing to the plaintiff.

This is a civil process, resorted to for the commencement of an action for the collection of alleged damages for a tort or private wrong done the plaintiff, and the question now presented is whether the affidavit averring the cause of action sets forth with sufficient certainty a tort not having its foundation in a contract, or simply exhibits a breach of contract in not paying over

It applies alike to actions upon a tort as well as upon a contract, and therefore the word "fraudulently" is no explanation of how or why the money was taken, converted, or applied.

To take, convert, or appropriate money is what is done whenever an officer of a company pays a debt due by the company. Wherein does the language of this affidavit differ from what might be a perfectly fair authority exercised by the defendant? It is not, moreover, proper for the plaintiff, by uncertain language, to determine his To hold to bail it must form or right of action. be beyond a question of doubt. (Towers v. Kingston, 1 Bro. 33; Hewitt v. Nicholson, 2 Miles, 322; Loan Co. v. Isaacs, 2 Miles, 145; McCanles v. Frederickson, 2 Miles, 132; Ibid. 165.)

Looking with this view at the affidavit, it has been questioned who is the plaintiff. Is it a corporation or simply a copartnership? If a corporation it should be so averred, to give it a right of action, whilst a copartnership can only commence suit in the names of the individuals constituting the copartnership. A corporation can commence a suit by summons, without averring its corporate existence, but in holding the defendant to bail nothing is taken as an admission or presumption of the right. The importance of this statement of plaintiff's legal status is made apparent, for if it was a mere copartnership, of which defendant was one of the members, his possession and control of the copartnership assets, might be justified in law and equity, and no action at law would lie.

But aside from these objections, do the facts set forth broadly create any other right of action than that founded upon the implied promise or contract of the defendant to safely keep the moneys collected by him for the use of the plain

tiff? He was not obliged to return or keep it in But if we concede for arguments's sake that the kind, and thus a relationship of debtor and credit-plaintiff has a right of action ex delicto, he has or in the civil law sprung up between them, and also one upon the implied promise or contract, any of this money expended or appropriated, and it is well settled that he cannot deprive the fraudulently, if you please, is therefore but a defendant of any privilege he may have by readebt due and owing, as averred in the affidavit. | son of his electing to proceed upon the tort. In The recovery is for a stipulated sum of money, Bowen v. Burdick (5 Penna. L. J. 113), Judge and not for damages for a supposed tort or SHARSWOOD says: "It is in conformity with the wrong, and this claim, unlike a tort, would be spirit of the cases which have been cited to hold good against his estate after death. It is at the that the election of the plaintiff of his form of utmost a debt fraudulently created or contracted action shall not deprive the defendant of the by the defendant, and no other action can be privilege thus secured to him by the law. We constructed upon the language of this affidavit. feel the more confidence in this decision, as the If this affidavit had contained the positive as- same view appears to have been taken by the sertions pointed out, it would have been suffi- Supreme Court of New York in the construction cient, under the practice of England and in this of their statutes, from which our Act of AssemState, prior to the Act of 1842, abolishing im- bly has been almost literally copied," citing prisonment for debt. By that act (Purdon's Brown v. Treat (1 Hill, 225). This ruling was Dig., p. 49, § 51), "No person shall be arrested afterwards affirmed by the same Court, in Badger or imprisoned on any civil process, in any suit v. Radley (1 Phila. Rep. 47), and its correctness or proceeding instituted for the recovery of any has not been since questioned. money due upon any judgment or decree founded For the various reasons assigned error is appaupon contracts or due upon any contracts, ex-rent in the issuing of this capias, and the depress or implied, or for the recovery of any fendant should be released from custody on damages for the non-performance of any con- entering common bail. tracts, etc. Rule absolute.

Opinion by ELCOCK, J.

If therefore it was simply an implied contract, the defendant is exempt from the arrest, and in cases where the debt is fraudulently contracted, Concurring oral opinion by THAYER, P. J. :by a subsequent section of the same act, upon the I agree with the conclusion announced in the plaintiff making an affidavit setting forth to the very clear and able opinion of my brother ELsatisfaction of a judge such fact, as well s the COCK. Considering the importance of the prinfact of the commencement of the suit by sum-ciple involved in the decision, it will not be out mons, the nature of the debt and demand, etc., of place for me to add a few words. The Act it is the duty of the judge to issue a warrant of of 1842, abolishing imprisonment for debt, is arrest against the defendant, and, after examina- one of those great landmarks of legislation which tion of the plaintiff and full notice of what is point, not only to a great change in the law but alleged against the defendant, full opportunity is also to a great revolution in popular sentiments given him to repel every allegation of the credit- and manners. Its provisions are not to be reor to the satisfaction of the judge, and thus ex- pealed by artificial distinctions or nice and subtle empt or discharge himself from arrest. reasonings. For every case which comes within This has always been regarded as a substitution the sphere of its operation it furnishes an exclufor and abolition of the old practice of arresting sive rule. In every such case it is not concurthe defendant on capias where the debt was rent with the old law but supersedes and domifraudulently contracted (Gallagher v. Norcross, nates it. Under the Act of 1836 every male 7 Philada. 623; Berger v. Smull, 3 Wright, 315; person not possessed of an unincumbered freeHamill v. Rawlston, 9 Philada. 52). To arrest hold of the value of fifty pounds was subject to a defendant upon the naked allegation of the arrest in any personal action. Females were by plaintiff, and hold him in heavy bail without an the 6th section exempted from arrest for debt. opportunity for a hearing to await a trial which The Act of 1842 abolished imprisonment in all may not take place for many months, is a hard- cases of debt arising upon any contract, "exship not at all in consonance with modern juris- press or implied," except in cases where the prudence or legislation, and particularly where, debtor fraudulently contracts the debt, is guilty even if judgment were entered against the de- of a fraudulent concealment of his property, or fendant after trial, all the plaintiff could enforce, has made, or is about to make, a fraudulent dison failure to pay the debt, would be the insolv-position of it. For the excepted cases a special ency of the defendant and his consequent dis- remedy was provided, which is a warrant of ar charge under the terms of the insolvent laws. rest specially allowed by a Judge upon an affidavit Hence great certainty has always been required of the plaintiff setting forth particularly the facts in such affidavits. upon which the application is based. A warrant

of arrest will not be allowed upon a general treat it either as a tort or a debt fraudulently charge that the defendant has committed one of contracted. But it is perfectly well settled by the several acts mentioned in the 3d section of the cases which my brother ELCOCK has cited, the Act of 1842. It must be so particular and that where a plaintiff has an election to bring his circumstantial in its statements as "to establish action either in form ex delicto or on the conto the satisfaction of the Judge" the particular tract, he can not by such election deprive the deaccusation which is made against the defendant. fendant of any substantial privilege. Where a The affidavit required is an affidavit containing debt has been fraudulently contracted, and the not only a specific charge, but also, in the lan- plaintiff desires to commence his action by arguage of the act, "satisfactory evidence" of its resting the defendant, he must proceed in accordtruth. Now this is altogether a different kind of ance with the provisions of the Act of 1842, and affidavit from the affidavit to hold to bail, or to apply to a Judge for a warrant of arrest. He can show a cause of action at common law or under not pass by the Act of 1842, and by electing to the Act of 1836. In such an affidavit, where consider the defendant's liability as resting upon the cause of action was a debt due by the de- a tort instead of a contract, issue a capias under fendant, it was only necessary to set it forth in the the Act of 1836. The defendant is entitled to most general manner. It was sufficient to set it the benefit of the Act of 1842, and to insist upon forth with the same certainty required in a plead- the affidavit which that act requires before he can ing. Thus, for example, an affidavit that the be arrested. This is a privilege guaranteed to defendant was indebted to the plaintiff in the him by the Act of 1842. It is a substantial privi sum of £50 for goods sold and delivered by the lege, for by it the question of his arrest and the plaintiff to the defendant at his request, was a sufficiency of the plaintiff's affidavit are referred good affidavit of the cause of action, although it to the determination of a Judge, instead of the conved to the defendant no satisfactory infor-will of the plaintiff. He can not be deprived of mation regard to the debt with which he was charged. Such general affidavits are not sufficient under the Act of 1842. And no Judge would be justified in allowing a warrant of arrest upon a general charge of fraud not setting forth the particular facts and circumstances by which the fraud is alleged to have been practised.

this privilege by any circumstance so trivial as that which may determine the form of action which the plaintiff may elect to bring. Whenever the foundation of the action is a contract, and the defendant is charged with a fraudulent contract, either in the inception of it or the execution of it, the case is within the provisions of the Act of 1842, without reference to the form of action adopted.

C. P. No. 4.

Oct. 5, 1878.

Neafie v. Conrad. Practice-Setting aside sheriff's sale- Misdescription in one of several newspaper advertisements-Inadequacy of price.

Rule to set aside sheriff's sale.

In the present case the affidavit is altogether too vague and general, too deficient in its statement of facts and circumstances to have been the foundation for a warrant of arrest under the Act of 1842. Nor did the learned counsel for the plaintiff contend that it was sufficient under that act. On the contrary they insisted that the proceeding was under the Act of 1836, and that, having in their affidavit charged a tortious misapplication of the plaintiff's money, they were entitled to issue a capias under the Act of 1836. I do not doubt that their affidavit is a good affidavit if they were entitled to proceed against the defendant under the Act of 1836. But were they entitled to do so? I think it quite clear that they were not, for the reason that their affidavit discloses the fact that their cause of action arose upon a contract both express and implied; an express contract by virtue of which the defendant was authorized to collect, and did collect The depositions showed that the defendant for the plaintiff the money which he received, knew of the misdescription, and had also read and an implied contract to pay it over to the the correct announcement of the time and place plaintiff, which it is alleged he violated, applying of sale in the Legal Intelligencer; that the price the money to his own use. That was undoubtedly a tortious application of the money, and therefore a tort, but it was also a debt fraudulently contracted. It is capable of being regarded in either light, and the plaintiff, if he had commenced his action by a summons, might, at his election,

In this case the property was misdescribed in the Evening Telegraph, as consisting of four frame houses erected upon a lot 20X18 feet, when in fact the size of the lot was 20×181 feet. The property was correctly described in the Legal Intelligencer, and there was no allegation of misdescription either in the hand-bills or in the other newspapers.

was considered inadequate, although there was no evidence that such result was produced by the misdescription complained of, or that any one was prevented from purchasing thereby. Cornman, for the rule.

The defendant was not notified of the time

aside.

Pile, contra.

It has been frequently decided that where the defendant had actual notice of the sale, the Court will not consider the fact of want ot notice, as required by the Act. The defendant swears he knew of the sale; that he did not attend it; and that he did not know of any possible higher bidder being deterred by this very palpable printer's

error.

Oct. 7. 1878. Rule absolute.

C. A. V.

On the part of the schooner there was testimony that at the time of the collision she was on her western or port tack. That the captain, his son, and the steward had gone below, but the captain had come on deck before the collision, that they had proper lights (red and green) and a man in the bow as a lookout. This man, however, was that he was not forward and did not report the attending to the sails, and there was evidence

steamer to the man at the wheel. No one on the schooner saw the steamer until the two vessels were very close-almost twenty or thirty yards off and then saw only the bright light and heard two whistles.

The captain of the schooner testified as to the course of his vessel, and that it was impossible that the steamer could not have seen the light much sooner.

It was a rather stormy night, and the schooner

U. S. District Court-made no effort to exhibit a lighted torch.

Whiting."

J. Warren Coulston, for the schooner.

The direction of the wind compelled the schooner to tack as she did, and the steamer is in fault for not keeping out of the way.

It is impossible, in view of the course of the schooner, that the red light was not visible long enough before the collision to have prevented it had it been seen.

As to the torch, inasmuch as the failure to exCollision-Lights-Torch to be exhibited by sail-hibit it did not contribute to the collision, the ing vessel upon approach of steamer-A steamer schooner was not guilty of contributory negli seeing but one light of a sailing vessel until too late to avoid a collision, held, under the evidence, responsible-Half damages.

Libel, for collision, by Pickering, master of the schooner Margaret, against the steamship Catharine Whiting.

Upon the night of November 2, 1877, the steamer Catharine Whiting was proceeding up the river Delaware in mid-channel, nearly opposite Salem creek, under steam, at the rate of about six miles per hour, with proper lights, and a good and sufficient lookout. The tide was about flood, and the wind blowing up the river.

The schooner Margaret, a small vessel, was beating down and tacking, and at the moment of collision was heading S. S. W. and was struck on the port side, and sank. She had proper lights, but did not exhibit a lighted torch upon the approach of the steamer.

The witnesses for the steamer testified that they saw nothing but the green light of the schooner

gence.

The Tonawanda, 1 WEEKLY NOTES, 497. M. P. Henry, for the respondent (steamer). The testimony proves conclusively that the schooner did not exhibit a lighted torch, and is, therefore, in fault, and that the steamer had a good and sufficient lookout, and did not see the red light of the schooner until it was impossible to avoid the collision.

The schooner must, therefore, have changed her course when immediately in front of the steamer, and is therefore responsible.

The Wenona, 8 Blatchford, 507.

THE COURT (CADWALADER, J.) held both vessels to be in fault, the schooner for not exhibiting a lighted torch, and the steamer for not seeing sooner the red light, its failure in that respect not being sufficiently explained. Decree entered in favor of the schooner for half damages, with costs.