Johnson v. M'Coy
Pennsylvania Court of Common Pleas, Philadelphia County
ON the 8th of November 1834, the plaintiff sued out a capias ad respondendum, returnable on the first Monday of December following, on which day, special bail was entered with the prolhonotary. March 13th, 1835, the plaintiff filed a statement of his cause of action, and on the same day entered a rule of reference under the compulsory arbitration act. It did not appear that arbitrators had been chosen.
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ON the 8th of November 1834, the plaintiff sued out a capias ad respondendum, returnable on the first Monday of December following, on which day, special bail was entered with the prolhonotary. March 13th, 1835, the plaintiff filed a statement of his cause of action, and on the same day entered a rule of reference under the compulsory arbitration act. It did not appear that arbitrators had been chosen. On the 5th of December 1835, Jack, for the plaintiff, applied for a rule on the sheriff to return the writ. He alleged that the sheriff, not having returned the writ, the prolhonotary had acted…
1Per curiam
This application must be denied. If the writ had not been returned, the prolhonotary was not authorized, by the rule of court, to take the bail. His having taken it, then, furnishes some *90presumption that the return had been made. But it is unnecessary to rely upon this. The entry of a rule of reference is, in itself, a waiver of bail. Moulson v. Rees, 6 Binn. 32 ; Phillips v. Oliver, 5 Serg & Rawle 419; Nones v. Gilbaud, 11 Serg. & Rawle 9; Landis v. Bigler, cited in Mechanics Bank v. Fisher, 1 Rawle 347. A further decisive objection is the laches of the plaintiff iu not having made his…
2Cases cited3 opinions
- Mechanics' Bank v. FisherSupreme Court of Pennsylvania · 1828
- Moulson v. ReesSupreme Court of Pennsylvania · 1813
- Nones v. GelbaudSupreme Court of Pennsylvania · 1824