Legal Opinion

Avery v. Seely

Supreme Court of Pennsylvania

Decided September 15, 1841PublishedCited by 3 opinions

ERROR to the Common Pleas of Erie county, This was an action of debt on an insolvent’s bond, brought by Penderson Avery, the plaintiff in error, against Charles W. Seely and Samuel Hays, the defendants in error.

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ERROR to the Common Pleas of Erie county, This was an action of debt on an insolvent’s bond, brought by Penderson Avery, the plaintiff in error, against Charles W. Seely and Samuel Hays, the defendants in error. The defendant, Seely, was arrested in Erie county, by the sheriff thereof, by virtue of a testatum writ of capias ad satisfaciendum, sued Out of the Common Pleas of Luzerne county, at the suit of the plaintiff in this case; and, being thus under arrest in the custody of the sheriff, gave the bond in question, with Samuel Hays, the other defendant, as his surety. The condition of the…

1Opinion of the Court

- The opinion of the Court was delivered by

Kennedy, J.

Although it be true, that generally the command to the sheriff, in the writ of capias ad satisfaciendum, issued upon a judgment, is, that he take the body of the defendant, so that he have him before the Judges of the court whence the writ issued, yet this latter part of the mandate is never, in fact, complied with; nor is it requisite that it should be, as no further proceeding is to be had thereon against the defendant, nor action of the court upon the writ; for, by the execution of it, the plaintiff has obtained the effect of his suit.…

2Cases cited1 opinion

  1. Hutton v. HelmeSupreme Court of Pennsylvania · 1836

3Cited by3 opinions

  1. Page v. StaplesSupreme Court of Rhode Island · 1881
  2. Commonwealth, to Use v. Davis (Et Al.)Superior Court of Pennsylvania · 1936
  3. Proctor v. SchrySuperior Court of Pennsylvania · 1941

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