Cummin v. Wilson , 2 Watts 13 ( 1833 )

Per Curiam.

An act which violates a positive legal prohibition is void; as in Allison v. Rheam, 3 Serg. <f- Rawle 139, where a capias ad satisfaciendum, executed in the first instance, was held to make the party who issued it a trespasser. Here a rule of reference by the plaintiff before declaration filed, was positively forbidden; and the rule actually entered was therefore void. What then, on a discovery of his error, was the plaintiff to dol Certainly not to incur costs by proceeding on a rule which could have produced no other consequences to either party. It was not for such a case that the penalty was provided, but for those where the opposite party might be baffled by recourse to a reference as a measure of delay, with a design to abandon it when the object of it should be accomplished. No such object could be accomplished by what was an absolute nullity; nor consequently was the penalty incurred by the abandonment of it. The direction therefore was erroneous, that the want of a declaration at the entry of the rule was not fatal to the plaintiff’s right to recover.

Judgment reversed.