Immel v. Stoever , 1 Pen. & W. 262 ( 1830 )

The opinion of the court was delivered , by ,

Smith, J.

At the trial of this cause, in the Circuit Court of Lebanon county, held in March last, by his Honour 3ustice Huston, the plaintiff was nonsuited, principally on the ground, that hé had not entered into the bond, required by the insolvent' law of 1798, before he instituted the action; which nonsuit, the plaintiff after-wards moved the court to set aside. That motion being refused, he entered the present appeal. The act of the 4th óf April, 1798, (to be found in the 4 vol. Penn. Laws, Dall. ed. p. 269,) for the relief of insolvent debtors, formed of itself, a complete system. It provided for the discharge of all insolvent debtors, in term time, and of such as were arrested in execution, in vacation; and directed that every trustee appointed under it, should, before he acted as such, give bond to the commonwealth, with security, in such penalty, as the court should order, &c. It expired on the 1st of May, 1801, but .it was revived by an act, passed the 26th of March, 1808, for one year, and from thence to the end of the next session of the general assembly.

Frederick Stoever, on the 31st of January, 1809, petitioned the court of Common Pleas of Dauphin county, to extend the benefits of this law to him, and on the 6th of March ensuing, was according-3y discharged by that court, after assigning to the plaintiffs, all his estate, in- trust, for the benefit of his creditors. But his trustees did not enter into the bond required by the third section.' This suit was instituted to November term, 1823. The question to be decided is, can the action be maintained 1 It is manifest, from the proceedings of the court ©f Common Pleas, that they were'all founded upon the act of 1798, revived by the act of 1808, and not upon the act of 1730. The legislature then has therein prescribed, that the trustees shall, before they act as such, give bond with security, &c. without complying with that requisition, the plaintiff commenced the present action. If is to no purpose that the insolvent’s estate vested in him, as he contends, by the assignment. . The law expressly restrains him from doing any act in relation to the trust, until he executes the bond directed to be given; nor can the bond; tendered to the Circuit Court, be regarded as a compliance with the third section of the act of 1798, for the Circuit Court had no authority to determine the amount ©f the penalty, or approve of the surety in the bond; and even if it possessed such authority, and had received and approved the bond, which was tendered, the plaintiff would not have been aided; since every suit must be good at its inception, nor can the wantof.a cause of action be supplied by a subsequently accruing right. The act of assembly in question ■empowers the court of Common Pleas to fix the sum for which the bond should be given, and to approve the security. The plaintiff must look to this law for his guide in the proceedings which he may •hereafter adopt, in the execution of his trust. It is only necessary •for us at present to say, that we consider the decision of the Cireuit Court, from which he has appealed, as perfectly correct, and that the judgment must be affirmed.

Judgment affirmed.