Chase v. Ninth National Bank , 56 Pa. 355 ( 1868 )

The opinion of the court was delivered, January 7th 1868, by

Read, J.

This was a foreign attachment against the defendant, a person not residing within this Commonwealth, and not being in the county in which the writ issued at the time of the issuing thereof. It is alleged, however, by the defendant that he is not within this provision, because, although a resident of the state of New York, and not within the county at the time of the issuing of the writ, he comes within the first section of the Act of 21st April 1858, Pamph. L. 403, being engaged in business in the county of Yenango, and had then and there a clerk and agent upon whom a writ of summons could have been served. It is clear, from the language of this section, that it was not the intention of the legislature to repeal, or in any manner alter or affect the 44th section of the Act of 13th June 1836, Pamph. L. 580, but simply to allow the service of a summons or any writ or process upon a clerk of a person so situated with like effect as though such writ or process was served personally upon the principal — words not applicable to a writ of foreign attachment. The court were therefore right’ in answering the defendant’s 3d point in the negative.

There was a plea in abatement of a former suit pending for the same cause of action. The paper-book of the plaintiff is made so contrary to our rules that it is difficult to ascertain what really passed upon the trial. The plaintiff requested the court to charge the jury,—

1. “ That the question is not whether the debt for which the suit was brought could have been included in the first action, but whether it was so included.”

This the court affirmed.

2. “ That the declaration and copy of claim in the first suit being for a different cause of action from that embraced in the declaration and copy of claim in the foreign attachment, it is the duty of the jury to find that the causes of action were not identical.”

The court, in answer to this point, said, “ Affirmed — if there is no other evidence iff the case. All the evidence is for the jury, and if there is evidence that the checks embraced in the declaration in the second suit or foreign attachment were actually included in the first suit, sufficient to satisfy you from its weight, then you will find the causes of action were identical.”

The complaint of the defendant is, that these questions were given in instructions to the jury, and that the whole was matter of law for the court, to be determined by them from the pleadings. As the plaintiff has not furnished us with the evidence on the trial, we are obliged to decide the correctness of the ruling of the court by its own language.

The first instruction is certainly correct, and the record shows there was evidence beyond the mere record itself, which, under the cases of Seddon v. Tutop, 6 Term Rep. 607, Uhler v. Sanderson, 2 Wright 128, and Converse v. Colton, 13 Id. 346, was clearly admissible, and of course must have been submitted to the jury. There was, therefore, no error in either of these instructions, and no possible injury qould happen to the defendant, who could not be called on in another suit for what was included in the present recovery.

Judgment affirmed.