# Penman v. Wayne

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PENMAN et al. verʃus WAYNE.
A
The queftion, therefore, was, whether the Court could, notwithftanding the affirmation field beƒore the writ iffued, enquire into the matter of reʃidence ; in order to determine, on all the cirucmftances of the cafe, whether the Defendant was within the exceptions of the act? It was twice argued, on th 21ft and 23d of May, by Sergeant for the Plaintiff, and Lewis for the Defendant ; and the fubftance of both arguments was as follows
For the Plaintiƒƒ.– The Act of Affembly refts the proof exclufively on the Affidavit of the party, or fome perfon form him ; requiring only that he fhould make the fact, which defeats a freeholder's privilege from arreft, appear to the Juftice who grants the writ. Nor will the fection admit of the divifion for which the adverfe counfel contend ; becaufe, though there is a claufe providing that things fhall not be proved by affidavit, which, in their nature, eftablifh a higher degree of proof ; as judgments, mortgages &c. yet, ​
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even fubfequent to that claufe it is faid, as the Deponent believes; an expreffion which manifeftly relates to the firft part of the fection, and neceffarily connects the whole, If, indeed, the Court were to inveftigate the facts, both parties are entitled to a hearing, and a new and preliminary fcene of litigation would be opened, involved in endlefs difficulties. The Legiflature, therefore, wifely made the filing the affidavit beƒore the writ iffued, the conclufive teft for holding the Defendant to bail ; and, from the circumftances under which the law was paffed, we are authorized to affert, that without thefe eafy exceptions, the privilege itfelf would never have been granted.
But, if the doctrine which the oppofite fide advance is allowed, the 2d and 3d Sections of the act, would contradict each other, inftead of holding that clear and fair meaning, which, taken according to their diftinct objects, they naturally prefent. For, fhould any one, contrary to the fpitir of the 1ʃt Section, iffue a Capias againft a freeholder, then the 3d Section provides a remedy, by directing the Court to ftay all proceedings againft the Defendant, until they examine his circumftance, and if they find he is fuch as the act intended to be exempted, they are required to abate the writ. But this is in the cafe of an arreʃt in the firʃt inʃtance, and not of a Capias founded upon an Aƒƒidavit previouʃly ƒiled, according to the terms of the 2d Section; which terms make a Condition precedent, and, being complied with, the moft wealthy freeholder is fubject to an arreft ; nor can the Court afterwards interfere to relieve him.
For the Deƒendant.– The Act of Affembly upon this fubject is clearly divided into two parts ; firʃt, it treats of thofe cafes which depend implicity on the affidavit of the party, ftating the facts ucomplicated with law ; and ʃecondly, it treats of thofe cafes, which depend on their refpective circumftances, when brought into queftion before the Court. The prefent cafe does not come within the firft clafe, but is fairly within the fecond ; for, having enumerated all the exceptions which may he proved by the oath of the party, or fome perfon for him, the act goes on to ftate the exceptions which are to be made appear ƒrom Records or otherwiƒe; and, the very laft of thefe, is the inftance on which the controverfy arifes.
The Defendant's objection being thus warranted by the letter of the law, will be fupported, likewife, by the principle and reafon of the thing. For, would it not be abfurd to leave it to an illiterate, though honeft, man, to determine what conftitutes a legal reʃidence? or, to fuffer an unprincipled, though cautious, Plaintiff, to take advantage of a fhort abfence, to juftify his fwearing, that the Defendant has not been reʃident within the State, for two years before the arreft ? If the Court cannot an all develops the circumftances, it will make no difference in the cafe, whether the abfence is for a year, or a day ; on a party of pleafure, or a journey of bufinefs ; the privilege of the moft fubftantial freeholder, muft lie forever at the mercy of his antagonift ; and even a continental officer, difpatched upon the duties of his profeffion to anoter ftate, will be equally ​
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liable to this conftructive abridgment of the rights of citzenfhip. A ftronger illuftration of this truth cannot be required, than the caufe before the Court; for, the Defendant has, within the very two years fpecified in the affirmation, reprefented this Commonwealth in the General Aʃʃembly, in the State Convention, and in Congreʃs; and yet, it is contended, that the vague idea of an unlettered individual on the point of reʃidence, fhall be fufficient to deprive him of the privilege of his freehold, and, in effect, to declare him an alien.
There is, however, an effential difference between reʃidence, and abiding in a particular place. It is admitted, that the Defendant did not abide within the State for two years before the arreft ; but, we contend, that, neverthelefs, in contemplation of law, his reʃidence was here: For, a man is always prefumed to reʃide where his family is ; and, though when he goes abroad upon any temporary avocation, he abides in that diftrict to which he goes, yet this does not deftroy his original, domeʃtic, Reʃidence. By one Act of Affembly it is provided, that foreign attachments fhall only iffue againft fuch as are not reʃifent within the State; 1 State Laws 44. And by another act, 1 State Laws 170, it is declared, that no perfon who had not reʃided within the State two years before his imprifonment, fhall have the benefit of the infolvent laws: In thefe cafes, and inthe conftructionof the Poor Laws, and, in fhort, of all the ftatutes in which the word occurs, it has been the invariable practice of the Courts to enquire, to pronounce the law. Thus on the petition of one M Intire for the benefit of the infolvent law, although he had been abfent more than two years and a half; yet, as it was in proof that he was a Native, and always intended to return hither, this Court lately determined that his reʃidence became a matter of law and that the animuem reverlandi was fufficient to prevent his loofing the advantages of it.
What then is the proper interpretation of the act upon this fubject? – That the party fhall fet forth in his affidavit fuch facts, as will enable the Court to draw the legal inference, with refpect to the Defendant's reʃidence ; which, after all, is a technical term, 5 Burr. 2724, and the maxim is well eftablifhed, that a witnefs may fwear to matter of fact, but not to matter of law. This rule, indeed, (which applies in all cafes of evidence) fatisfactorily explains why a disjunctive is introduced in the fection under confideration ; why the provifion in the former part of the claufe, that the Juftice who grants the writ fhall adminifter the oath, is omitted in the later ; and why the words, the Plantiƒƒ, or ʃome other perʃon ƒor him, are dropt, when the fection comes to treat of thofe things which are matter of law ; – for the expreffion as the Deponent believes, at the fame time that it precedes the fentence refpecting the Defendant's refidence, evidently relates to the value of the eftate, and not the mode of proving the incumberances that affect it. But furely the legiflature could not mean to make the judge both of fact and ​
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law in his own caufe, and that without appeal. Holt afferts that an Act of Parliament which fhould authorize fo unreafonable a thing, would be void ; and it is fortune, on this occafion, that a candid review of the law itfelf, does not contenance this abfurdity, which lies only in the Plaintiff's conftruction. The firft claufe defines the Perfons privileged ; the fecond narrows down the privilege by a variety of exceptions; thefe exceptions are either in fact or law ; and the exceptions in law are fuch as muft either be determined by the records themfelves, or by the Court upon a ftatement of the facts on which they arife. If, therefore, it had been intended to leave the matter of reʃidency entirely to the affidavit of the party, the divifion of the fection by the word or, would have been poftponed, and this fentence muft then have been claffed before thofe things which are to be proved ƒrom records or otherwiʃe. Nor is the word otherwiʃe to be confidered as merely diftinguifhing the proofs by record, from thofe by affidavit ; but as meaning fuch other evidence as the common law requires : for, furely it would be as improper, nay, more dangerous, to permit a man to fwear as to the reʃidency of his adverfary, than as to the exiftence of a mortgage or judgment, which he might eafily afcertain, by infpecting the dockets and records in which they are entered.
But, let us fuppofe, that there was no disjunctive in the fection, and enquire, for a moment, whether the Court, even on that ground, have not a right to inveftigate the facts contained in the affirmation ? By the laft fentence of the fecond fection, all the affidavits, taken in purfuance of the act, are directed to be filed : now, this cannot be intended merely to fhew that an affidavit has been made, for that would fufficiently appear from the entry in the dockets ; but as another, more beneficial purpofe, as the real object of the Legiflature ; and will determine, accordingly, that the filing of the affidavits is intended to give the Judges an opportunity of feeing, on any future controverfy, whether the allegations bring the cafe legally within the exceptions of the act. In the inftance of reʃidence, above all others, as few Plaintiffs comprehend the technical import of the word, this provifion feems to be indifpenfible ; and when the 3d fection fays, that if the Court find the Defendant is fuch as by the ac: is entended to be exempted from arreft, it furnifhes a conclufive argument, that they muft examine the evidence produced by the Parties ; for, in order to ƒind a particular object, is is clearly requifite, in the firft place, to ʃearch for it.
Thefe ideas on the fubject are, likewife, corroborated by the uniform practice of the Courts ; which has been to iffue the Capias at once, leaving the proof of the exception,‘till the Defendant makes his claim of privilege. The Defendant in the prefent cafe would be under no difficulty to obtain bail ; but the principal ground of his oppofition is, that if he now tacitly fuffers himfelf to be arrefted, his privilege, by the words of the act, will be forever extinguifhed. ​
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For the Plaintiƒƒ, in reply. Though the beft Freeholder may be arrefted after notice to enter fpecial bail, yet, as this is a compulfory (illegible text), it will not deftroy his privilege in another action. To (illegible text), there muft be a willing fubmiffion to an arreft, by which the affidavit holds out to the world that he is not within the privilege of the act.
Reʃidence is certainly a conftruction of law in a great variety of inftances. Nutbrown's cafe in Foʃter 76. fhews that a man may have feveral places of reʃidence, and any of them may be the fubject of a Burglary. So, by the Poor laws, a man may live in a particular place all his life except one day, and yet not acquire a legal reʃidence ; for, he may be under a certificate, or he may not have complied with the conditions of the ftatutes: And in the cafe of Ambaʃʃadors, although they actually reʃide abroad, their children are deemed natural born fubjects of the realm. 5 Burr. 2724. is grounded on the words of the Act of Parliament. But the Act of Affembly in difcuffion, clearly meant a literal and not a technical and conʃtructive reʃience, or it would not have been made the fubject of an aƒƒidavit, which is to be fworn by perfons not generally poffeffed of technical information.
The decifions under the attachment law, eftablifh a diftinction between inhabitants and reʃidents ; as in the cafe of Lazarus Barnet, where the foreign attachments were quafhed, becaufe he came under the former defcription. With refpect to decifions under the infolvent laws, whether the petitioner has refided in the ftate two years, or not, is a matter immediately before the Court ; but in the prefent cafe, it is a fact to be fworn to in order to entitle the Plaintiff to a certain advantage. The whole law is connected, indeed, by the idea of an affidavit ; and there are many inftances where an incumberance to diminifh the value of the Defendant's eftate may be proved without producing the mortgage or record. For example ; at any time before the acts for recording deed and mortgages ; or, within fix months, fince thofe acts refpectively, evidence might be given of a mortgage in the hands of a third perfon ; or a Serivener might prove that he had witneffed the execution of a conveyance from the Defendant.
The reafon for filing the affidavit, is, that it may appear to the Court what it contain ; for, fwearing to any thing does not entitle the Plaintiff to bail. If, however, it is made in conformity to the act, it is conclufive; then, ( as Lord Mansƒield fomewhere expreffes himfelf) he if fworn, and you have no remedy but to profecute him. The act fays, in all ʃuch caʃes, that is, where the regular affidavit is made, a Capias fhall iffue. This included in the very claufe where judgments are mentioned ; fo that, in ftrictnefs, the exception founded on judgments, ought, likewife, to be accompanied with an affidavit. Nor is this making a man the judge in his own caufe ; for he only fwears to the words in their literal and cuftomary meaning and import. ​
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The law declares that if any Freeholder exempted ƒrom erro, by virtue of this act, fhall happen to be taken by a writ of arreft, the Court fhall abate the writ. But, if an affidavit has been filed agreeably to the 2ʃection, no man can be a Freeholder exempted by the act from arreft ; and, confequently, the Capias, in this cafe, fhall be maintained. The act was evidently the refult of a compromife between contending parties ; one fide obtained a general claufe exempting Freeholders from arreft ; and the other fide, guarded againft this privilege by a Provifo, which, in fact, puts it in the power of any perfon to compel a Freeholder to give bail. But if the Court can enquire into the facts in all cafes, this provifion is a mere fnare ; for fhould the weight of affidavits be eventually againft the Plaintiff, he will not only lofe his action, but be condemned in treble cofts.
Upon the firʃt argument, SHIPPEN, Preʃident, obferved, that there was confiderable ambiguity in the Act of Affembly ; and that he was not fatisfied with refpect to the meaning of the exprefion “ where the Plaintiff can make appear from records, or otherwife,” as it was not fpecified to whom the exception fhould be made appear. He faid that in feveral cafes (one of which he remembered was on Mr. Levy's motion) it had been determined that the fecond fection of the act was disjoined ; and that no affidavit was neceffary to fupport the exception founded upon a judgment, which was the legal teft of its own exiftence, and no other evidene would be received to prove it. He added, at the fame time, that the words , as the Deponent believes, clearly related to the Defendant's not having a fufficient eftate left to fatisfy the Plaintiff's demand ; that it is not neceffary to fet forth the facts in the affidavit is required to hold the Defendant to bail ; that if, indeed, the whole of the fecond fection were connected, it would amount to a condition precedent, and a pofitive affidavit would preclude the Court from any enquiry into the facts ; but, he continued, that the fection was not only disjoined by the words of the act ( in the firft place admitting proofs ƒrom records or otherwiʃe) but alfo by the reafon and propriety of the cafe, which will not permit a Plaintiff, in his own favor, to determine what conftitutes a legal refidence.
Smith, the Prothonotary, being afked as to the Practice, faid, that in fome cafes the affidavits were filed before, but, more frequently, after the iffuing of the writ. If the fuggeftion was, that the Defendant intended to go abroad, the affidavit had always been filed in the firft inftance ; but with refpect to the cafe of reʃidence, he did not recollect any inftance, before the prefent, where that was done.
The president now delivered the opinion of the Court.
SHIPPEN, Preʃident.– We have found fome difficulty in obtaining a fatisfactory idea of the meaning of the fecond fection of this act. It would feem, by the former part, that the exception, upon ​
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which the Capias is grounded, ought to be made appear to the Juftice who grants the writ; but, in the latter part, when the disjunction of the claufe occurs, the expreffion is general, if the Plaintiƒƒ can make appear ƒrom records or otherwiʃe, without faying to whom he fhall make his allegation appear. At firft, indeed, I thought this might alfo relate to the Juftice who grants the writ ; but on a further confideration of the fubject. I am convinced, that unlefs the legiflature intended fomething more, it would never have been provided by the third fection, that the Court fhall ftay all proceedings againft the Defendant, till they eamine his circumʃtances ; for it would have been ufelefs and nugatory to direct that examination, if they were, neverthelefs, bound by the contents of the affidavit.
Befides, upon the principles of common juftice, it is material, that he Court fhould have the power of making an enquiry into the facts ; for, though the Plaintiff's opinion is taken, in the firft inftance, to afcertain whether there is a fufficient eftate left for the payment of his demand ; yet, it would be unreafonable to deprive the Defendant of his privilege, if he could, afterwards, fhew, that independent of a trifling mortgage or judgment, an ample fecurity was left for his adverfary's debt. Nor is the equity of the cafe lefs applicable upon the queftion of reʃidence ; for, an occafional abfence of a month, or a week, might with fafety be made the foundation of the affidavit required by the act ; and, yet who will fay, that is law or reafon, this ought to work a disfranchifement of the Defendant?
The law is explicit, that if the Court find the Defendant is fuch, as by the act is intended to be exempted, the writ fhall be abated: (illegible text) this, furely, alfo implies fomething beyond a mere enquiry, whether an affidavit has been previoufly filed. If the is fuch “ as by the act is intended to be exempted,” is a fentence materially to be regarded in the claufe ; for, otherwife, it would have been fufficient to fay, that if no affidavit is filed, nor any mortgage or judgment is produced, the Defendant fhall be difcharged from the action.
It is evident, upon the whole, that the Legiflature did not mean to fubject a citizen of large eftate to the procefs of a Capias, on an account of a fhort abfence from the ftate ; and, therefore, we are of opinion, that they have left a controuling power in the Court to enquire into the circumftances of the cafe, and to relieve a Defendant from an arreft, if we think he was intended to be exempted, although the words, that he has bot been reʃident may be inferted in the Plaintiff's affidavit.
The Defendant was, accordingly, allowed to controvert the fact, of his not being refident in the State for two years before the writ iffued.