1811.

MUNNS against

fendants, for they had been informed of them by two other witnesses, Hudson and Duplanta.

I next proceed to the indictment for the five pieces of DUPONT. parchment sieves &c. Whether or not the defendants were the prosecutors, I cannot decide, I leave that to the jury, though I consider it immaterial.

In the first place, it was asked, what was the ground on which the defendants suspected the plaintiff of feloniously receiving five pieces of perforated parchment, worth five dollars, and the one piece worth one dollar. Wallace, another witness, states on his deposition, that he saw Hanse Pebles cut pieces of sifters of different sizes. Now, was this with the knowledge and consent of the defendants? It did not so ap pear; the witness saw these pieces, when produced in court after they were taken from the possession of the plaintiff'; they were not those thrown on the dunghill; they were the same as delivered by him to Goetz, to make punches; for he confessed to Goetz, that he got them from the parchment sieves, and Hendrickson says, he heard the plaintiff apply to Pebles to get him such pieces, and offered him money for it. Goetz also proves, that the plaintiff's object was to make gain by these pieces of perforated parchment, or parchment sieves, as he wanted punches made, whereby they might be successfully imitated for the Virginia manufactory; after this, can it be said, that any man, knowing all these circumstances, had not ground to suspect that the plaintiff had received these pieces of parchment sieves, knowing them to have been stolen.

This case does not require an examination into the civil cause, which was discontinued on the payment of costs.

The other subject, that the grand jury found a bill against the plaintiff, though they returned another ignoramus, against Hanse Pebles, who cut the pieces out of the sieves, does not prove the want of probable cause; on the contrary, it is pri ma facie evidence of probable cause, and requires strong evidence on the other side, to shew that there was any want of it, and much more that there was malice.

MUNNS

I have now gone through this case, the whole of it pre- 1811. senting these two points. First, the plaintiff must affirmatively prove malice on the part of the defendants; of this you must be satisfied before you can give a verdict for the plaintiff.

Secondly, The want of probable cause; if there be no malice, and there should be probable cause, or if there is malice, but at the same time there is probable cause, the plaintiff cannot recover.

If malice is proved and a want of probable cause, then you must give a verdict for the plaintiff, in such damages as you think proper.

The Jury retired, and the next morning returned to court with their verdict, but the plaintiff suffered a nonsuit.

against DUPONT.

IN THE CASE OF FRANCIS C. SARMIENTO.

RANCIS C. Sarmiento applied to the District Court

FR

for the city and county of Philadelphia, for the benefit of the insolvent laws; an objection was made to his discharge on the ground of this Court having no jurisdiction. The case was argued, but the petition being withdrawn no judgment was pronounced by the court. The following is the opinion President HEMPHILL had formed at that time.

In the case of Sarmiento an insolvent debtor who has petitioned this court for the benefit of the several laws of this commonwealth enacted for the relief of insolvent debtors.

An objection has been made to his discharge, on the ground that this court has no jurisdiction. In order to investigate this question with perspicuity and clearness, it will be necessary to bring into view several of the acts of assembly re

1811.

The Case of
FRANCIS C.

lating to insolvent debtors, and the act giving existence to this court. By the act of the 14th of February 1729, it is declared that if any person or persons charged in execution for any SARMIENTO. Sum or sums of money, not exceeding in the whole, the sum of one hundred pounds, from and after the 25th day of March in the year of our Lord one thousand seven hundred and thirty, shall be minded to deliver up to his or their creditors, all his or their effects, toward the satisfaction of the debts, wherewith he, she or they stand charged, it shall and may be lawful for such persons to exhibit a petition to any of the courts of law within the province, from which the process issued, upon which he, she or they was or were taken or charged in execution, &c. The first section of the act of February the 7th 1765, enlarges the amount to any sum not exceeding 150l to any one person. This sum is still further enlarged by the act of 3d of April 1794, the first section of which provides that from and after the passing of this act the justices of the Supreme Court and the judges of the several courts of Common Pleas of this state, respectively, shall have jurisdiction and power to discharge from imprisonment all persons who now are or hereafter shall be imprisoned for debts or demands, although such debts or demands exceed the sum of 1501 to any one creditor &c. The act of the 4th of April 1798, which is now expired, confined as above the application to the judges of the Supreme courts or to the judges of the court of Common Pleas.

The act constituting this court, contains the following clause to wit: "That there shall be a court of Record esta❝blished in and for the city and county of Philadelphia &c. ❝which shall consist of a president and two assistant judges, "any two of them, in case of the absence or inability of the "other shall have power to try, hear and determine all civil "pleas and actions; real, personal and mixed, and for the "the trial of all such pleas and actions, shall have and exer"cise the same powers, authorities and jurisdictions as are "now vested by law in the court of Common Pleas, provided "that the said court shall have no jurisdiction, either origin"ally or on appeal, except the sum in controversy shall ex

1811.

❝ceed one hundred dollars. In the 2d section, it is provided "that all suits and causes depending in the court of Common The Case of "Pleas &c. shall be transferred to the said District court, FRANCIS C. SARMIENTO. "there to be heard, tried and determined."

This is a court of limited jurisdiction. Previously to the establishment of this court the judicial power of the commonwealth was vested in the several courts then existing; a portion of that power only has been transferred to this court and it is confined to all civil pleas and actions real, personal and mixed, and for the hearing, trying and determinating of these, the court has express jurisdiction. If any power should be wanting to carry into effect the power expressly given, that must necessarily be implied, but the court can go no further.

The words of the act of the 22d of May 1722, giving power to the court of Common Pleas are more comprehensive than the words in this Act, they are as follows "shall hold "pleas of assizes, scire facias, replevin, and hear and determine all, and all manner of pleas, actions, suits and causes civil, personal, real and mixed." Yet by virtue of this law, the court of Common Pleas never were considered as authorised to discharge insolvent debtors; it was necessary to pass special acts for that purpose; neither can the words in the constitution, in favour of Insolvent Debtors avail the petitioner, as the manner, is not prescribed by law, so far as respects this court; and supposing for a moment that the words of the Act of 1729, are broad enough to embrace any court thereafter to be created, still we meet with an obstacle in the Act of 1794, in which the application is expressly confined to the Justices of the Supreme Court, and the Judges of the several courts of Common Pleas.

It has been urged in a zealous and ingenious manner, that the most liberal construction ought to be put upon these acts in favour of personal liberty; this argument is always captivating and is in general, correet; yet it is more peculiarly applicable in cases where there is no doubt as to the jurisdiction over the subject matter; besides in the present instance, the power to liberate from im

1811.

prisonment, must necessarily be accompanied with a power to remand and punish for fraud, it's exercise will also not FRANCIS C. only affect the rights of property, but may lay the foundaSARMIENTO, tion of prosecutions for perjuries.

The Case of

Upon the whole, the Court are of opinion that they have no power to discharge an Insolvent Debtor.

D

SCHOCK against M.CHESNEY.

AUPHIN County, Nisi Prius, coram Justices YEATES

and SMITH, 1805, action on the case; narr, slander ; evidence that they were spoken to a Justice of the Peace with a view to a prosecution. Warrant issued, the party brought before the Justice, the ground of suspicion removed, and discharged on examination. Ruled by the court, and the Jury directed, that an action of slander would lie, and damages must be given, motion for a new trial on this misdirection of the court.

This came before the court in Bank at Sunbury 1808, Chief Justice TILGHMAN expressed himself of opinion that it was a misdirection; YEATES and SMITH were of opinion, upon argument that they had misdirected at Nisi Prius, misled by the authorities then cited.

In support of the verdict it had been argued that an action of slander would lie, because an action for a malicious prosecution would not, and that an action for a malicious prosecution, would not lie because no bill had been sent up to the Grand Jury; that the prosecution must be ended &c.

Justice BRACKENRIDGE, had drawn up the following note, and expressed himself in favour of a new trial.

I incline to think that in this case there must be a new trial, the court seeming to have been mistaken in the point of law, and which went to the defence on the part of the defen