
    WOLFE VS. YOHN.
    A freeholder arrested in a capias ad respondendum in slander, can have the-writ abated with costs.-
    Error to the Common Pleas of Lancaster County ; No. 292 Jan. Term, 1884.
    This was a case of capias in tresspass, in the case sur slander. Henry E. Wolfe, the plaintiff, on the 27, Apr. 1883, caused a capias ad respondendum to issue out of Common Pleas of Lan- • caster County, having first made and filed an affidavit, as required by the rule or court, and on the same day, John H. High, Sheriff of said county, returned said writ of capias ad respondedum, C„ C. et B. B. in the sum'of$20,000. On the 28th of Apr., 1883, the said Edward E. Yohn, defendant, presented his petition to the Court of Common Pleas, setting forth the above facts, and also, that the said defendant was, at the time of issuing said capias^ and had been for more than two years, prior thereto, a resident in this commonwealth, and was possessed of a clear estate, and dwelling house, worth 50 pounds, current money of America being a clear estate ; claiming, that said defendant was privileged from arrest, under the act of Assembly of 1724, and ’25, Pur. Dig. page 48, PI. 46, being a freeholder, and further praying the court to abate the writ of capias ad respondendum, and allow said defendant 30 shillings cost to be paid by said jfiaintiff. The ■court granted the prayer of the petition, and directed a rule to be entered, returnable forthwith, and made it absolute. On May 1, 1883, the court granted a rule on Edward E. Yohn to show cause why the said ordter should not be rescinded, and the said writ of capias ad respondendum reinstated, and the said 30 shillings .refunded to said plaintiff by said defendant, which said rule on argument was discharged on Aug. 18, 1883, in the following opinion per.
    Patterson J.
    'The Rule above cited must be discharged.
    That the old statute of 1725 in reference to the issuing any writ of arrest against a defendant exempt from arrest, is still in force cannot be doubted.
    The Court was well satisfied of that on April 28, 1883, when the Defendant in the above action on that day, first showing that the writ of capias has been issued on the preceding day — the 27th — made his motion on affidavit filed, alleging his freehold, {which was not disputed) that the said writ be abated, &c.
    Accordingly the Court holding, under that statute, that “a free-holder who is privileged from arrest on a capias will be ■entitled uuder such circumstances to have the writ quashed,” the Order abating the writ was made.
    That said old statute of 1725 was operative ever since the Act of 1838 seems to have been the unform judgment of the Courts from that period up the present time. In the absence of any decisions of the Supreme Court we must be governed by our convictions and the decisions of the lower Courts; the. latter have been unformly. in the same direction.
    We refer to some : See— Blakiston vs. Potts, 2 Miles 388, decided in 1840. Dobson vs. Fitzpatrick, 2 W. N. C. 186.
    Thayer, Pres. Judge: “A freeholder does not waive his exemption from arrest on a capias ad respondendum by moving to reduce the bail on which he is held. Rule absolute, to abate writs of capias with costs.”
    Buckman vs. Jones, 3 W. N. C. 302 ; “Defendant proved himself a freeholder ; Court abate the Writ with an allowance of thirty shillings costs.”
    Ingersoll vs. Campbell, 10 W. N. C. 553; Defendant entered his plea of freehold on October 8,1881. Capias had been served September 20,1881, returnable October 1st, 1881. “Rule to quash capias made absolute,” and the Court added that “in the absence of any decision of the Supreme Court we considered it to be a hardship to limit the Defendant in entering his claim of freehold.”
    The only exception seems to be when a privileged and unprivileged person unite, in a joint trespass, and both are sued in one action: the former loses his privilege — Beale vs. Hoag et. at 13 W. N. C. 193. But that is not the case before us.
    Rule discharged.
    Wolfe then took a writ of error complaining of the action of court in discharging the rule, to show cause why the said writ of capias ad respondendum should not be reinstated.
    C. C. Kaufman and T. H. Holihan, Esqs.
    
    argued, that the act of June 13th, 1836, P. L. 572 to 579, repealed the act of 1725.
    
      J. M. Brown, Esq. contra,
    
    argued, that though the act of March 20, 1725,- was supplied hy the act of 1836, the portion of this act of 1836, which is not inconsistent with the act of March 20,1725 was repealed by the act of Apr. 18, 1838, P. Laws 458 ; which also provides, that all former laws, which were repealed or supplied, by the 4th and 5th sections of the act of June 13, .1836, are revived as fully and effectually, as if specially reinstated. Lynd vs. Biggs, 1 Clark, 18, decides that the act of 1725 is in force. See, also, Blakiston vs. Potts, 2 Miles, 388; Dobson vs. Fitzpatrick, 2 W. N. C. 186; Buckman vs. Jones, 3 W. N. C. 302; Ingersoll vs. Campbell, 10 W. N. C. 553.
   The Supreme Court affirmed the judgment of the Court of Common Pleas, on the 2nd of June, 1884, in the following opinion :

Per Curiam.

The act of 20 March, 1725, 1 Sm. Laws 164, P. Dig; 63 Pl. 47, lhas never been repealed. As it remains in full force it controls this 'case. The act rests on sound reason. In a civil action arrests should not be encouraged when ample security is otherwise given to the plaintiff for the collection of his claim.

Judgment Affirmed.  