
    [Pittsburg,
    September 19, 1826.]
    FOSTER against SWEENY.
    IN ERROR.
    Appearance to a foreign attachment, entry of special bail to dissolve the attachment, and confession of judgment by the defendant for a smaller sum than the amount claimed, are not a waiver of the right of the defendant to maintain an action against the plaintiff in the attachment, for maliciously and wrongfully suing put a writ of foreign attachment against him, when he was not within the purview of the attachment laws.
    Error to Venango county.
    
      Edward Sweeny, the defendant in error,
    brought this action on the case in the Court of Common Pleas of Venango county, against James Foster, the plaintiff in error, for maliciously and wrongfully suing out against him a writ of foreign attachment, when he was not, by law, liable to such process.
    From the record, it appeared that Foster issued a writ of foreign attachment against Sweeny, returnable to May Term, 1823, of the Common Pleas of Venango county, by virtue of which the sheriff attached several acres of grain in the ground,and aconsiderablequan-tity of personal property belonging to Sweeny. On the 9th of July, 1823, on motion and affidavit filed, an order was granted for the sale of the perishable property. On the 27th of August, 1823, a motion was made on behalf of the defendant to quash the attachment, which the court after argument overruled. Judgment was entered, on the 28th of February, 1824, and, on the 25th of May, 1824, the attachment was dissolved by the entry of special'bail, in the sum of fifty dollars. On the 1st of March, 1825, judgment was entered for the plaintiff by.consent, for ten dollars and twenty-seven cents, for which a fieri facias issued to May Term, 1825.
    On the trial of the principal action, the plaintiff, to show that he was not liable to the process'of foreign attachment, offered evidence to prove that at the time it was laid, he was in the state of Pennsylvania, to prove also the situation of his family while he was absent from them, and the value of the property attached. The defendant’s counsel having objected to the evidence, the court admitted it, and sealed a bill of exceptions.
    
      Bankes, for the plaintiff, in error,
    said that the judgment of the Court of Common Pleas in the attachment was conclusive. The defendant in that action, having confessed judgment after the entry of special bail, was not entitled to give evidence on the trial of the present action, that he was not liable to a foreign attachment..
    
      Galbraith and ¿lyres, for the plaintiff'in error,
    observed, that the Court of Common Pleas did not decide the question whether or not a foreign attachment would lie, but refused to quash it, because the motion for that purpose was not made at the first term. Miltenberger v. Lloyd, 2 Dali. 79. The fact was, the defendant in.the attachment was out of the county when his property was attached, and did not know of the attachment in time to apply at thé first term for redress by quashing thé writ.
   The opinion of the court was delivered by

Gibson, J.

The motion to quash was overruled, and the defendant had no alternative but to enter special bail or see his property sacrificed for what was in fact not due; for although he afterwards confessed judgment, it was for but a part of what was originally demanded. An appearance, thus extorted, is surely not an admission that the means employed were legal; and a creditor cannot compel payment, even of a just debt, by illegal means. A debtor whose person has been taken in execution, in violation of the act of assembly, which subjects property to execution in the first instance, might undoubtedly have his action after payment of the debt. Having acted on compulsion, the maxim, volenti non Jit injuria, would be inapplicable to him. The injury from an attachment may be not merely speculative. There are junctures in the affairs of every man, in which ruin would be the inevitable consequence .of having his property locked up. in the law; and it would be monstrous, in such a case, to require him either to be a passive spectator till' the consequences should be complete, or to relinquish all claim to indemnity for the past. Beside, he might, by this illegal means, be compelled to enter special bail, when he ought to be discharged on filing common.bail. But it cannot be doubted, that to attach the property of a debtor who is not within the purview of the attachment laws, is an abuse of the process of the court, for which an action lies; and, as we are of opinion that the appearance and confession of judgment were not a waiver of the injury in this particular instance, it follows that there is no error in the record.

Judgment affirmed.  