defendant is worth nothing; for he can be ready with his insolvent papers, and be discharged at once.

And what does the section relied on mean, above recited?

Why, simply this: that in fornication and bastardy, and fine, he shall not make his application for discharge under the insolvent laws, till he has suffered three months' imprisonment. His application for discharge, not the discharge itself, is the subject matter of this proviso.

This is a case of costs of prosecution, and how does this same section relied on dispose of that?

"The Court shall have power to discharge such person, on his making application and conforming to the provisions herein before directed in the case of insolvent debtors."

And what are the provisions herein before directed in the case of insolvent debtors?

Why, that a man who is imprisoned on a capias ad satisfaciendum, for a test or quasi test, where an individual and not the Commonwealth of Pennsylvania is plaintiff, and where the proceedings are not in the Quarter Sessions as here, but in the Common Pleas or District Court, for damages in a civil suit, the prisoner "shall not be entitled to be discharged from such imprisonment until he shall have been in actual confinement during a term of at least sixty days." Act 16th June, 1836, sec. 17. Sec. 47 is relied on. Sec. 17 is a provision herein before directed.

The only doubt that could arise in the mind upon the meaning of section 47, of Act of 16th June, 1836, the section the counsel of the applicant relies on, would be this: not whether a person sentenced to pay costs can forthwith be discharged, on filing his insolvent bond, as the counsel urges; but whether the applicant, after having been confined three months in prison, must, in addition to this, suffer a further detention pending his petition, and this question is not now before the Court. If this doubt would amount to anything, it is easily settled.

Chapter 522, secs. 1 and 3 are likewise provisions hereinbefore directed. Sec. 1. This is a sentence for the payment of

money.

Sec. 3 is in these words:

"But no debtor shall be entitled to relief under this act unless he shall have resided within this Commonwealth for six months immediately preceding his application to the Court, or shall have been confined in jail for three months immediately preceding such application."

Thus, it appears, a non-resident must remain in prison six months, and one who has resided six months within this Commonwealth must remain in prison three months; not before he is discharged, but before he files his petition for his discharge under the insolvent laws.

The Act of 11th April, 1848, sec. 2, is in these words:-
:-

"Any applicant for the benefit of the insolvent laws, who is or may hereafter be in confinement under sentence of any criminal Court, and who shall be entitled to be released from such confinement, on a compliance with the provisions of existing Acts of Assembly, shall be released on giving bond, as in civil cases."

Brightly's Reports, page 462, Feehan's Case.-Daniel Feehan was confined in prison for non-payment of a fine imposed by the Quarter Sessions. The case was a mandamus to the Court of Common Pleas, and the Prothonotary of said Court to permit Daniel Feehan to file an insolvent bond.

The opinion of the Supreme Court was delivered by Bell, Justice, where the following language is used:

"Under the Act of 11th April, 1848, relating to insolvents, an applicant who is in prison under a sentence to pay a fine, is not entitled to a discharge until he has been in prison for the term mentioned in prior laws, viz., for the period of three months. Motion refused."

The applicant is in prison under sentence of a Criminal Court. This decision of the Supreme Court, without further reference to Acts of Assembly, is full to the point, and decides this case, and cuts off all argument upon the subject. It finally settles the point and the practice.

In a note to the report of this case, it appears that owing to the opinion of the Supreme Court being mislaid, it was not printed

in the State Reports. But its authority is not thereby impaired. Its binding force controls this Court.

This prisoner is no object of compassion; he, with a strong arm, took possession of a public, or a common school-house, armed, garrisoned, and provisioned; his provisions were chiefly whisky; he indicted the directors for forcible entry and detainer, who were acquitted, and he made to pay the costs. If the jury had not inflicted the costs upon him, he would probably have been bound over to answer, at the next term, for forcible entry and detainer himself.

Petition dismissed at the costs of the petitioner.

See Schwamble v. The Sheriff, 10 Harris 18; Commonwealth ex rel. v. Superintendent, 7 Phila. 75; Commonwealth v. Long, 5 Binn. 489.

In the Circuit Court of the United States for the Western District of Pennsylvania.

YEATMAN ET AL. v. HENDERSON ET AL.

(Vol. I., p. 13, 1853.)

1. A plea in bar cannot be withdrawn, after the case has been prepared for trial, in order to file a plea in abatement.

2. A discontinuance, though required to be by leave of Court, is generally entered without such leave, which is presumed, unless the defendant interfere and ask the Court to withhold leave, on account of the discontinuance being oppressive.

ON motion to withdraw plea in bar and file plea in abatement.

IRWIN, J.:-This motion has been argued as if the only question before the Court was the power of the Court of Common Pleas of Lawrence County to strike off the discontinuance of the suit before them, and of the right of the plaintiff to discontinue his suit there without leave of Court. This was arguing the validity of the plea before it was filed, while the only question was the right of the defendant to enter such a plea at this time. A plea in abatement not being to the merits, is considered a dilatory plea, and re

ceives no favor from the Court. It is a stringent and unbending rule of law, with regard to these pleas, that they must be pleaded in a preliminary stage of the suit, and must be put in within four days after the declaration has been filed. It cannot be put in after a general imparlance. A Court has refused to permit the general issue to be withdrawn to let in a plea in abatement, where the defendant swore that the general issue was pleaded without his knowledge, and by a person whom he never meant to retain as attorney. Anon., 3 Caines 102. In that case, too, the plea was delivered in time. But in the present case, the time for pleading a dilatory plea is not only gone by, but the defendant has pleaded in bar-the cause is at issue-parties have taken their depositions and prepared for trial at this, the second term. No instance can be found where a Court has permitted a plea in bar to be withdrawn when the cause is down for trial, in order to permit a defendant to plead in abatement, nor is there any sufficient reason for the exercise of such a discretionary power, if the Court possessed it.

The defendant desires to plead the pendency of another action in Lawrence County, while the fact that such action is pending has been brought about by the defendant himself, since the time for pleading in abatement in this suit has passed and a plea in bar pleaded. The action in Lawrence County has been discontinued by plaintiff and costs paid, before this suit was brought. A discontinuance, though required to be by leave of Court, is in practice, ninety-nine cases out of a hundred, entered without such leave, which is presumed, unless the defendant interfere and ask the Court to withhold leave, on account of the discontinuance being oppressive. When process of Court is by arrest of the person and demand of bail, a discontinuance followed by another arrest is oppressive and ought not to be permitted. In the present case it is a mere contest as to which party shall have his choice of a tribunal. The revival of the action in Lawrence County is the act of the defendant, to trip up the plaintiff in his suit in this Court, and that too at the second term, after issue and preparation made for trial. No precedent can be found for the use, or rather the abuse, of the discretion of the Court (if they have such a discretion), by granting leave to a defendant

under such circumstances to withdraw his issue, and commence a game of sharps or special dilatory pleas, at this stage of the pleadings, and we are not willing to make the first.

See Riddle v. Stevens, 2 S. & R. 537; Wilson v. Hamilton, 4 S. & R. 236; Witmer v. Schlatter, 15 S. & R. 150; Chamberlain v. Hite, 5 Watts 373; Irvine v. Bank, 2 W. & S. 209; Tams v. Hitner, 9 Barr 447; Beitler v. Study, 10 Barr 418; Coates v. M'Camm, 2 Browne 173; Good Intent Co. v. Hartzell, 10 Harris 277.

In the District Court of Allegheny County.

MATHEWS v. PARK.

(Vol. I., p. 23, 1853.)

The interest arising from a legacy may be levied and attached in the hands of the executors, to satisfy the debts of the legatee.

THE opinion of the Court was delivered by

WILLIAMS, A. J.-This is an attachment execution issued on a judgment obtained in this Court, July 24, 1849, for one hundred and thirty-nine dollars and thirty-eight cents (No. 296, July T., 1849), at the suit of Seth Mathews against Robert W. Park.

The attachment execution was issued against Robert W. Park, defendant, and James Park, Jr., and David E. Park, as garnishees, on the 17th April, 1850, and was served the same day on the garnishees. (Pro ut sheriff's return.)

The garnishees in their answer to the interrogatories filed by the plaintiff, denied that they had in their hands at the date of the issuing and service of the attachment execution, any moneys, &c., in their hands belonging to said Robert W. Park, subject to be levied and attached under and by virtue of the attachment execution, issued on the judgment against the said R. W. Park.

Upon the trial of the issue joined upon the plea of nulla bona, the jury found the following verdict, viz.: "That the garnishees had in their hands at the date of the service of the writ of attachment, moneys belonging to the defendant, R. W. Park, and pay