author: Per Curiam.

text:
    Callender & Co. versus Robinson.
    A., B. and C. entered into an agreement, whereby A. and B. were to have one-half of the net profits, after deducting necessary expenses, of a certain business which was to be carried on in the name of 0. alone, and they permitted 0. to have the ostensible ownership of the whole property, and he obtained credit on the strength of his presumed ownership. The property was seized in execution on a judgment against C. alone: Held, that A. and B. could not prevent its sale for C.’s debts.
    November 15th 1880.
    Before Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, 0. J., absent.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1880, No. 820.
    Replevin by S. N. Callender and P. A. Laffer, trading as Cal-lender & Co., late partners with John E. Denny, under the firm name of John E. Denny, against Thomas Robinson.
    S. N. Callender and P. A. Laffer, partners as Callender & Co., engaged in the wholesale drug business in the city of Meadville, Crawford county, Pa., on the 5th of November 1872, entered into an agreement in writing with John E. Denny, under which Denny was to carry on the retail drug business in Oil City, Yenango county, Pa., under the firm name of John E. Denny.
    The agreement was as follows:—
    • “ Article of agreement made and entered into this 5th day of November 1872, between Callender & Co., of Meadville, Pa., of tbe first part, and John F. Denny, of Oil City, of the second part, for the purpose of carrying on the retail drug business in Oil City, Pa.
    The party of the first part agree to furnish the necessary stock of drugs, patent medicines, sundries and appliances for the said business at prices reasonable to the trade, charging no interest on the partnership account herein represented.
    The party of the second part agrees to conduct the said business to the best of his ability and fidelity, procuring his supplies from the parties of the first part.
    It is mutually agreed that the business in Oil City shall be conducted under the style and firm name of “John F. Denny,” that the charges for rent, fuel, insurance, extra help, freight, &c., shall be first paid out of the receipts of the business, that only such debts shall be contracted in the name of this partnership as are necessary to the proper accomplishment of the intention thereof as herein expressed.
    It is also agreed that one-half of the net profits of this partnership, after deducting necessary expenses, shall be the property of the said party of the second part for services rendered, and the other half of the net profits shall belong to the said party of the first-part in full for their investment in said partnership.
    It is also agreed that at the close of this partnership, the stock furnished therefor shall revert to and become the property of the said party of the first part.
    It is also agreed that there shall be no removal of stock or change of place of business, or manner of business, without the consent thereon written of both parties to this agreement.
    It is further agreed that this partnership shall expire one year from this date, viz.: on the 5th day of November 1873.
    Witness: Callender & Co., first part.
    H. N. Arnold. John F. Denny, seeond part.
    By mutual agreement, the place of business above specified was changed to Butler, Pa., May 1st 1873, and the stock 'of goods removed from Oil City to Butler, other parts of this agreement remaining the same.
    Witness : Callender- & Co
    Wm. Goodwin. John F. Denny.”
    When the stock was removed and the store opened in Butler, the lease, sign, advertisements, drug license, &c., were all in the name of John F. Denny.
    On July 22d 1873, John Berg & Co., bankers, entered a judgment on a note for $350 against John F. Denny and D. Denny & Co., and on same day issued fi. fa. No. 173, October Term 1873. On July 23d 1873, the sheriff levied on “all the right, title, interest and claim of John F. Denny ” in the drug store. This note was given to Berg & Co. to renew a note which Denny had discounted at Berg & Co.’s bank in October or November .1872, and before he was in business with Callender & Co. in Oil City. On the 24th of June 1873, Thomas Robinson became endorser for Denny on a note for $300, due in sixty days (August 24th 1873) at the Producers’ Bank.
    On July 24th 1873, after the writ of Berg & Oo. had been issued, Robinson obtained from Denny a judgment note for $300, and on July 25th entered judgment on the same and issued execution, and the sheriff marked the same levy as had been made on the Berg & Co. writ and dated it the same.
    On August 2d 1873, the goods levied on were sold to Robinson at the sheriff’s sale for $493.10, after due notice as to the title thereto in Callender & Co. under the article of agreement. Robinson took possession of the store and contents, and this action of replevin was brought on August 5th 1873, to recover the possession of the property.
    At the trial, the defendant’s' fifth point with the answers of the court thereto were as follows:—
    5. That Callender & Co., the plaintiffs, having put Denny in a position which enabled him to obtain credit on the strength of the apparent ownership of the store or the strength of his business, they could not, when the goods were levied on by the creditors of John F. Denny, come in and set up or claim that they were partners, and that only Denny’s interest in the establishment could be sold; that they would be estopped therefrom, and they cannot recover.
    “ Ans. This depends on how the credit was obtained by Denny. If for the purpose of the business, then plaintiffs, having kept their interests in the firm secret, could not prevent a sale of the goods as the property of John F. Denny, that being the firm name. That is, if the debts were for money to be used in the business, then we think John F. Denny, under the powers in this agreement, and the fact that the partnership was kept secret, could give an obligation under which the whole title to the goods could be sold and would pass to the purchaser.”
    In the general charge, the court, inter alia, said:—
    “ What makes this question somewhat difficult, somewhat complicated, is the fact that this partnership was in the individual name of John F. Denny. The fact of Callender & Co. being partners was kept a secret. They did not make that known to any one. No one in Butler seemed to know that there was any other person interested in this store but John F. Den-ny alone. We have received evidence, under objection, of John F. Denny’s declarations from time to time to persons dealing with him, that no other person was interested in the store, and that he owned it himself. We have also received evidence that at the time Denny obtained Robinson’s endorsement on the note for which this note was after-wards given, that he stated that he was obtaining that money for use in his business. There is a difference in law between where parties carry on business in the individual name of one of the members of the firm, keeping their interests secret, and where it is made known. Where the interest is kept secret, the power of the partner carrying on the business is greater than where all persons having interests are known to parties dealing, or can be easily ascertained by parties dealing.with the firm. In this case, from the evidence, there was no means by which Robinson or any one dealing with Denny could have obtained information as to there being other parties interested in the firm* except Denny, and when they applied to Denny for that information, he stated that there were no other parties interested in the store. Therefore, from the fact that Callender & Co. put Denny in that position, and there was no other person from whom to obtain that information except Denny, and if the jury believe he did not give the information when demanded, that there were other persons interested, but claimed to own the store himself individually, then we think the law gives to third parties dealing with him whatever rights they would be entitled to if the fact that other parties were interested could have been known, or with reasonable diligence and inquiry ascertained by parties dealing with him. * * *
    “ There is a principle laid down which we think sustains our position here in a measure in Parsons on Partnership, section 360, chapter 10: But a distinction seems to be taken in this respect between the case of a dormant (that is, secret) partner and a known partner. Thus if a man in business have a dormant partner, and a creditor of the first sue him and attach his goods, this attachment shall not be postponed to a later attachment by another creditor who discovers this unknown partner and makes him defendant.’ That seems to us, in a measure, to sustain our position.
    “If Robinson had a judgment against John F. Denny, on a claim that the money raised by that endorsement was for use in his business, and not knowing any other partner there, that judgment could not be set aside in favor of a man who knew there were other partners and had obtained judgment against them. The same principle, if carried out, covers a sale of the goods as against a sale of the individual interest of the partner. We think, too, that there is a difference, and we might as well mention that a different principle applies between a writ against the goods alone and a suit against the-partner. Now, if Mr. Daniel Denny had sued this firm, and Robinson had sued the firm — sued Oallender & Co. and John F. Denny — they would be bound to show, in order to hold Callender & Co., that they were partners, and they would be bound to show that this debt was a partnership debt; but where there is a sale of the goods only of the partnership, then, we think, a writ against one partner alone — the ostensible partner— the parther known to the world, might, in certain cases, pass title to these goods, although it would not hold other members of the firm. But if suit had been brought against the individual, they would have been compelled to make out a different kind of ease from that where the party merely claims to levy on the goods of the firm.
    “ We think, under this agreement, where it is contemplated that two of the persons should be secret partners, these secret partners should not be given the title, where important authority was given to Denny to contract debts in the name of the firm, which was also the individual name of John E. Denny, that they would have if the other partners were known. It is true they tried to restrict the contracting of debts to only those necessary to carry on the business, but they could not restrict him from contracting debts individually, and, having placed him in that position, he has greater power, having put him in possession of the goods, and if he desflt with the public as though he was sole owner of the store, therefore, his powers were greater than if the other partners had been known.”
    The verdict was for defendant, when plaintiff took this writ and alleged that the court erred, inter alia, in the answer to the above point and the foregoing portion of the general charge.

      John M. Miller, Lewis Z. Mitchell and John J. Henderson, for plaintiffs in error.
    1. We contend there was but one question in this case, as the court below admitted, and that was whether the sheriffs sale to Thomas Robinson carried only Denny’s interest in the firm of John F. Denny, or the title of the firm, and therewith the right in Robinson to the possession of the goods; and, to determine this question, the court left it to the jury to ascertain the character of the loans to, or endorsements for Denny — whether to him individually or to the firm. The frequent, uncalled -for, and most pointed references in the charge to Denny’s being contradicted, and to the alleged claim of defendant that the agreement was a fraud, &c., together with numerous statements that the arrangement between Callender & Co. and Denny was kept a secret, made up the greater portion of the charge, and left the case in such shape that the minds of the jury were necessarily strongly impressed with the idea that the court had concluded that the plaintiffs could not, and should not, recover.

      Charles McCandless, for defendant in error.
    The possession of personal property must follow the ownership as against creditors. The plaintiff could not sell Denny the goods on credit and permit him to go into possession of them, and to hold them out to the world as his own, and obtain credit on the faith of them, and hold title to the goods as against Denny’s creditors. It is a fraud in law. ' . .
    The plaintiffs only claim concurrently with Denny, the plaintiffs claiming title until the goods were paid for. Denny taking possession and treating them as his own, it is a fraud in law, and if it was a partnership, such as is claimed by the plaintiff, between them and Denny, it is either exclusive possession by Denny, or concurrent possession of both, and either are fraudulent in law. The plaintiffs, by their acts, enabled Denny to hold himself out to the world as the owner of these goods, by which he got credit and incurred indebtedness, and now the plaintiffs or creditors must sustain a loss.
    The testimony of Robinson is that when Denny got his endorsement, the money was to be put in his business as druggist.
   The judgment of the Supreme Court was entered November 26th 1880,

Per Curiam.

In order to sustain this judgment it is not necessary to establish that the plaintiffs in error were guilty of any specific fraudulent intent at the time they entered into partnership with Denny. While they were in fact in partnership with him under an agreement whereby they were to have one-half of the net profits after deducting necessary expenses, yet the business was to be carried on in the name of Denny alone. They did not file in the office of the prothonotary any statement under the Act of 14th April 1851, Purd. Dig. 1119, giving the names of the members of the partnership, but permitted him to have the ostensible ownership of the whole property, whereby he obtained credit on the strength of his presumed ownership. He held himself out in the community as the sole owner of the stock of goods. • As such he bought and sold, and obtained credit. Under a fair charge the jury has found that at the time Denny obtained the money for which the judgment was recovered, and by virtue of an execution thereon the property was sold, he represented that he wanted it to put into his business. The plaintiffs having thus held him out to the world as the sole owner of the property in his possession, and having permitted him to claim it as his own and obtain credit and contract debts by reason of his possession and claim thereto, why shall not that property be liable for the .debts thus contracted. To hold otherwise would be to permit the secret contract of the plaintiffs to work a fraud on innocent and confiding creditors. We deem it unnecessary to discuss the assignments separately.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Appeal of the Second National Bank of Titusville. Henderson, to use of the Second National Bank of Titusville, versus Waid.
    1. A judgment, in the absence of fraud cannot be collaterally impeached, and it is error for an auditor, appointed to distribute the proceeds of a sheriff’s sale, to go behind a judgment regularly entered upon adverse proceedings without fraud and collusion.
    2. It seems that an usurious contract is not per se a fraud upon creditors.
    3. The taking of usurious interest under sect. 5197 of the Revised Statutes of the United States, and the Act of May 28th 1858, discussed by Paxson, J.
    November 19th 1877.
    - Before Agnew, C. J., Mercur, Gordon, Paxson, Trunket, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1877, No.
    Appeal of the Second National Bank of Titusville • from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Zephaniah Waid.
    The material facts will be found stated in the opinion of the court.

      Roger Sherman, for appellant.

      Guthrie & Bylee, for appellees.
   Mr. Justice Paxson

delivered the opinion of tne court, May 6th 1868.

This controversy has arisen in the distribution of the proceeds of a sheriff’s sale of the real estate of Zephaniah Waid. At the date of the sale the Second National Bank of Titusville held a judgment amounting to $2156.12, and William M. Henderson was plaintiff in a judgment for the use of the same bank, amounting to $1879.73. Waid became the endorser of a note of Shugert & Starr to the bank for $2500 on the 18th’ of December 1872. In a suit subsequently brought on it judgment was obtained on the 29th of May 1873. Before the note was given interest at the rate of ten per cent, had been paid by Shugert & Starr on the debt it represented to the amount of $125.68. When it was given on the 18th of December 1872, a discount at the rate of twelve per cent., amounting to $77.50, was retained. It was the second renewal of a note originally given on the 3d of May, and first renewed on the 6th of September 1872. It was only at the date of the second renewal that Waid became endorser. Upon the proof that usurious interest had been reserved the auditor decided that “ the interest bearing power of the obligation had been destroyed,” and “ a.s there was no point of time in the history of such paper at which it could be freed from the taint of illegality, so it followed that there could be no point of time from which it would bear interest.” Under the view of the law thus taken in the report, the costs, the attorney’s commission of five per cent., stipulated for in the note, charges for protests, and all interest accrued on the original note and its renewals, and on the judgment, were excluded from the allowance made to the bank. There'was also deducted the interest, attorney’s fees and costs accrued in a judgment on a note for $1700, made up in part of an independent note for $1500, previously discounted, and in part of interest and costs of the judgment obtained on the note of Shugert & Starr. On the same ground of usury the sum of $111.99 was deducted from the Henderson judgment.

These rulings of the auditor were affirmed by the court upon exceptions. It has been settled by a line of authority that in the distribution of a fund an auditor cannot inquire into the validity of a judgment regular upon its face : Dyott’s Estate, 2 W. & S. 557; Leeds v. Bender, 6 Id. 315; Ellmaker v. Insurance Co., Id. 442 ; Thompson’s Appeal, 7 P. F. Smith 175. But he may receive testimony to show that since its rendition the judgment has been paid or otherwise satisfied: Borland’s Appeal, 16 P. F. Smith 470; and he may disregard a judgment void upon its face: Brunner’s Appeal, 11 Wright 67; but not because it is merely erroneous: Harris’s Appeal, 5 W. & S. 473; or a fraud upon the debtor: Thompson’s Appeal, supra. All the cases say that the mere fact that the debtor has been overreached and a fraud perpetrated upon him by the creditor gives no right to other creditors to attack the judgment collaterally. So long as it stands as a valid judgment against the defendant it is good against them. They have no right to complain of a fraud upon him. In such cases the only person who can impeach the judgment is the defendant himself, and this must be done by a motion in the proper court to open it. When a judgment is assailed in this way before an auditor, it is his duty, as was pointed out in Dyott’s Estate and Leeds v. Bender, supra, to suspend his decision until its validity can be decided by the court in which it was entered. It would be an anomalous proceeding for an auditor to try the validity as between the parties of a solemn judgment of the court that appointed him, yet more so of the judgment of the court of another county or another state. When, however, a judgment has been fraudulently given by collusion between the debtor and the plaintiff in such judgment for the purpose of hindering and delaying creditors it may be attacked collaterally by the creditors intended to be defrauded: Dougherty’s Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 19; Thompson’s Appeal, supra. As to them such judgment is void. But they can only 'have it set aside as to themselves. They cannot impair it as between the parties.

If, then, creditors may not impeach a judgment before an auditor for a fraud upon the debtor, it follows that, in order to sustain the auditor and the court below, we must go to the extent of holding that the usury complained of was a fraud upon the creditors — a collusive fraud to hinder and delay them. That there was fraud and collusion in fact is not pretended, which drives us to the yet narrower question, whether an usurious contract is a fraud per se upon creditors. It was said in Good v. Grant, 26 P. F. Smith 52, that “ to pay interest in excess of the legal rate is not necessarily fraudulent as to creditors.” And in Miners’ Trust Company Bank v. Roseberry, 81 P. F. Smith 309, it was said by Mercur, J., “whenever the usurious contract is intended to defraud creditors, or when the circumstances of the debtor are known to be such that it can reasonably be presumed that this will be the natural effect, the right of creditors to postpone the excess of interest must be conceded;” but in each of these cases the question whether any one but the borrower could go behind the judgment was left undecided, as it had been left undecided in Vernon v. Carson, 10 P. F. Smith 440. In Greene v. Tyler, 3 Wright 361, it was held competent for a second mortgagee to question in a distribution a prior mortgage on the ground of usury, and in Bachdell’s Appeal, 16 P. F. Smith 386, the syllabus states the point of the case to be that “ an auditor reported that judgment-creditors could question the validity of a prior judgment, on the ground of usury, and reduce a usurious judgment. Accordingly the court below, on exceptions, confirmed the report in this particular.” The decision of the auditor was rested wholly on the authority of Greene v. Tyler. This point was not alluded to by Chief Justice Thompson in delivering the opinion of the court, which consisted of nine lines devoted to reversing the decree, because interest had been allowed on a judgment after the day of sale. No paper book was furnished on behalf of the appellee, and the point was manifestly overlooked by the Chief Justice, who delivered the opinion in the subsequent case of Edwards’s Appeal, 26 P. F. Smith 89. Greene v. Tyler certainly decided that a usurious consideration could be inquired into by a subsequent mortgagee, and, as before observed, Bachdell’s Appeal was ruled by the auditor solely on this authority. It would seem by an examination of the opinion in Greene v. Tyler that considerable stress was laid upon the fact that the.second mortgagee had a specific lien on the very thing sold by the sheriff, and that his lien attached before the judgment was confessed upon the first mortgage, as to which the usury was charged. It also appeared that the mortgage was given for $2000 more than was actually received or loaned thereon. It is not essential, however, to question the soundness of either of those decisions. While the broad question whether usury was a fraud per se upon creditors appears rather to have been assumed than discussed, we may concede those cases to have, been rightly decided to the extent of their own facts. At that time the taking of more than six per cent, interest was unlawful, and subjected the lender to a penalty. It is not so now. The Act of 28th of May 1858, Pamph. L. 622, has made a radical change in this respect. By the first section of said act six per cent, is allowed to be the legal rate of interest, where no express contract has been made for a less rate. The second section recognised the right to reserve or contract for a higher rate, but provides that in such case the creditor shall not compel his debtor to pay more than six per cent.; authorizes the debtor to retain and deduct the amount of the excess from such debt, and when he has voluntarily paid such excess to recover it by an action to be commenced within six months after such payment. It is not therefore now unlawful for a debtor to pay and a creditor to receive more than six per cent. And when it is done in good faith, and in the usual course of business, it would shock the common sense of every intelligent man for any court to say that it was a collusive fraud between the creditor and his debtor to cheat and defraud the creditor of the latter. It may be that such collusive scheme might be covered up under the guise of usury. When it exists it can be as readily detected under the cover of a usurious contract as of any of the other devices which are resorted to for such purpose. But the mere fact that the debtor pays more than six per cent, is not enough to establish a fraud upon creditors. Nor would his refusal to contest the claim against him of itself amount to such fraud. A man who has in good faith contracted to pay more than six per cent, has committed no violation of any law, and is not bound to repudiate his contract. A very large class of honorable and upright men would regard it as dishonest to do so. I do not say that there might not be a case where, in a transaction out of the ordinary course of business, and under circumstances tending to show collusion, a refusal by the debtor to set up such a defence might not be evidence with other matters of an intent to defraud creditors. Such cases must be disposed of when they arise. The recent legislation referred to has,- to some extent, recognisedthe actual wants of business men, and evinces a growing tendency to regard money as an article, the price of which must be regulated by the' law of supply and demand. It has always been so, and it always will be so. No law can enable the thriftless man to borrow money as cheaply as the prosperous man, or to get money when it is scarce at the same rate as when it is abundant.

The appellant in this case is a national bank. Section 5197 of the Revised Statutes allows such banks to charge and reserve such rates of interest as is authorized by the laws of the state where the bank is located, and section 5198 provides that “ knowingly taking, receiving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon.” Thus it will be seen that under the Act of Congress no interest can be recovered upon usurious contracts, while, by the law of this state, the legal interest can be recovered, but no more. While the former uses the word “forfeiture,” and is penal to the extent of the interest, it does not make the entire contract void or even voidable. If, under our Act of 1858, it is not a fraud per se upon creditors for a debtor to pay 'more than the legal rate of interest, it would be straining the law to say that it is so under the Act of Congress.

The whole question of interest is regulated by our own statute. The Act of Congress applies only to the national banks; and as to them the rate of interest conforms to the state'law. When creditors allege that usury is a fraud upon them they must do more than show the payment in the usual course of business of interest in excess of the legal rate.

That is a matter of which the debtor alone can complain. In the case in hand there exists nothing to show collusion to defraud creditors. It follows that they had no standing before the auditor to set aside the appellant’s judgment.

Even in view of the record as it was made up by the auditor the case did not justify the charging the costs of the distribution upon the appellants. The questions were fit to be raised, and the' position of the appellants entitled them to raise them.

The decree of the Common Pleas is reversed, and it is now adjudged and decreed that the fund in court be applied, first, to the costs of the distribution ; secondly, to the city’s claims for taxes, sewer and paving assessments, and thirdly to the judgments in their order for the amounts shown by the record to have been due upon them respectively at the date of the sheriff’s sale. The costs of this appeal to be paid by the appellees.


author: Mr. Justice Mercur.

text:
    Tyrrill versus Lamb.
    1. Where an amendment substitutes a new and different cause of action and debars the defendant of the privilege of pleading the Statute of Limitations, it will not be allowed.
    2. Per Mercur, J. — We think no amendment, except one merely formal, should be allowed without notice to the opposite party. The court will then be prepared to make the proper order relating thereto.
    November 24th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, 0. J., absent.
    Error to the Court of Common_Pleas of Crawford county: Of October and November Term, 1880, No. 269.
    This action was originally covenant brought June 13th 1870, by J M. Tyrrill, administrator of R. S. Tyrrill, deceased, and E.' Simmons, to tbe use of P. Crossman, against Alfred Lamb and John Lamb.
    On the 6th of January 1865, Alfred Lamb and John Lamb, executors of John Lamb, deceased, agreed, by writing under seal, to sell to Robert Tyrrill, F. Simmons and J. P. Penno.ek one piece of land in Harmony township, Venango county, Pa., containing one hundred acres, for the sum of $4000 ; and one other piece of land in Deerfield township, Warren county, containing ninety acres, for the sum of $5000, in all $9000 for the two pieces of land, to be paid $1000 in hand and the balance in thirty days; and, further, to account to first parties for the one-fourth of the excess they might sell said lands for over and above the purchase price. January 14th 1865, endorsed on said article is a receipt for $1000, signed A. & J. Lamb, executors, in the handwriting of Alfred Lamb. Immediately following said receipt is an agreement also signed A. & J. Lamb, and in the handwriting of Alfred Lamb, extending the time for four days. During this four days’ extension, one Wesley Martin, who alleged he was acting for the plaintiffs in this suit as well as for himself, sold the property, or two farms, to Zenus Newell for $21,000. Subsequently to this sale some days Newell received from the Lambs .a deed for the Deerfield tract, and paid on his contract with plaintiff $10,000, as follows, viz. : $4000 to Martin for plaintiffs, and $6000 to the Lambs, whose receipt therefor is endorsed on the original article between the plaintiffs and the Lambs. This receipt is dated February 9th, and is signed A. & J. .Lamb. Both the receipt and signature were in the handwriting of John Lamb. At the time that this $10,000 were paid and a deed taken for the Deerfield tract, the Lambs were not yet ready to make a deed to the Harmony tract, the title to which ivas yet in the Commonwealth. Newell was ready to pay the remaining $10,000 whenever the plaintiffs could make or procure for him a good and sufficient deed to this tract. This was well understood at the time by all the parties in interest, hence the agreement mentioned in the following receipt:
    “ President, February 9th.
    Received by the hand of Z. Newell, six thousand dollars on the within, for which we have made deed of the piece of land in within-me'ntioned Deerfield township, and given to said Newell an°agreement to make deed for other piece as soon . as we perfect title, his paying to us and second parties ten thousand dollars'.”
    In pursuance of this agreement, the Lambs employed Martin to go to Harrisburg and procure a patent. This he accomplished after making two trips. The Lambs were now ready to make title to the Harmony tract, and Newell was ready to pay the remaining $10,000. The parties, that is Martin, acting for the plaintiffs, as he alleged, Alfred Lamb acting for himself arid John, and Newell, went to Oil City where Newell’s money was deposited. Alfred Lamb and Martin made a calculation and agreed as to the amount each was to receive of the $10,000. Newell received his; title made his check to Alfred Lamb for the $10,000, who received the money on it or had it placed to his credit in the bank, and refused to pay any part of it to plaintiffs or to Martin for them. It is this money, or their proportion of this $10,000, and • its interest amounting now to over $8000, which defendant retained, for which plaintiffs brought this suit. The action was originally covenant and brought to June Term'1870.
    The plaintiffs concluding that they had mistaken the form of the action, in September 1873 moved for leave to change it from covenant to assumpsit, which motion was granted.
    J. P. Pennoek, though named as a party to the contract, never signed it. There was. no assignment of the contract to P. Cross-man, nor any evidence that he has a right to sue. The contract was sealed. Martin claimed to have a contract with Alfred Lamb for a division of the money, and alleged that Lamb did not divide as he (Martin) thought he ought to do. There was no evidence of any written contract between the Lambs and Martin, or of any agreement between them, nor that the former knew' of any interest of Martin in the matter, except that they had employed him to go to Harrisburg to take out a patent for the land. Martin was not a party to the suit upon the record in any form. The names of the parties as they stood upon the record at the time of trial, were Robert S. Tyrrill and Franklin Simmons, now for use of P. Cross-man, against Alfred Lamb and John Lamb. The latter was not served with process and did not appear. The declaration was against both, and alleged that the defendants received money which belonged to the plaintiffs, that is, to J. N. Tyrrill, administrator of Robert Tyrrill, F. Simmons and J. P. Pennoek, and these plaintiffs sought to recover from Alfred Lamb,.upon his implied assumption to pay over money he was alleged to have received. To this declaration the defendant, Alfred Lamb, pleaded non assumpsit, non assumpsit infra sex annos, payment, and payment with leave, and .also a special plea, which averred that the plaintiffs had changed their cause of action in this suit more than six years after the same accrued, and that the Statute of Limitations, had barred the same before such change. The court below granted a motion for a non-suit at the conclusion of the plaintiffs’ testimony, and afterwards refused to take it off, which action of the court was assigned for error by plaintiffs who took this writ.

      H. L. Richmond & Sons and J. B. Brawley, for plaintiffs in error.
    If the plaintiff had the right under the Act of 1871, with the sanction of the court, to change his form of action, and, availing himself of this right, did change it, that fact had no effect, one way or the other, on the running of the statute. If the action is commenced within six years, it does not matter that its form was changed after the six years had run. The defendant cannot avail himself of that fact to plead the statute in bar of a recovery: Trego v. Lewis, 8 P. F. Smith 469 ; Steffy v. Carpenter, 1 Wright 43; Smith v. Bellows, 27 P. F. Smith 441; Tatham v. Ramey, 1 Norris 130; Wilhelm’s Appeal, 29 P. F. Smith 121. The necessity. for which the Act of 1871 provides a remedy was upon us. We-could not recover in covenant because there was no condition of the case under which we could charge breach of covenant. Our right to the money we claimed depended not upon any stipulations contained in the articles of agreement, but upon what occurred subsequently, when Newell received the deed for the Harmony tract and paid over the last $10,000. Martin and Alfred Lamb had by settlement ascertained and determined the proportion each was to receive of the last $10,000. In the case at bar our only purpose in changing the form of action was that we might have a “ decision of the case upon its merits.” This we were apprehensive we could not reach in covenant.

      C. Heydrick and Roger Sherman, for defendant in error.
    The court had nothing whatever before it to show thar such change was necessary to a proper decision of the cause upon its merits, and the costs were not paid up to the time of the amendment. We contend that payment of costs, and showing reason why the amendment should be allowed, were positive requirements of the Act of Assembly as conditions precedent to the relief asked for. If the action was not lawfully changed from covenant to case, the former must have been what the court below tried or ought to have tried. There was no evidence to sustain an action of covenant. All the covenants of the defendants as set forth in the article of agreement had been fully performed. If the form of action was properly changed, was there any evidence to sustain the declaration in assumpsit for money had and received ? There was certainly no express contract, written or oral, by which Alfred Lamb was obligated to pay the plaintiffs upon the record any money. The Act of Assembly permits a change in the form of action, but not of the cause, by amendment: Shoneman v. Fegley, 7 Barr 433 ; Smith v. Bellows, 27 P. F. Smith 441; Wilhelm’s Appeal, 29 Id. 121.
   Mr. Justice Mercur.

delivered the opinion of the court, January 3d 1881.

The right of amendment has been very much enlarged by several Acts of Assembly. The Act of 10 th May 1871 gives power to the court, to change the form of action if the same shall be necessary for a proper decision of the cause on its merits. Although the power is thus given, it should be exercised with due regard to the rights of both parties. It should not be allowed so as to deprive the opposite party of any valuable right: Trego et al. v. Lewis, 8 P. F. Smith 468; Kaul et al. v. Lawrence et al., 23 Id. 410; Kille v. Ege, 1 Norris 102; Leeds v. Lockwood, 3 Id. 70. While in a proper case the court may permit the form of action to be changed by amendment, yet the cause of action cannot be so changed: Shoneman v. Fegley, 7 Barr 433 ; Trego v. Lewis, 8 P. F. Smith 468; Royse v. May, 12 Norris 454. When amendments are allowed, a just regard for the rights of all persons interested sometimes requires that the effect of the amendment should be qualified. We think no amendment, except one merely formal, should be allowed without notice to the opposite party. The court will then be prepared to make the proper order relating thereto : Killo v. Ege, supra ; Leeds v. Lockwood, supra.

The facts in this case show the suit was commenced in covenant, in 1870. After it had been pending for nearly three years, on motion, the court permitted the form of action to be changed from covenant to case. During all .that time the cause of action was for a breach of the defendant’s contract under seal, with the plaintiffs. Under the changed form of action, it became a claim for money had and received by Alfred Lamb for the use of one Martin, and the attempt was to enforce it in this action, for the benefit of Cross-man. If any cause of action existed in favor of the legal plaintiffs, covenant was the proper form. The plaintiffs gave in evidence an article of agreement under seal. ' It was made between Alfred Lamb and John Lamb, as executors of John Lamb of the first part, and the plaintiffs, Tyrrill and Simmons, of the second part. It provided for a sale from the former to the latter of two pieces of land, in consideration of a sum specified to be paid therefor. Before the contract was fulfilled by either party thereto, the vendees therein sold the land to one Newell. He paid to the Lambs the residue of the purchase-money due them, and they made and delivered deeds for the lands, to him. It appears when Newell paid this money, in February. 1865, to Alfred Lamb, Martin claimed and demanded of Lamb, a portion thereof, which was refused. That money is the sum claimed in this suit.

As the only agreement entered into between the legal plaintiffs and the defendants had- been fully performed, no right of action under it existed in them. Neither Martin nor Orossman was a party thereto. ■ It does not, therefore, appear that an action, in any form, could be maintained by the plaintiffs against the defendants. If any action for money had and received arose against the defendants, it did not accrue to the plaintiffs ; but to Martin alone. Ilis cause of action was not their cause of action. He did not derive it from them. Their claim was satisfied on the land being conveyed. They had no claim for money against the defendants.

Under precisely what agreement the claim of Martin rested is not clearly shown. It was under some express or implied contract between him and the defendants. It was, therefore, in his own right, and should have been enforced in his own name as the legal party. His right of action accrued in February 1865. The amendment changing the form of action, was made in September 1873, being more than eight and a half years after the alleged right of action accrued. The effect now claimed for the amendment is a right to substitute a new and different cause of action. This cannot be allowed : Koyse v. May, supra. The case of Smith v. Bellows, 27 P. F. Smith 441, does not remove this difficulty from the pathway of the plaintiffs. There the cause of action was the same.

It was too late to commence and maintain a new action based on the alleged agreement with Martin. The right of the defendants to interpose a plea of the Statute of Limitations was to them valuable. This amendment could not deprive them of that right. The form of action having been changed does not prevent us from now declaring its effect: Killed. Ege, supra; Leeds v. Lockwood, supra.

The learned judge was therefore right in ordering a nonsuit, and in refusing to take, it off.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Monongahela Valley Camp Meeting Association versus Robert Patterson. Hunter versus Same.
    1. A. brought an action of ejectment against B. and others, obtained judgment and issued a writ of habere facias possessionem. To this writ the sheriff made return that as to all the defendants named in the writ he had delivered possession, but that he found in occupancy and possession of the premises a person who did not claim or hold possession under the defendants, but claimed to hold and “ I believe did and does hold, by a paramount title, for and as the Monongahela Valley Camp Meeting Association, and who refused to deliver up possession of said premises.” To A.’s petition for an order upon the sheriff to execute said writ, the sheriff formally answered, stating that he believed the title of the company was good as against A., and that the court had no power to make an order that he execute the writ, but omitting to mention whether he had asked indemnity of the plaintiff, or if it was refused. The association was not, in fact, in existence when B.'and his associates got possession of the land, but was formed thereafter by B., his associates and others: Held, that the order was properly granted; that it was utterly impossible for A. to sue the association at the time his suit was brought, for it had not been formed, and as it was not in existence it could not be possessed of the land.
    2. Undecided whether the sheriff and the association were entitled to a writ of error.
    November 10th 1880.
    Before Siiarswood, C. J., Mercur. Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 100.
    At No. 319, October Term 1876, a judgment was entered in favor of Robert Patterson, the defendant in error, plaintiff below, against John O’Neill, William M. Crump, S. S. Crump, John Adams, Rev. T. M. Royle, John O’Neill, Jr., and R. B. Adams, Esq., the same being an action of ejéctment brought by Patterson against the defendants, alleging that the title to a certain grove was in him and not in the defendants. No other person was a party to that action excepting the individuals named. The Monongahela Valley Camp Meeting Association of the M. E. Church, the present plaintiff'in error, was in no manner or form a party to that action, nor was any judgment ever entered against it.
    At No. 319, October Term 1876, an habere facias was issued upon the above recited judgment. It was a writ by Robert Patterson in favor of Robert Patterson against John-O’Neill, C. M. Westlake, W. K. Hobson, John O’Neill, William M. Crump, S. S. Crump, John Adams, Rev. T. M. Boyle, John O’Neill, Jr., and R. B. Adams, Esq. To this writ the Monongahela Valley Camp Meeting .Association of the M. E. Church was not a party nor was it named therein.
    On February 21st 1880, Robert Patterson, the defendant in error, presented a petition setting forth the action at No. 319, October Term 1876, and the judgment entered thereon and the hab. fa. that was issued thereon; and further alleged that “ the sheriff refuses to execute the writ of habere facias and deliver possession of the land to your petitioner,”'and that the sheriff assigned as ayeason therefor “ that a person was in possession of the land,' holding the same under and for the Monongahela Valley Camp Meeting Association of the M. E. Church, and that said association was not a party to the writ,” and praying the court to order and command the sheriff to execute the writ of habere facias by ejecting the said, the Monongahela Valley Camp Meeting Association, from the possession of said property.
    Of this application notice was given to the Monongahela Valley Camp Meeting Association, and to the rule to show cause granted on said petition of Patterson, both the sheriff and the Monongahela Valley Camp Meeting Association filed answers. The sheriff replied, inter alia, “ as against all the defendants, possession was delivered, but I found in the occupancy and possession of said premises a person who did not hold or claim possession under the defendants, or any of them, but claimed to hold by a paramount title for and as the servant of the Monongahela Valley Camp Meeting Association, and who refused to deliver up possession of said property. My writ, as aforesaid, was not against the Monongahela Valley Camp Meeting Association, and I declined until further investigation to remove by force the said parties in possession. Such further investigation and inquiry I have made, and I am advised by my counsel and verily believe that the Monongahela Valley Camp Meeting Association hold possession of said property by a title paramount and superior to that of the defendants, or either of them, and as I am advised and as I believe, said title is good and effectual as against said Robert Patterson, and that said association is legally entitled-to the possession of said property as against said Robert Patterson and all other persons.”
    The return of the sheriff on the said writ of habere facias is as follows:—
    . “ I do hereby certify and return that as against all the defendants named in the within writ possession was delivered; but I found in the occupancy and possession of said premises a person who did not hold and claim possession under the defendants, or any of them, but claimed to hold, and, I believe, did, and does hold, by a paramount title for and as the Monongahela Camp Meeting Association, and who refused to deliver up possession of said premises.”
    The Monongahela Camp Meeting Association replied, inter alia, that they had had possession of the said property since July 1876, and that that possession was delivered to them by Robert Patterson, the plaintiff in the writ; that they took possession under and in pursuance of a proposition to them made by Patterson, and that they had remained in possession ever since; and that since the action of ejectment at No. 319, October Term 1876, aforesaid, was brought, that Patterson had accepted from them rent for the property ; that they had a good and valid title to the property, and the right to possession of the same derived directly from Robert Patterson, and that as against all persons, and as against said'plaintiff, that they were entitled to the possession and use of the said property; that they were in no way a party to or concluded or bound by the judgment entered at No. 319, October Term 1876, nor were they a party to or bound by the hab. fa. issued on the said judgment; and that they did not hold title to the property described in the said writ of habere facias possessionem, or any part thereof, under the defendants in the said writ or any of them.
    The cause was heard on the petition of Robert Patterson, as aforesaid, and the answers of the sheriff and the camp meeting association, and on April 3d 1880, the court, Kirkpatrick, A. L. J., ordered that the sheriff execute the writ of habere facias and deliver possession of the land and the premises therein described to Robert Patterson. .
    The association and Hunter, the sheriff, took this writ and assigned for error the granting of the above order.

      D. T. Watson and W. C. Moreland, for plaintiff in error.
    The habere facias is the writ given by the law to enforce its judgment. On such a writ a stranger, not claiming under the defendants in the writ, cannot be dispossessed: Herman on Executions, pp. 532 and 533.
    Mr. Justice Trunkey, when on the Common Pleas bench of Venango county, in the case of Raw v. Stevenson, 24 Pitts. Leg. Jour. 145, exhaustively reviewed the authorities, and with great precision stated the rule to be deducible from all of them as follows : “ It is the duty of the sheriff under a writ of hab. fa. to remove the defendant or any one claiming under him, but if any other person, one- not claiming under the defendant, but by and under a different title, be in possession, the officer cannot remove him from the premises under such writ. No tenant who is in possession of the premises anterior to the commencement of the action, can be dispossessed upon a judgment and writ of possession to which he is not a party. If a tenant whose possession is distinct from that for which the action is brought be turned out, he may have a writ of restitution.” See also Clark v. Parkinson, 10 Allen (Mass.) 133, where the same rule is laid down.
    Assuming that the judgment of the court was entirely consistent with the facts of the cause as presented, it raises upon this record for determination the simple question whether these parties, the real lessees, who were not a party to the record in the court below, nor in any manner concluded by the judgment have not the right to resist the sheriff under his writ of habere facias, for if it is true that there was an outstanding title and right of possession in a third party, whose right to that possession never was passed upon nor involved, and who never had his day in court, can it be contended that a judgment obtained against a stranger would so far conclude this' party that under a writ of habere facias the party thus holding this paramount title would be compelled to surrender it, and seek his remedy either by a petition for restitution or an action of ejectment.
    A writ of error was the proper remedy for review: Cadmus v. Jackson, 2 P. F. Smith 295; Finney v. Crawford, 2 Watts 294; Harger v. Commissioners, 2 Jones 251; Hanover et. al. v. Craighead, 5 Barr 470; Pontius v. Nesbit et al., 4 Wright 309 ; O’Hara v. Penna. Railroad Co., 2 Grant’s Cases 241.

      William L. Chalfant and Miller & McBride, for defendant in error.
    The record in the action of ejectment and the answer of the association show clearly that the ejectment was brought against individuals proposing to form a corporation, w.ho set up the title’ that was to inure to their corporation, and were defeated. The organization of the corporation is claimed now to have been completed before the termination of the ejectment suit, while its members were in court defending upon its title, and, although it now claims to hold by title paramount, it gives no excuse for not intervening to protect its rights, nor does it allege a single fact to sustarn its. title that was not set up on the trial. It is said, in the opinion of this court, refusing re-argument, that “ the defendants were" members of the association; were active in its business ; some, if not all, were on its committees.”
    No writ of error lies at the instance of this association. The court cannot, on a writ of error, judge of the regularity of an execution issued in the court below, where the question involves matters of fact which do not appear on the record: Richter v. Rittenhouse, 3 Rawle 273; Servis v. Amor, 3 Barr 460.
    We contend, therefore, 1. That the writ of error taken here will not lie; and 2. That the petition and answer, so far as they set forth facts, show clearly that the title to the possession of the land in dispute, as claimed by the association, is the same as that adjudicated upon in the action of ejectment, and that the parties for the purposes of this case are the same.
    The sheriff has also sued out a writ of error, and we have in this case the novel spectacle of an executive officer assuming to decide for himself legal questions, and refusing upon such decision to obey the mandate of the court. His motive does not concern 'this argument, and we may concede the right of a sheriff in a proper case to be protected in the execution of process; but we have a right to say that he did not, at any time, demand indemnity, well knowing that if demanded it would have been promptly furnished.
   Mr. Justice Trunkey

delivered the opinion of the court, November 22d 1880.

The sheriff returned the habere facias possessionem as follows: “ I do hereby certify and return that, as against all the defendants named in the within writ, possession was delivered, but I found in occupancy and possession of said premises a person who did not claim or hold possession under the defendants or any of them, but claimed to hold, and I believe did and does hold, by a paramount title, for and as the Monongahela Yalley Camp Meeting Association, and who refused to deliver up possession of said premises.” To the plaintiff’s petition for an order upon the sheriff to execute said writ, the sheriff formally answered, stating among other things that after investigation he believes the title of said company is good as against Patterson,.that the court has no power to make an order that he execute the writ, and omitting to mention whether he asked indemnity of the plaintiff or if it was refused. He was not persuaded that the company was in possession anteriorto the commencement of the action, at least he does not say so. But it was his right to have a decision of the court before turning out the intruder, and the form of his proceeding to obtain it is immaterial. “ When there is any doubt as to how or by what claim of right a person intrudes upon land, the sheriff cannot be compelled without the direction of the court to remove such person, and in all such cases of doubt the officer should, before removing the party, require that the plaintiff first apply to the court, on notice to such person, for an order directing the sheriff to remove himCrocker on Sheriffs, sect. 575; Herman on Ex., sect. 351.

The company answered, claiming that it was incorporated in October 1876, that possession was delivered to it in July 1876, under and in pursuance of a written proposition to lease which it accepted, and that it has held possession ever since; it also claims a good and valid title and right of possession directly derived from Patterson. Its claims are nearly identical with the grounds of defence set forth in the defendants’ abstracts of title and which they advanced at the trial. When the suit was commenced there was no such artificial person as this association — it was contemplated. Natural persons had possession, were served with process, made defence, and verdict and judgment were rendered against them. Not one disclaimed possession. They were the persons W'ho negotiated with and obtained possession from the plaintiff, and if they did not hand it over to the corporation it is an intruder. Whatever title and possession the association has it got through the agency of the defendants, and it is clear that when the suit was brought, as well as when the possession was delivered and taken, the corporation was not in existence. When the association says it took possession in July, it means, of course, that the defendants took possession, who subsequently, perhaps with others, became incorporated. That it did not come into possession by collusion with defendants, doubtless, is literally true, and the presumption is strong that it took from the defendants with actual knowledge of the pending ejectment.

The learned counsel for the sheriff and association cite Clark v. Parkinson, 10 Allen 133, as ruling this case against the plaintiff. There the party claiming paramount title was in possession anterior to the suit, and the plaintiff did not make him a defendant; it was held that neither his title nor right of possession had been adjudicated in the case the plaintiff had chosen to present. Referenee is also made to Raw v. Stevenson, 24 Pitts. L. J. 145, a case where Raw, by due legal proceedings, while the ejectment was pending, without connivance'or consent of the defendant, obtained possession, and claimed by title hostile to both the plaintiffs and defendants in the ejectment. It was said that had he got into possession, by any trick or abuse of legal process, he ought to be treated as an intruder. Moreover, the conduct of the plaintiff in procuring the judgment, which was the foundation of his sheriff’s deed, so clouded his title that it was evidently considered of no validity as against Raw.

Here, it was utterly impossible for the plaintiff to sue the party, now claiming title, at the date he commenced suit. This party was not added, and the writ served on it by the sheriff, which was his statutory duty had it been in possession, for a person not in being cannot be possessed of land. The claimant was brought forth after the action was begun, and acquired its possession from the defendants. We are of opinion that the learned judge of the Common Pleas was clearly right in his conclusion.

Under the circumstances, we deemed it better to consider the alleged error; but whether these parties were entitled to writs of error is not decided.

The order, dated April 3d 1880, is affirmed.


text:
    Mellon’s Appeal.
    1. A release of a property mortgaged from the lien of a judgment cannot be set up against one who in good faith purchased the judgment without notice, actual or constructive, to put him on inquiry as to the release.
    2. A judgment was revived by an amicable scire facias. No note of the revival was made on the record of the original judgment. The amicable scire facias was, however, accompanied by a confession of judgment, which judgment confessed was at once entered upon the judgment-docket: Held, that this was constructive notice to all lien-creditors of the existence of such judgment and cured the omission to note the amicable scire facias in its proper place.
    October 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Oourt- of Allegheny county; Of October and November Term 1878, No. 168.
    Appeal of Thomas Mellon from the decree of the court in the distribution of the proceeds of the sale of the real es-tate of Conrad Schad, deceased.
    The material facts will be found stated in the opinion of this court.

      T. Mellon, for appellant.

      J. 1. Mitchell, for appellee
   Mr. Justice Paxson

delivered the opinion of the court, November 3d 1879.

This was a question of priority of lien, and arose upon the distribution of the proceeds of the sale of the real estate of Conrad Schad, deceased. On the 26th of February 1868 William Hageman obtained a judgment against the said Schad, No. 280, April Term 1868. On the 12th of September of the same year Hageman assigned the judgment to J. D. Ilarlet, who, on the 11th of June 1870, assigned it to J. I. Mitchell, who,-on February 6th 1874, assigned it to D. Lutz, the appellee.

On July 7th 1868, Schad executed and delivered to Thomas Mellon, the appellant, a mortgage of $7000 upon a portion of the real estate bound by the judgment, and with the mortgage delivered to said Mellon a release of the property mortgaged from the lien of said judgment, duly executed by Hageman, the judgment-creditor. This release was not recorded, nor was it noted on the judgment docket until May 29th 1877.

On April 6th 1873, Mellon obtained a judgment against Schad, No. 389, September term 1873, for the sum of $2116.60. This judgment was for interest due on the mortgage and as collateral to said mortgage. There was no new consideration.

On December 21st 1871, the Hageman judgment was revived by the parties thereto by an amicable scire facias, No. 178, of January term 1872. No note or memorandum of this amicable revival was made on the record of the original judgment until January 21st 1878, when the omission was discovered and the usual reference made. We learn, however, from the record that the amicable scire facias was accompanied by a confession of judgment, which judgment so confessed was entered on the judgment docket the day the agreement to revive was filed.

The assignee of the Hageman judgment does not appear to have had any notice or knowledge of the release held by Mr. Mellon. On the other hand Mellon had not actual notice of the amicable scire facias.

The court below held that the release was inoperative as to the assignee of the judgment in the absence of notice; that the judgment was properly revived both as to the defendant therein and Mellon, the holder of the mortgage, and awarded the money to Lutz, the assignee of said judgment. From this decree the said Thomas Mellon entered this appeal.

The court below was right in holding that the release could not be set up against Lutz, who in good faith had purchased the judgment without notice actual or constructive, and who was therefore an innocent holder. He bought upon the faith of the record with nothing to put him upon inquiry as to the release. Mellon did not procure his release to be noted on the record of the judgment until nearly nine years after he had received it. Had he entered it at once as he might and ought to have done, Lutz would not have been misled. By withholding it from the record he put in the power of Hageman to practice a deception. It was said by Gibson, C. J., in Fisher v. Knox, 1 Harris 622, that “ any one -who leaves it in the power of another to deceive may be said to collude with him beforehand.” In that case this court postponed the assignee of the moiety of a judgment who had not caused his interest to be noted on the docket, in favor of a subsequent assignee without notice of the prior assignment, and who had procured his assignment to be marked on the record. In Wetherill’s Appeal. 3 Grant 281, it was held that laches in the holder of a secret equity will postpone him. Says Mr. Justice Strong : “ It may be said that all the authorities agree that the presence of laches in the holder of a secret equity will postpone him ; even an equity in the obligor may be lost by neglect to assert its existence, and a fortiori will a third person lose his right by any laches which causes an injury to a purchaser of a chose in action.”

Was the judgment properly revived as against Mellon ?

The Act of 29th March 1827, Purd. Dig. 822,9 Sm. 319, expressly requires that “when any judgment shall be revived by scire facias or otherwise, or when any execution shall issue in any case, a note thereof shall be made in the proper judgment docket in the place where the other entries in the case may have been made.” This act does not appear to have been strictly observed in some portions of the state for some years after its passage. This laxity led to the passage of the Act of 3d April 1843, Pamph. L. 127, Purd. Dig. 823, which was evidently intended to validate judgments prior to the date of said last-recited act, which had not been entered in the judgment docket as required by the prior Act of 1827: Mehaffy’s Appeal, 7 W. & S. 200. But the Act of 1843 contains this express proviso: “ That nothing contained in this act shall hereafter release prothonotaries or other proper officers of the courts of this Commonwealth from keeping a judgment or lien docket according to the requirements and provisions of the Act of 29th of March 1827 aforesaid.” It thus appears that the keeping of a judgment docket in which all judgments shall be entered, and all sci. fa.’s to revive shall be noted, is a plain and imperative requirement of the Act of 1827. This docket was intended as record notice of existing liens of judgments and awards of arbitrators: Crutcher v. Commonwealth, 6 Whart. 340; Mann’s Appeal, 1 Barr 24; Ridgway’s Appeal, 3 Harris 177. It is the only docket to be examined with this view : Stephens’s Executors’ Appeal, 2 Wright 9 ; Bear v. Patterson, 3 W. & S. 233 ; Wood v. Reynolds, 7 Id. 406. Yet it is not the only notice. It has been frequently held that actual notibe of liens independently of the docket'is sufficient : Speer v. Evans, 11 Wright 141; The York Bank’s Appeal, 12 Casey 458. Just he-re it is important to observe the distinction between the purpose of the Act of 29th March 1827, relating to the judgment docket, and the Act of 4th April 1798, 3 Sm. 331; Purd. Dig. 819, pl. 3, relating to the lien of judgments. The former act, as before remarked, was intended to supply record notice of. liens by judgment. The Act of 1798 had another and entirely different object. It was an act of limitation. Prior to its passage a judgment was a perpetual lien upon real estate. The mischief was that conveyances of real property were seriously impeded, titles were rendered insecure, and the sheriffs of The different counties of the state were' sometimes unable for a long time to distribute the proceeds of the sales of real estate by reason of the existence of old judgments upon the records, many of which were actually paid, but left unsatisfied upon the docket, and the plaintiffs either dead or moved out of the jurisdiction. It was to remedy these evils that the Act of 1798 was passed. .It was held as long ago as Bank of North America v. Fitzsimmons, 3 Binney 342, that it was an act of limitation, and that “a judgment not revived by scire facias within five years from its date, ceases to be a lien upon real estate as well as against subsequent judgment creditors as against subsequent purchasers.” The result is that when a judgment is not revived according to law it drops out of the list of liens, and the next encumbrance in point of time takes its place: Bank v. Crevor, 2 Rawle 22.4; Fryhoffer v. Busby, 17 S. & R. 241.

The failure to note the amicable scire facias on the docket entry of the original judgment would be fatal as against Mellon unless he had notice actual or constructive of the revival. I do not think it enough that he had knowledge of the original judgment. Such knowledge is to be presumed as to all subsequent lien-creditors.. The record furnishes them with constructive notice. Having such notice, it may be said in one sense that the junior lien-creditor is not injured by the failure of notice of revival. But this is the evil which the Act of 1798 was intended to remedy. Said act comes in not by way of notice but by way of limitation, and says that the lien shall cease unless the judgment is revived within five years, while the Act of 1827 requires it to he revived in such a way that the holders of subsequent liens shall have record notice of the revival. Both the lien and its continuance are creatures of statute. The revival being a statutory proceeding, and out of the course of the common law, the statute must be substantially complied with to preserve the lien as to purchasers and lien-creditors.

The object of the Act of 1827 in requiring the scire facias to be noted on the record of the original.judgment was to give convenient notice to purchasers and lien-creditors of the revival. By an examination of the record of the original judgment a person interested could see at a glance whether a scire facias had been issued. If no such note appears upon the docket and five years have elapsed since the judgment was entered, a subsequent purchaser or lien-creditor has the right to presume the lien has expired, and is not hound to look further. But as the very purpose is to furnish such notice, it must be apparent that if he has it from any other source he is not injured by the failure to note the revival.

That Mr. Mellon had actual notice is not pretended. But the record shows he had that w'hich was its precise equivalent. The judgment confessed upon the scire facias was entered at once upon the judgment docket. This was constructive notice to Mellon and all other lien-creditors of the existence of such judgment, and cures the omission to properly note the amicable scire facias in its proper place.

The decree is affirmed and the appeal dismissed, at the cost of the appellant.


author: Mr. Justice Sterrett

text:
    Saeger’s Appeal.
    1. In January 1872, S. sold and conveyed to F. eighty acres of land, and as security for the'pavment of the purchase-money, §2750, took from F. and his wife their joint mortgage of the land so conveyed, together with a small tract called the “ Homestead,” which belonged to Mrs. F. in her own right. The mortgage payable in six instalments, with interest, contained this clause: “ Provided that as soon as the said first party shall pay to the second party the sum of §1000, of the purchase-money aforesaid, then the last-mentioned and described tract (Homestead) shall be released from said mortgage.” After making payments aggregating §983.75, and tendering the further sum of §61, the mortgagor demanded a release of the Homestead tract under the terms of the agreement. S. contended that the payments should be first applied to the accrued interest on the whole mortgage debt, and then on account of the principal, and claiming that the mortgagees were in default, issued a scire facias to collect the residue of the §2750, by sale of both tracts of land. F. then filed a bill in equity, praying for a decree requiring the mortgagee to release the Homestead tract: Held, that the court had jurisdiction: Held, further, that the release was properly ordered to be granted.
    2. The court imposed the costs upon S.: Held, that this was error.
    November 24th 1880.
    Before Mercur, Gordon, Paxson, Trunkby, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Appeal from the Court of Common Pleas of Orawford county : Of October and November Term 1880, No. 310. In Equity
    Bill in equity filed by Ezra Brookhouser, administrator of Joseph Fox, deceased, and Rebecca Fox, his wife, against Charles Saeger, executor of Isaac Saeger, deceased, to restrain the collection of certain moneys on a mortgage and to compel the release of the lien of said mortgage on certain land.
    The material facts are stated in the opinion of this court.

      F. L. Blackmarr, for appellant.
    The plaintiff’s bill should have been dismissed for want of jurisdiction. The defendant claims that the payments made by plaintiffs from time to time should be first applied upon the interest of the whole face of the mortgage, and the balance, if any, applied to the principal until it is reduced in the aggregate to $1000. Without any stipulation for a waiver of the statutory delay of issuing scire facias this mortgage was entitled to collect all of the money secured by the bond and mortgage, for the last instalment thereof was due January 1st 1877, and the scire facias did not issue until April 4th 1879, and plaintiff's bill was not filed until September 19th 1879. We think the court exceeded their discretion under all the facts of this case, in ordering the appellant to pay all the costs from the filing of his answer, viz., $127.46, and ordering the appellees to pay only $8, which are all the costs prior to filing of the answer.

      J. N. McCloskey and William R. Bole, for appellees.
    It is contended by the plaintiffs that they should be required to pay just $1000 and no more, to be entitled to a release of the mortgage upon the twenty-three acres more or less, or “ Homestead,” under .their agreement and terms in the mortgage, and that they have already paid or tendered more than that amount, and therefore are entitled to such release. In equity the right of redemption is considered as inseparably incident to a mortgage and can no more be restrained than the power of a tenant in fee to a lien generally : Powell on Mortgages 19; 2 Story’s Eq., § 1019. The complainant seeks the specific performance of the covenant contained in the mortgage. The jurisdiction of a court of equity, because of this covenant, is as complete in this case as in any,- where the specific performance - of a contract may be enforced. Besides this the mortgagee, after the payment of the purchase-money due on the mortgage, held the title ás trustee for the mortgagors; and our courts have jurisdiction in equity by virtue of the provisions in our statutes, which confer equitable jurisdiction over trust moneys and property. The fact that similar cases are remedied through common-law forms, is no bar to equitable jurisdiction : Westley Church v. Moore, 10 Barr 173 ; Gard v. Patton, Id. 282. The writ of scire facias is a remedy given the mortgagee to collect his debt, and does not take aw'ay the right of the mortgagors to enforce their equity of redemption by an appeal to a court of equity, or their right to have the contract specifically performed. The mortgagors in this case were old and illiterate.
   Mr. Justice Sterrett

delivered the opinion of the court, January 3d 1881.

In January 1872, appellant sold and conveyed to Joseph Eox eighty acres of land, and as security for the payment of $2750, purchase-money thereof, took from the grantee and his wife their joint mortgage of the land so conveyed, together with a small tract called the “Homestead” containing about twenty-three acres, sixteen acres and twenty-four perches of which belonged to Mrs. Eox in her own right. She was therefore surety for her husband, at least to the extent that her separate property was thus pledged for his debt.

The mortgage, payable in six instalments with interest, contained the following clause: “Provided that as soon as the said first party shall pay to the second party the sum of $1000 of the purchase-money aforesaid then the last mentioned and described tract of twenty-three acres shall be released from this mortgage.” After making several payments, amounting in the aggregate to $983.75, and tendering the further sum of $61, the mortgagors demanded a release of the “Homestead” tract, claiming they were entitled thereto by the terms of the agreement. The appellant on the other hand contended that the payments should be first applied to the accrued interest on the whole mortgage debt, and then on account of the principal; and, claiming that the mortgagors were in default, he issued a scire facias for the purpose of collecting the residue of the $2750 by sale of both pieces of land. The bill was then filed, setting forth the fa.cts, as claimed by the appellees, and praying for • a mandatory decree requiring the mortgagee to release the homestead lot.

Construing the agreement, in the light of the evidence before him, the master decided that the homestead lot was pledged only for the payment of $1000 of the purchase-money, and the other tract was bound for the residue ; that the payments, as made by the mortgagors, were first applicable to the $1000, and accrued interest thereof, in relief of the homestead lot, and as soon as that sum, principal and interest, was paid, the appellees were, entitled to the release. The court adopted the conclusion of the master and made a decree that upon the payment of $120.38, which was found to be the balance of the $1000 and interest, the appellant should execute the release contemplated by the proviso above quoted.

On behalf of appellant, it is claimed, among other things, that the appellees had a full and adequate remedy at law, and hence their bill should have been dismissed for want of jurisdiction. We do not think so. While the appellees may not have been without remedy in an action at law, it cannot be said that they had any remedy as complete and adequate as that afforded by a bill in equity. It is not pretended that the ease is within the statute relating to the satisfaction of mortgages. As already observed Mrs. Fox was surety for her husband to the extent of her separate estate pledged for his debt; and, if it was agreed that, the homestead of the mortgagors should be included in the mortgage as special security for the first $1000 of the purchase-money, with the distinct agreement that as soon as that sum with its interest was paid, the special security, in which, alone Mrs. Fox was directly interested, should be released, they were clearly entitled to have the agreement to release specifically executed as soon as the condition precedent was performed. They were not bound to wait and take the risk of making special defence on the trial of the scire facias, and in the meantime suffer the homestead to remain apparently covered by the mortgage. The court was right, under the circumstances, in asserting its jurisdiction of the case as presented in the bill, and in adopting the conclusions of the master so far as they were necessary to support the decree as to the main subject; but, we think there was error in imposing any part of the costs on the appellant. While it is true he demanded the payment of more money than he was entitled to before he would release the homestead lot, the appellees had not paid or tendered a sum sufficient to entitle them to the release. In strictness the court might have dismissed the bill when it was ascertained that the full amount had not been paid or tendered before it was filed ; but this would have resulted in requiring them to pay the costs, and perhaps, after paying or tendering the full amount required, to commence de novo by filing a new bill, &c. In equity proceedings, when such expense and delay can be avoided, without prejudice to the rights of either party, there is no good reason why it should not be done. If the appellees are required to pay the costs and also $120.88, residue of the $1000, found to be yet due the appellant, with interest thereon from date of the decree, equal and exact justice, as nearly as may be, will be done.

The decree of the Court of Common Pleas, except so much thereof as relates to costs, is affirmed; and, in lieu of said excepted portion of said decree, it is now adjudged and decreed that the appellees pay the costs, including the costs of this appeal, and for the purpose of enforcing the decree, as thus modified, the record is now remitted.


text:
    Brown & Sons, to use, versus Black et al.
    1. A. and B., who were partners, entered into an agreement in writing to settle their partnership affairs. Two judgment notes had been signed by the firm -and delivered to C. & Co. The agreement stipulated that B. should pay one of said judgments, or procure a release therefor, and it was further agreed that said “ A. shall have the right to pay or cause to be paid, in the event of said B. failing to do so, as herein provided, both of C. & Co.’s judgments ; and in that event said A. shall have the right * * * to collect from said B. the amount of the debt, interest and costs of one of said judgments.” B. failed to pay either of said judgments and A. was compelled to pay both of them. He then issued an attachment execution upon one of the judgments, in the name of the legal plaintiff, to his own use, for the purpose of collecting the amount thereof from B. The court set aside the attachment on the ground that the payment of the judgment by A. was a satisfaction of the debt, and that he .had no power to keep the judgment on foot and issue an execution against his partner and co-defendant: Held, that this was error.
    2. Although originally partners, yet by the agreement A. became practically security for B. as to one of the judgments, and having paid the money had the right, not only by the terms of said agreement, but also by virtue of his relation as surety, to use the judgment to compel payment by B.
    October 19th 1877.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Erie county: Of Oc- • tober and November Term 1877, No. 77.

      The facts of the ease will be found stated in the opinion of this court, which opinion was delivered by Paxson, J., sur rule to show cause why the order of November 22d 1879, affirming the judgment in the case of D. Brown & Sons, to the use of John Landsrath, against W. 0. Black and John Landsrath, should not be rescinded and the court below reversed;

      Davenport & Griffith and Bmson Brainard, for plaintiffs in error.

      Woodruff & Marshall, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, February 2d 1880.

This case was argued at the October Term 1877. We were asked to postpone its decision until the determination of Landsrath’s Appeal in the equity case of Black v. Landsrath. The latter case was heard and decided at the last term in the Western District. The decree did not touch the case in hand, but in terms left it undisturbed. After that decision was rendered, we affirmed the judgment in the present case by agreement of counsel. It now appears that this order was made under a misapprehension on the part of the plaintiff’s counsel, it having been intended to reverse the judgment. This rule was taken to set aside the judgment so entered by mistake. Under all the circumstances, we think it our duty to relieve the counsel from the consequences of such an error. We will therefore treat the case as if no such order had been made, and proceed to dispose of it upon its merits.

There having been no opinion filed by the court below, we are not furnished with the reasons which induced the learned judge to dissolve and set aside the attachment. Looking at the reasons assigned upon the motion to dissolve, we are led to the conclusion that the action of the court was based mainly upon two grounds : 1. That no order of subrogation had been made and 2. That “ the payment of the judgment of D. Brown & Sons against Landsrath & Black by- Landsrath, one of the joint defendants, was in law a satisfaction of the debt, and Landsrath has no power to keep the judgment on foot and issue an execution on it against his partner and co-defendant.”

The principle above stated is Gorreet enough as an abstract proposition, but is not applicable to the facts of this case. The said W. O. Black and John Landsrath had been engaged in business as partners. In the month of January 1863, they closed their business and the firm was dissolved. At that time they were indebted to J. Gr. Brown and H. W. Brown in the sum of $7000. Two judgment-notes of $3500 each were signed by Black and Landsrath and delivered to the Browns. On the 17th of March 1868, they (W. 0. Black and John Landsrath) entered into an agreement in writing by which they undertook to settle and adjust their partnership affairs. Among other things stipulated for in said agreement was that Black should either pay one of the aforesaid judgments of $3500 in favor of Browns, or should procure a release therefrom in favor of Landsrath. It was further agreed that “ said Landsrath shall have the right to'pay or cause to be paid, in the event of said Black’s failing to do so, as herein provided; both of D. Brown & Sons’s judgments; and in that event said Landsrath shall have the right to require’ said Black to comply with the remaining stipulations on his part herein contained, and shall have the right to collect from said W. 0. Black the amount of' the debt, interest and costs of one of said judgments.” Black failed to pay either of said judgments; Landsrath was compelled to pay both of them. Thereupon he issued an attachment in execution upon one of the .judgments, in the name of the legal plaintiff, to his use, for the purpose of collecting the amount thereof from Black. It was this attachment the court below set aside.

We are of opinion that Landsrath had a clear right to use the. judgment for such purpose. Such right was expressly given by the agreement referred to. That there was no formal subrogation is not material. It is the right to subrogation that is essential; the actual subrogation is a mere form, or, as was tersely said by Chief Justice Gibson in Fleming v. Beaver, 2 Rawle, at page 132 : “ The right of substitution is everything, and actual substitution nothing.” And see Wright v. Grover, 1 Norris 81, which is directly in point. Although originally partners, yet by the agreement between them, Landsrath became practically security for Black as to one of the judgments, and having paid the money, had the right, not only by the terms of said agreement, but also by virtue of his relation as surety, to use the judgment to compel payment by Black. It was error in the court below to set aside the attachment,

It will thus be seen that the judgment of affirmance was not only an error on the part of counsel, but -was not justified upon the merits. The case having been fully argued, we can correct the error upon this rule.

The rule granted November 29th 1879 to show cause why the judgment entered in this case should not be rescinded, is made absolute; the judgment of the court below is reversed; the attachment is ordered to be reinstated, and a procedendo awarded.


text:
    Barr, to use of Berst, versus King and Miller, defendants, and the State Mutual Aid Association of Ohio, garnishee.
    A foreign corporation, which is qualified to do business in this state by having complied with the statutory requisites, may be made a garnishee in an execution attachment.
    November 25th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Mereer county: Of October and November Term 1880, No. 162.
    Attachment execution by M. B,. Barr, to the use of Jacob Berst, against Wilson King and W. H. Miller, defendants, and the State Mutual Aid Association, garnishee.
    Charles Miller, in his lifetime, resided in Erie, Pa. He had two sons, James S. and W. H. Miller. Charles Miller became a member of the State Mutual Aid Association of Columbus Ohio. His certificate of membership provided that at his death his said two sons should receive from said association the sum of $3000. Charles Miller died at Erie July 14th 1879, while a member of said association, leaving surviving him said two sons.
    M. It. Barr, to the use of Jacob Berst, obtained a judgment against Wilson King, and the son, W. II. Miller, who survived Charles Miller, in the Court of Common Pleas of Erie county, at September term 1879, for the sum of $953.47. Said judgment was entered on the 19th of September 1879, on a note dated the 10th of January 1877. An exemplification of said judgment and record was taken and entered in the Court of Common Pleas of Mercer county on the 26th of November 1879, at October term 1879 of said court. And on the same day this execution attachment was issued, and on the 29th of November 1879, said attachment was served on W. B. Henry and Henry Hoomer, agents of the said State Mutual Aid Association, the said association. being made the garnishee, to attach the money due from said association to said W. II. Miller, on the said certificate of membership of the said Charles Miller, deceased.
    On motion the Court of Common Pleas of Mercer county, Mc-Dermitt, P. J., set aside the service of the said writ of attachment, on the ground that foreign corporations cannot be reached by service on agents, the court filing the following opinion :
    “ This is a motion to set aside the service of the execution attachment, upon the ground, inter' alia, that the garnishee being a foreign corporation is not liable to an attachment as the garnishee between third parties. That said association is a foreign corporation is shown not only by the record itself, but by the certificate of the secretary of the .Commonwealth, made out by him under the provisions of the Act of 22d of April 1874, and which certificate was offered in evidence by the plaintiff himself. The first question is, can a foreign corporation be made a garnishee by service upon such agents as the uncontradicted testimony, or rather answers of Henry and Hoomer show themselves to be ? An attachment in execution is a proceeding unknown to the common law. When it lies, who are liable to it, and the mode and manner of its service must be determined by the statutes calling it into existence and regulating 'the practice under it. In a suit against a corporation the process must at common law be served on its head or chief officers. Admitting that said association could at common law be made liable in this proceeding, the service, not having been made on its head or chief officer, is not legal. We say they are not its head or chief officers, because Henry and Hoomer, the agents upon whom the service was had, in their answers say they are agents for the purpose of procuring insurance only. Surely such an agency does not make them the head or chief officer of the corporation.
    “ The Act of 21st March 1849, Purd. Dig. 289, Pamph. L. 30, merely regulates the commencement of actions against foreign corporations upon their own contracts relating to their own business, and by their own creditors. By no necessary implication can this act be held to relate to the service o.f process for the enforcement of contracts to which foreign corporations are strangers, and that this association is a stranger to the contract between the plaintiff and defendants is clear. The Act of 22d April 1874 merely prohibits foreign corporations from transacting business in this state until they have established an office and appointed an agent in the Commonwealth. It no more than any former act has relation to contracts other than those between such corporations and their own creditors. The court .was cited to and can find no act by which a foreign corporation can be made a garnishee, and as it cannot be so made at common law, at least by a service on such agents as Henry and Hoomer, the service in this case must he set aside.”
    Barr took this writ and alleged that the court erred in setting aside the service of the attachment.

      George C. Burgwin, W. H. Sheakley, Wilson Laird and J. W. Wetmore, for plaintiff in error.
    In the commencement of any suit or action against any foreign corporation,' process may be served on any officer, agent or engineer of such corporation: Act 21st March 1849, Purd. Dig. 287. Such service on an agent is sanctioned in the case of any insurance company or other corporation : Act April 8th 1851, Purd. Dig. 287. The Act of 1874 having provided for the appointment of an agent for the transaction of the business of the corporation, and this association having notified the Commonwealth of its compliance with the law, cannot nullify the effect of the law and its own action by the testimony of its agents. Proceedings upon an attachment execution are essentially in the nature of a suit at law as against the garnishee. He may appear, plead and have a trial by jury and writ of error as in other actions at law: Jones v. N. Y. & E. Railroad Co., 1 Grant 457.

      George A. Allen. L. R. Hosenzweig and A. F. Henlein, for defendant in error.
    What remedy could the plaintiff have against the association ? Could they compel the association to make an assessment? Would any of the members be obliged to pay what they had already paid? If the plaintiff could have no remedy against the association, what is the object and purpose of the judgment? It cannot be for the purpose of execution, as the court would-be powerless to enforce it. The Statutes of 1849 and 1874, cited by plaintiff in error, apply only to the business of the corporation. It was not the intention of the legislature to permit creditors of individuals to harass and annoy foreign corporations by making them parties to suits in which they had no interest. The object and purpose of said acts were to make foreign corporations answerable to action against them within this Commonwealth.
   Mr. Justice Trunkey

delivered the opinion of the court, January 3d 1881.

No foreign corporation shall do any business in this Commonwealth without an office and agent therein for the transaction of its business, nor until it shall have filed in the office of the secretary of the Commonwealth a statement showing the location of its office or offices and the name or names of its agent or agents : Act April 22d 1874, Pamph. L. 108. A corporation may be sued in any county where it has an agency: Act 1851, Pamph. L. 354. In the commencement of any suit or action against a foreign corporation process may be served on its agent, and such service shall be good and valid in law to all intents and purposes : Act 1849, Pamph. L. 216. As shown by the statement, the office of the State Mutual Aid Association of Columbus, Ohio, is located at Greenville in Mercer county, and Henry and Hoomer are the duly authorized agents to transact its business in this state. The sole inquiry is, 'whether a foreign corporation, which is qualified to do business in this state by having complied with the statutory requisites, may be made a garnishee in an execution attachment.

This writ is in the nature of an' execution against the defendant in the judgment on which it issues; but it is essentially in the nature of a suit at law against the garnishee, who may appear, plead, have a trial by jury, and writ of error, as in other actions at law: Fithian v. New York & Erie Railroad Co., 7 Casey 114. In that case it was decided that a foreign corporation that had accepted the privilege of extending -its works through this state, upon the condition, “ that in all suits or actions which may he brought against said company, the service of process upon any manager, toll-gatherer, or other officer of the company shall be as good and available in law as if made on the president thereof,” and that said company shall keep an officer, resident in the county of Susquehanna, could be made a garnishee in an attachment execution. There the defendant resided in New York, and had obtained judgment against the corporation in that state. It was said that the true intent of the ninth section of the Act of 1841, Pamph. L. 29, was to bring the corporation within the jurisdiction of this state to answer in all suits or actions at law which might be brought against it; and that an attachment execution is within the meaning of the act. Now.by general statutes all foreign corporations, as a condition on which they may transact business in this state, must establish an office and have an agent, a chief purpose of which is, that process may be served, and such corporations be compelled to answer in all suits or actions brought against them. These statutes are so comprehensive as to embrace all actions to which such corporations are liable, and have like effect on them as the Act of 1841 had on the railroad company to which it specially applied. The language of that act relating to suits, service of process and keeping an agent, is substantially the same as in the general statutes of later date, and if that embraced an attachment execution so do these. The one made service on the manager or other officer, resident in the county, as available as if made on the president, the others declare that service upon the agent “ shall be good and valid in law to all intents and purposes.”

Natural and artificial persons, citizens of other states, who are doing business here, ought to stand on an equal footing with each other and with the citizens of this state. A natural person who is a citizen of another state, on coming within the jurisdiction of our courts is liable to all actions as if resident in this state; and legislation has' done much to place foreign corporations on equality with domestic as 'respects the rights to sue and the liability to be sued. No reason exists why a foreign corporation engaged in business here should be exempt from attachment process. It is a proceeding against the garnishee personally for the value of the thing attached when the thing itself is not produced. If a debt be attached it compels payment to the creditor of him to whom the garnishee is indebted. The object is to appropriate the debtor’s assets to payment of his debts, and this object ought to be favored. It may be accomplished whenever the court has jurisdiction over the person who has actual possession of the property, or who owes the debt, as well as when the property maybe taken into possession by the officers of the law: Childs & Co. v. Digby, 12 Harris 25.

We are of opinion that a foreign corporation can be made a garnishee. No other question is presented, and none which may arise hereafter can be anticipated.

The order of May 15th 1880, setting aside the service of the execution attachment upon the State Mutual Aid Association of Columbus, Ohio, as the garnishee of defendants, is reversed, and procedendo awarded.