text:
    JACOB FRANTZ, for the use of JOHN GARBERICH, against PHILIP BROWN.
    One about to talce an assignment of a bond, is bound to enquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so,, he stands exactly in the place of the obligee.
    It is competent therefore, for an obligor to set up as--a- defence to the payment of his bond in the hands of an assignee, a parol agreement between him and the obligee, made after the bond was executed, but before it was assigned,' that in a certain event which might and did happen after the assignment, the bond was not to be paid.
    In a case where chancery would enjoin an obligee in a bond or his assigneefrom proceeding at law, while the obligor' remains a loser or in jeopardy as a surety, evidence is admissable to enable the jury to produce the same result by means of a conditional- verdict.
    Appeal, -by the defendant, from the Circuit Court of Lebanon county.
    An action of debt on bond was brought' by Jacob Frantz for theuse of John Garberich, against Philip Brown. The plaintiff gave in evidence the bond of Philip Brown to Jacob Frantz, for eight hundred dollars, upon which suit was brought, dated tbe 29 th March,. 1819, payable on the first of May, 1823, with the equitable assignment thereon, to John Garberich, dated fifteenth April, 1820. The defendant then read a notice of the special matter, upon which he intended to rely as a defence, which was in substance this.-
    That on the 10th of October, 1818, an article of agreement was entered into, between.Frantz and Brown, by which Frantz sold a tract of land to Brown, .for two thousand two hundred pounds; seven hundred pounds whereof was to be paid upon the execution of the contract, and three hundred pounds a year- thereafter, till the whole should be paid: that bonds were given by Brown to Frantz, for the said annual payments, upon one of which-this suit is brought. That about eight days after the bonds were- executed and delivered to
      Frantz; he bought a tract of land and mills from Adam, Brechibill, for ten thousand six hundred and sixty-six dollars and sixty-seven cents; four thousand two hundred and sixty-six dollars, and sixty-seven cents of which he paid in hand, and agreed to give sixteen bonds, with security, for four hundred dollars each, payable annually,- for the residue. That on the 6th April, 1-819, Frantz called on Brown to become his security, in the sixteen bonds to Brechibill,- for four hundred dollars each, which Brown at first refused to do; but upon its being agreed by Frantz, that if Brown would sign, as his security,- the bonds to Brechibill, the bonds which he, Brown, had given to Frantz on the 29th March, 1819, for the land purchased, should be his security: that if Brown was at any time obliged to pay any of the bonds given by them to Brechibill, that so much should be deducted out of his bonds to Frantz, and that Brown should not be called upon to pay his bonds to Frantz, until Franlz had paid his bonds to Brechibill; on these conditions Brown signed the bonds, as security of Frantz to Brechibill. That Frantz became unable to pay his bonds to Brechibill, and that Brown was obliged to pay them, and had’paid the first eight bonds in full, and the ninth in part.- That Frantz became insolvent on or before the 10th April, 1821, and that Brown will be obliged to pay all the bonds to Brechibill; as they become due.
    The defendant háyifig given in evidence, the agreement between Frantz and Brechtbitt, as mentioned in the notice of special matter, and the deed in pursuance thereof, dated 6th April, 1819; oflered in evidence three bonds of the same date, Jacob Franlz and Philip Brown, to Adam Brechibill, for four hundred dollars each, payable on the 1st of May, 1825, 1826 and 1827, together with the parol agreement between Franlz and Brown, as set out in the notice of special matter;
    This was objected to by the plaintiff, who in support of his objection showed, that this suit was brought on the 10th November, 1824. The evidence was rejected by the court.
    The defendant then offered in evidence, the prior bonds, Jacob Frantz and Philip Brown, to Adam Brechibill, four in number; the first payable on the first day of May, 1820, and the last on the first day of May, 1823. Objected to by the plaintiff, inasmuch as these bonds had been credited in a former suit, Jacob Frantz, for the use of Philip Stine, v. Philip Brown; and offered a credit for the amount found by the jury, in said suit, as over paid by the defendant, to wit: two hundred and two dollars and thirty-eight cents — the defendant then agreed that the former trial shall settle the amount over paid on the three first bonds.
    The defendant then offered in evidence the bond of Jacob Frantz and Philip Brown, to Adam Brechibill, payable on the first day of May, 1824, with proof, that it was paid on the day it fell due, or before: objected to by the plaintiff, on the ground, that notice of the assignment of tbe bond, upon which the present suit is brought, was brought home to Philip Brown, before the bond offered in evidence became due, or was paid; and gave in evidence a suit brought by the plaintiff, against the defendant, in Dauphin county, to recover the amount of the present bond, the 26th day of January, 1824, process served and bail given, and discontinued on the 9th day of November, 1824, the day before this suit was brought. Objections overruled, and evidence admitted; excepted to by the plaintiff

      John Harrison was then called by the defendant. I Was one of Jacob Frantz’s assignees; assignee deed, dated the 10th day of April, 1821; sold his goods, January, 1822; I have always understood he was poor; we were not able to pay his debts; I don’t know what his circumstances were in 1824.

      Jacob Frantz was called by the defendant: I did not pay the bond of 1824, which Brown and I gave to Adam Brechtbill: I was not able to pay it then, nor am I now.
    A verdict was rendered for the plaintiff, for three hundred and fifty-one dollars and fifty-eight cents.
    The plaintiff prayed the court to grant a new trial for three reasons, the first of which is alone material.
    Because the court erred in receiving in evidence the bond of Jacob Frantz, and Philip Brown, to Adam Brechtbill, dated 6th April, 1819, for four hundred dollars, payable 1st May, 1824, and in deciding that the same was a legal defalcation against John Garbesich, for whose use this suit was brought.
    The defendant prayed the court to grant a new trial, and assigned four reasons therefor, all of which amounted to but one.
    Because the court rejected the evidence of the payment of the bonds of Frantz and Brown, to Brechtbill, payable 1st May, 1825, 1826,1827, 1828, and part of the oneof'1829, together with parol evidence of the agreement between Frantz and Brown, at the time they were executed.
    The court overruled both the motion of the plaintiff, and of the defendant: and entered judgment upon the verdict, from' which decision both parties appealed.
    In this court the cause was aTgued by

      Montgomery and Morris, for plaintiff

      Weidman and Elder, for defendant.
    For the plaintiff, it was contended, that the court was right in rejecting the evidence of the parol agreement between Frantz and Brown: a contract cannot rest partly in writing and partly in parol, such evidence was rejected in Davis v. Barr, 9 Serg.. Rawle, 141. It is against the legal effect of the instrument; and the assignee not having reason to suspect its existence, is not bound to enquire for it from the obligor. An agreement not to enter up a bond, was held not to bind, even tbe original parties. Undoubtedly the assignor could- not have released after the assignment, in consideration of this previous liability; and what can not be done directly, cannot be done indirectly. Andrews v. Beeker, 1 Johns. Cas. 411. Little-field v. Story, 3 Johns:Rep. 425. Wardell v.Eden, 2 Johns. Cas. 121. Raymond v. Squire, 11 Johns. Rep. 47. Bates v. JV. F. Ins. Co. 3 Johns. Cas. 238.. Want of notice to the assignee is material; for after that,, the interest of the assignor is'divested, even as regards the obligor, and all relation between the original parties ceases. Nothing but defalcation or an equity arising out of the concoction of the debt can be urged against an assignee. Davis v. Barr, 9 Serg. Sf Rawle, 14]. Turlin v. Bonson, 1 Peer Williams, 495. Cook V. Ambrose, Addis. Rep. 323. We are purchasers for a valuable consideration, without notice of this germ of incipient equity.
    There was error in admitting the evidence of set off of the amount of the bond of 1824, and in charging the jury that they were bound to allow it.. Jenkins v.. Brewster, 14 Mass. 291. Jones v. Witter, 13 Mass. 305.
    The counsel for defendant were requested by the court, to confine their argument to the point on which the defendant appealed.
    The evidence of the agreement between Frantz and Brown, should have been received for the purpose of raising an equitable defence, independent of defalcation, 1 Madd. Chan. 154, an assignee takes subject to every equity, Wheeler v. Hughes, 1 Dal. 23. Run-dell v. Ettwein,-2 Yeates 23. Mann v. Dung an, 11 Serg. Sf Rawle, 75. Every defence must be let in; Solomon v. Kimmel, 5 Bin. 234. Bury V. Hartman, 4 Serg. Sf Rawle, 175. Qochenaurv. Cooper, 8 Serg. Sf Rawle, 203. Morrison v. Moreland, 15 Serg. Rawle, 61. Roasset v. The Ins. Co. of North Amer. 1 Bin. 433. The defalcation act expressly authorises the giving of a bargain in evidence, to show the amount actually and equitably due. . Here there is certainly an available equity between the original parties, which is sanctioned by all the authorities, as being also available against the assignee
   The opinion of the court was delivered by

Gibson, C. J.

Evidence of the agreement between Frantz and Brown,' at the time of executing their bonds to Brechthill, was excluded against the bent of the judge’s inclination, on the authority of Davis v. Barr, 9 Serg. & Rawle, 137, by which he thought his judgment was controlled. It is there stated, that as regards transactions between the original parties, the assignee is to be affected only by defalcation or want of consideration: a construction which is found to be too narrow for the spirit of the act on which the question turns. ^ In that case the agreement did not touch the question of liability; and as tbe assignee is restrained by the terms of the act, np further than from recovering more than was due at the timé of the assignment, it was properly held on principles of general equity, that being a purchaser for a valuable consideration, he is protected, by want of notice, from all acts of the original parties that do not affect either the existence or the quantum of the debt. But it was supposed, that all acts that can affect the existence, or ■the quantum of the debt, are necessarily referable to failure of consideration, or. set off; the fallacy of which is shown by the present •case. The defendant offered to prove that he became surety for ' Frantz to Brechtbill, on the faith of an assurance, that whatever he might be compelled to pay in consequence, should be credited on his own bonds to Frantz. Here there was something more than a •contingent liability at the time of the assignment: so that- it is obvious the question turns not on set off, but an equity distinct from' it. Set off, itself, was originally nothing more than an equitable defence, which the legislature has thought fit, in plain and simple ■cases, to subject to the jurisdiction of the courts of common law, reserving to chancery, its original jurisdiction of cross demands, which do not fall within the statute. That such a statute should have been thought necessary here, where the jurisdiction of the courts is compounded of law and equity, is attributable to the unsettled state of the practice at the time. As their equitable jurisdiction is now settled, and universally understood, the courts would be competent to do complete justice, without the statute, as is shown by their having frequently gone beyond it; an instance of ■which is found in Childerston v. Hammon, 9 Serg. & Rawle, 68, where the defendants were permitted to defalcate a debt due to one. of them, although the terms of the act are applicable only to cases, where a balance may be found in favour of the party pleading the set off, and viewing/such a plea as across action, it certainly ought not to be maintained, so far as to produce a balance, by two for a debt due but to one. Set off then being out of the question, was there an equity arising from something in additioh to a contingent liability, at the time of the assignment! There was an express appropriation of the money to become due on the defendant’s bonds to indemnify him from loss, as surety for Frantz, which might undoubtedly be set up against Frantz, or an assignee having .notice of the fact. But the assignee is bound to take notice of every thing, as well a secret trust as want of consideration or set off, which may affect the existence of the debt between the original parties, unless the obligor, after inquiry made, has withheld the requisite information. What would have been the answer to the proper inquiry, here 1 Certainly not, that the bonds were payable at all events, but that the obligee held them subject to an agreement to indemnify the obligor for whatever he should be'compelled to pay for the obligee. In Davis v. Barr, the agreement being collateral to the existence of the debt, and there being nothing in the enquiry which the assignee was bound to make, to lead the obligor to the subject, the latter might with good faith, have admitted the debt, and yet been silent on the subject of the agreement; so that an enquiry about the only thing which the assignée is bound by the terms of the act of assembly to suspect, not being necessarily productive of information, in regard to the fact with which it was attempted to affect him, it was held that for neglecting to make the usual enquiry, he was not to be visited with notice of circumstances, to which it would not have led. Perhaps there will-be rarely, if ever, a case to which the principle of that decision will be applicable. In the case at bar, the assignee was bound to enquire into every circumstance that might be set up against payment of any part of the debt, and having failed to do so, he stands exactly in the place of the obligee. As therefore chancery would enjoin Frantz, or his assignee, from proceeding at law, while the defendant remains a loser, or in jeopardy ,as a surety, the evidence is admissible to enable a jury to produce the same result, by means pf a conditional verdict.

Judgment reversed, and a new trial awarded.

Rogers J. and Ross J, took no part in the decision,' not having heard the argument.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    LEONARD IMMEL, surviving trustee of FREDERICK STOEVER, an insolvent debtor, against JOHN STOEVER, CHRISTIAN KREIDER and PHILIP STINE, administrators of TOBIAS STOEVER, deceased.
    The trustee oi an insolvent debtor, cannot sustain an action, in right of the insolvent, without having first given bond.
    A bond executed with security, and filed upon the trial of the cause, is not sufficient
    Appeal from the Circuit Court of Lebanon county, held by Justice Huston. '

    It was an action of assumpsit for money had and received. Issues were joined upon the pleas of wow assumpsit and payment.
    It appeared upon the trial of the cause, that Leonard Immel, the surviving trustee of Frederick Stoever, an insolvent .debtor, had not given bond for the faithful discharge of the duties of trustee, before he brought this suit against the administrators of Tobias Stoever, deceased. This being made an objection to the plaintiff’s recovery, Leonard Immel then executed a bond, with sufficient security, in the penalty of twenty thousand dollars, and offered to file the same. The defendant still contended, that the plaint iff could not recover, unless he had given bond before suit brought. and his Honour, who tried the cause, being of this opinion, the plaintiff suffered a nonsuit, which he afterwards moved the court to take off, which being refused, he entered an appeal to this court.

      Weidman and Fisher, for appellant.
    The application and discharge of Frederick Stoever, as an insolvent debtor, were under the acts of 1730 and 1798, the latter of which was engrafted in the former; when he was discharged on the 6th March, 1809, no security was ordered by the court to be given. The plaintiff has a legal right to recover, without having given security, for the estate passes to the trustee for the benefit of the creditors, immediately upon the execution of the assignment; and if so, the right of action is inseparably incident. Willis v. Row, 3 Yeates, 520. Cooper v. Henderson, 6 Bin. 189. Kennedy v. Ferris, 5 Serg. Sf Rawle, 394. Gray v. Hill, 10 Serg. Sf Rawle, 436. The bond is given for the benefit of the creditors, and they may dispense with it. The Farmers Bank of Reading v. Boyer, 16 Serg. fy Rawle, 48. The debtor can not make the objection, 5 Cranch, 281. 6 Cranch, 329. Wickersham v. JVicholson, 14 Serg. Sy Rawle, 118. The Circuit Court, might from necessity, have taken the security, whereby justice would have been done between the parties, and the creditors of Stoever, relieved from all risk.

      Elder and Hopkins, for the appellees, whom the' court declined to hear.
   The opinion of the court was delivered , by ,

Smith, J.

At the trial of this cause, in the Circuit Court of Lebanon county, held in March last, by his Honour 3ustice Huston, the plaintiff was nonsuited, principally on the ground, that hé had not entered into the bond, required by the insolvent' law of 1798, before he instituted the action; which nonsuit, the plaintiff after-wards moved the court to set aside. That motion being refused, he entered the present appeal. The act of the 4th óf April, 1798, (to be found in the 4 vol. Penn. Laws, Dall. ed. p. 269,) for the relief of insolvent debtors, formed of itself, a complete system. It provided for the discharge of all insolvent debtors, in term time, and of such as were arrested in execution, in vacation; and directed that every trustee appointed under it, should, before he acted as such, give bond to the commonwealth, with security, in such penalty, as the court should order, &c. It expired on the 1st of May, 1801, but .it was revived by an act, passed the 26th of March, 1808, for one year, and from thence to the end of the next session of the general assembly.

Frederick Stoever, on the 31st of January, 1809, petitioned the court of Common Pleas of Dauphin county, to extend the benefits of this law to him, and on the 6th of March ensuing, was according-3y discharged by that court, after assigning to the plaintiffs, all his estate, in- trust, for the benefit of his creditors. But his trustees did not enter into the bond required by the third section.' This suit was instituted to November term, 1823. The question to be decided is, can the action be maintained 1 It is manifest, from the proceedings of the court ©f Common Pleas, that they were'all founded upon the act of 1798, revived by the act of 1808, and not upon the act of 1730. The legislature then has therein prescribed, that the trustees shall, before they act as such, give bond with security, &c. without complying with that requisition, the plaintiff commenced the present action. If is to no purpose that the insolvent’s estate vested in him, as he contends, by the assignment. . The law expressly restrains him from doing any act in relation to the trust, until he executes the bond directed to be given; nor can the bond; tendered to the Circuit Court, be regarded as a compliance with the third section of the act of 1798, for the Circuit Court had no authority to determine the amount ©f the penalty, or approve of the surety in the bond; and even if it possessed such authority, and had received and approved the bond, which was tendered, the plaintiff would not have been aided; since every suit must be good at its inception, nor can the wantof.a cause of action be supplied by a subsequently accruing right. The act of assembly in question ■empowers the court of Common Pleas to fix the sum for which the bond should be given, and to approve the security. The plaintiff must look to this law for his guide in the proceedings which he may •hereafter adopt, in the execution of his trust. It is only necessary •for us at present to say, that we consider the decision of the Cireuit Court, from which he has appealed, as perfectly correct, and that the judgment must be affirmed.

Judgment affirmed.


author: Rogers, J.

text:
    JOSEPH GABLE, and others, heirs of CASPAR GABLE, against WILLIAM HAIN.
    When a judgment in ejectment was entered by agreement of the parties, to be released on the. payment of a certain sum, on or before a certain day, time is of the essence of the contract: and if the money be not paid ,on or before the day, the judgment becomes absolute and indefeasible.The receipt of the money, by the attorney of ,the plaintiff, after the day stipulated for payment, without the knowledge of his client, will not prevent the plaintiff from pursuing his judgment to execution, and obtaining the possession of the land.
    Writ of error to the Common Pleas of Berks county..
    The facts of this case were these: Caspar Gable, the father of the plaintiffs, sold a tract of land to William Bain, the defendant by articles of agreement: a part of the purchase money Was to be paid at a future day, when Gable was'to convey to Hain the land clear of incumbrances. Gable died before the deed was made, or purchase money tendered. After his death, his administrators proved the contract, and an order was made by the Common Pleas, granting them permission to make a deed to Hain.- After the purchase money became due, the deed was tendered to Hain, and the money demanded, which was not paid. The present plaintiffs, who are the heirs at law of Caspar Gable, deceased, then brought this ejectment to compel the payment of the balance of the purchase money.
    The cause being ordered- on, and the jury sworn, the following agreement was entered into between the parties/
    “ It is hereby agreed that judgment be entered in the above suit in favour of the plaintiff above named, for the land and tenements in the writ and declaration mentioned, to be released and vacated on the payment of the sum of two hundred and twelve' dollars and forty cents, on or before the first day of March next, together with costs of suit, otherwise said judgment to stand in full force and virtue. Witness our hands and seal, this 16th day of January, A. D. 1829.”
    On the 27th of April,-1829, the two hundred and' twelve dollars' and forty cents, with interest from the 16th of January, 1829, and all the costs were paid to- Samuel Baird, Esq, one of the attorneys of the plaintiffs, in the absence, and without the knowledge of his clients.
    Previously to the 27th. April, 1829; and after the 1st March, 1829, Gable’s heirs considered the judgment as absolute, and had advertised the land for sale: they did sell the land on the 2d May, 1829, to JohnSohl. After this, Leavenworth, who Was also the attorney with Baird, for the- plaintiffs, issued a Habere facias possessionem and fieri facias for costs; upon which the sheriff delivered the possession of the premises to the plaintiffs. On the 8th June, 1829, a rule was granted by the court, to show cause why the Habere facias possessionem and fi. fa. for costs, should not be set aside; which was subsequently made absolute, and restitution was awarded to the defendant. Whereupon thiá writ of error was sued out, and the opinion of the court setting aside the Habere facias possessionem and fieri facias for costs, and awarding restitution to the defendant, was assigned as error. Í

      Baird, for plaintiff in error.
    Two questions are involved! 1st. The construction of the agreement as to the materiality of time. 2d. The validity off the acts of counsel, under the circumstances of this case.
    The intention of the parties to the agreement seems manifest.. Upon the trial of the cause, the defendant had it in his power to defeat the recovery of the plaintiff, by the payment of the balance of purchase money due, interest and costs, but which he was either unable or unwilling to do; and the plaintiffs are about to realize their rights by a verdict and judgment, when a compromise as ¿o time, takes place, by which it is agreed between the parties, that if the money is not paid on or before the 1st of March, the, judgment then entered should stand in full force and virtue. There was nothing but time to compromise, and after 'it elapsed, the title of the plaintiff became absolute. Hollingsworth v. Fry, 4 Dal. 845. It was a trick upon the- counsel of the plaintiffs, practised after the defendant knew that the plaintiffs considered their title as revested.
    The plaintiffs title, then, having become absolute, their attorney, who was employed only to prosecute their suit to judgment, had no power to part with that title, without his clients express consent. Huston v. Mitchell, 14 Serg. & Rawle, 307. 7 Cranch, 452.

      Dechert, for defendant in error.
    Time, in equity, is not of the essence of a contract. Amer. Chan. Dig. 3 Bibb, 366, And the object of the action being to compebthe payment of the balance of the purchase- money, the áttorney was- ex officio authorized to receive it, whereby the terms of the contract were complied with.
   The opinion of the court was delivered by

Rogers, J.

We think it clear, that time was of the essence of the contract; for it would be an unreasonable construction of the agreement, that the defendant should have an indefinite period of time for the payment of the money. To avoid this uncertainty, seems to have been the object of the compromise. The parties themselves, have, fixed a reasonable time for payment of the purchase money, which it was the object of the suit to enforce. And this it would have been competent for the jury to do, and is an ordinary operation of a court of chancery, on a bill of foreclosure. In Hollingsworth v. Fry, 4 Dall. 345, a case not stronger than the present, the time of payment was made a substantial, and not a mere formal circumstance. It was there decided, that when time enters into the essence of a contract, it must be observed. In sales by private agreement, it is usual to fix a time for completing a contract, which at law is deemed of the essence of the contract. But in certain cases equity will carry the agreement into execution, notwithstanding the time appointed be elapsed. But this depends upon the peculiar circumstances of the case, and is never done, when it is contrary to the manifest intention of the contracting parties. When time is made material, it is as binding on a court of equity, as a court of law. If this be the correct construction of the agreement; on the first of March, 1820, Gable became re-vested with the absolute title to the land; and a title thus acquired, cannot be divested, except by some act or agreement, on some express authority from the principal. If the plaintiff had accepted the money after the stipulated time, it would have amounted to a waiver; not so with respect to its receipt by the attorney, whose power only extended to issuing a habere facias, to obtain the fruits of the judgment. Although the power of an attorney at law, is more extensive in Pennsylvania, than in England, yet he cannot, without express authority from his principal, convert his clients money into land, or vice versa, as was decided in Huston v. Mitchell, 14 Serg. & Rawle, 307. An attorney at law is authorised to do those things, which pertain to the conducting a suit, but has no power to make a compromise, by which land is to be taken, instead of money.

Opinion of the court reversed, and re-restitution awarded to the plaintiffs.


text:
    SAMUEL HEILNER, for the use of FREYTAG and KAMPMAN, against JACOB BAST, JOHN WANNER, and SAMUEL FEGELLY.
    In the case of an application for the benefit of the insolvent laws, the decree of the court, “ Proceedings quashed by order of the court,” is conclusive evidence, that the applicant did not comply with the terms of his bond ; and the cause of sucia order cannot be inquired into collaterally.
    It is the duty of the applicant to surrender himself to prison, if he fails to comply with all things required by law to entitle him to be discharged. Quere. Whether the court has power to recommit the applicant, except he had been guilty of fraud.
    After an insolvent bondisfoa-feited, the issuing of an Als. Ca. Sa. by the same plaintiff, upon which the insolvent gave another bond, and was subsequently discharged bylaw, is not a waiver of his right of action upon the first bond.
    Writ of error to the Common Pleas of Berks county.
    . This was an action of debt upon an insolvent bond, brought by Samuel Heihier, for the use of Freytag and Kampman, against Jacob Bast, John Wanner, and Samuel Fegelly.

    The bond, dated 1st July, 1825, was in the penalty of two thousand dollars, with the following condition annexed. “ Whereas the above bounden Jacob Bast, hath been arrested, and is now in arrest, at the suit of the said Samuel Heilner, for the use of Freytag and Kampman, for the sum of one thousand and three dollars and fifty-seven cents, besides costs; and the said Jacob Bast, having made application to the honourable Jacob Schneider, one of the judges of the court of Common Pleas of the county of Berks, to he released from such confinement, on his entering into bond with sufficient security, to comply with the provisions of the act of the general assembly of the commonwealth of Pennsylvania, passed the twenty-ninth day of January, A. D. 1820, entitled “A supplement to the act entitled, an act for the relief of insolvent debtors,” and the said Jacob Schneider having approved of the above named John Wanner, and Samuel Fegelly, security for the said Jacob Bast.

      “ Now the condition- of the above obligation is such : that if the said Jacob Bast, shall appear before the honourable the Judges of the court of Common Pleas fer the county of Berks-, at the next term of said court, to beholden on the first Monday of August, A. D. 1825, and then and-there remain, and abide the final order of the said court, to he made during the said term, and then and there surrender himself to prison,, in caáe (.on his appearance before the said court,) he shall not comply with all things required by Iáw,> to procure his discharge from confinement: then the above obligation to be void, otherwise to remain in full force and virtue.”
    After the plaintiif'had given in evidence this bond and rested: the defendants gave in evidence the capias ad satisfaciendum, at the suit of the said Samuel Heilner, for the use of Fveytag and Kampman,, v. Jacob Bast, upon which the defendant had been taken, and had given this bond, and the sheriff’s return thereon “ discharged on giving bond.” They then showed the petition of Jacob Bast, regularly presented at the next term, according to the condition of his. bond, the order of the court thereupon, appointing a day for hearing the petitioner and his creditors ; the notice to creditors published according to the order of the court, and exhibited the record of the court, showing that the said Jacob Bast, together with teir others, who were to appear at the' same time, had regularly appeared on the day, and at the time fixed, when the court, for reasons which did not appear'upon the record, made the following order, “the proceedings quashed by order of the court.” The defendants further gave evidence that afterwards, to wit, to January term, 1826, an alias capias, ad satisfaciendum, issued at the suit of the same plaintiffs against the same defendant, upon which the sheriff returned “ Tarde venit:” That a pluries capias, issued to the next term upon which the said Jacob Bast was taken, and gave another insolvent bond with John Wanner, as his security : that in discharge of this bond,. Jacob Bast appeared at the next- court, filed his petition, and was afterwards regularly discharged, under the insolvent laws,, on the 8th August, 1826.
    To all which evidence the plaintiffs demurred, and the defendants joined' in the demurrer.
    The court of Common Pleas gave judgment for the defendants-

      Smith, for plaintiffs in error.
    The questions presented are: Is the bond upon which the suit is brought, so formal, as that the plaintiffs may recover upon it; have its conditions been complied with; and if not; have the plaintiffs done any thing which amounts to a waiver of their right to recover.
    It has already been decided, that this bond is a substantial compliance with the act of assembly, and valid. The Farmers Bank of Reading, v. Boyer, 16 Serg. ¿f Rawle, 48. The petitioner did not comply with all things necessary to procure his discharge, for the proceedings were quashed by a decree of the court, and that decree is conclusive, and cannot be controverted. Sheets v. Hawk, et. al. 14 Serg. Rawle, 173. Lester v. Thompson, 1 Johns. 300. Leese v. Asper, M.S. S. decided at Chambgrsburg, 1828. It is no tnecessary that there should be an order of .the court for the delivery of the insolvent into prison; .act of 1820. Ingraham on insol. 14 — 15. The issuing of-the alias tandphiries ca. sa. operated for the benefit of the sureties, and they cannot complain of it, Ingraham on insol. 29. Sharp v. Speckenagle, 3 Serg. Sf Rawle, 463. At all events the second proceeding by the plaintiffs, was the obtaining of an additional security, and the circumstance of one of the same sureties going into the second bond, the plaintiffs had no controul over; nor does it alter the nature of the case.

      Dechert and Biddle, for defendants in error.
    This insolvent with all the others at that term, were refused their discharge, exclusively on the ground that their bonds were .defective ; and the present plaintiffs acquiesced in this opinion for two years before they brought suit. This is an ungracious claim. The insolvent has substantially complied with the .condition of .the bond, by appearing and submitting to the order of the court, who quashed all the proceedings, including the bond. If the court erred, that error should not now be visited upon the heads of innocent bail; particularly, as the insolvent was within a reasonable time thereafter discharged upon another petition, when arrested at the suit of the same plaintiffs. If the second bond was an additional security, it was discharged and satisfied by the final discharge of the insolvent, and any one of the securities being discharged, was a discharge of alL

      Baird in reply.
    This is a demurrer to evidence which is upon the record, and upon that alone this court must decide. Why the insolvent was not discharged, does not appear; nor could it appear, if it had been offered in evidence. The court had no power to quash the bond; to destroy a subsisting contract between the insolvent and his creditors. The only question then is, did the subsequently issuing the alias and pluries ca. sa. waive the first bond. There is no express waiver, and certainly it cannot be, so by construction; for ihe bail were not prejudiced by it. The pursuit of the original debtor by due process of law., can never exonerate his bail-
   The opinion of the court was delivered by

Rogers, J.

Jacob Bast, being in the actual custody of the sheriff .of Berks county, gave bond to the plaintiffs, at whose suit he was arrested, with the sureties required, and regularly approved of by a judge at his chamber, whereupon, in compliance with the act of the 28th March, 1820, he was discharged from arrest. The bond, which is in accordance with the act, 16 Serg. & Rawle, 48. Farmers Bank of Reading v. Boyer, has the following condition under written, that Jacob Bast will appear, &c. before the court of Common Pleas of Berks county, at the next term, &c. and then and there surrender himself to prison, in case, on his appearance, he shall not comply with all things required by law, to procure his discharge. Bast filed his petition in due form, and in the other preparatory steps complied with the directions of the act, and the court appointed a time for hearing him and his creditors, but for a reason, which is not stated, and if it were, would be immaterial, they refused to discharge him, and made the following entry, “ Proceedings quashed by order of the court.” From this entry, which is the only one on the record, it appears that Bast failed to comply with all things required by law to procure his discharge. Being the decree of a court of competent jurisdiction, it is immaterial what may have induced the decision, for if, as was ruled, in Sheets v. Hawk, et. al. 14 Serg. & Rawle, 173, the record of the discharge of an insolvent debtor is conclusive, as to the fact of having complied with all things required by law to entitle him to his discharge, then the refusal to discharge him must be equally conclusive, and not the subject of enquiry in a collateral suit. The record - conclusively shows that Bast was not discharged, and is evidence which cannot be controverted, that a substantial condition of the bond has not been complied with. The entry, “ Proceedings quashed by order of the court,” was tantamount to a decree that he had failed to comply with some of the essential requisitions of the statute, and whether the opinion of the court was right or wrong, is not open to enquiry. On the refusal of the court to discharge the petitioner, it was his duty to surrender himself to prison in discharge of his bail, and this without any order of the court for that purpose. It is the express condition of the bond, that he will surrender himself, in case he shall not comply with all things required by law to procure his discharge. Indeed, it may admit of doubt, whether the court would have power to recommit the prisoner, except he had been guilty of fraud. After the rejection of his application for the benefit of the act, he had one of two courses to pursue, either to surrender himself to prison, or forfeit his bond. This was a matter for himself to determine, but a case may be readily supposed where the petitioner would rather submit to the latter alternative. It has been contended that by the entry, “ Proceedings quashed, by order of the court,” the bond was vacated. We cannot suppose this to have been the intention of the court, as they would clearly have no such power ; and if they had expressly vacated the bond, such an order would have been a mere nullity, and treated as such in a suit to recover on it. The bond is directed by the act to be given to the plaintiff, at whose suit he is arrested, and for his benefit, so that I cannot believe that the court would have greater power than in the case of an ordinary bond, or any other instrument of writing whatever. The common law-does not recognize such summary proceedings, which would deprive the plaintiff of his remedy of trial by jury, and the opportunity of review in the supreme court. But it has been contended, that the alias ca. sa. and the subsequent discharge waives any right of action which he might otherwise have on the bond. This argument is rather specious than solid, for the alias is not in prejudice, but for the benefit of the bail. 'It is obviously to their advantage to pursue the principal, and compel him to assign his property for the benefit of his creditors.

Judgment reversed, and a venire de novo awarded.


author: Smith, J. Gibson, C. J.

text:
    Appeal by HENRY BETZ, JOSEPH HIESTER, LEWIS REES, and MICHAEL RAEFSNYDER, ISAAC M. YOUNG, and JACOB FRITZ.
    The issuing of a fieri facias within a year and a day, and a levy upon personal property, subject to former levies, or on personal property as per inventory annexed, or a return of nulla bona, does not beep alive the lien of a judgment beyond five years, from the return day of the term to which it is entered.
    Upon a transcript of the judgment of a justice of the peace, entered as a lien upon land, the five years within which a scire facias shall issue, to preserve the lien, must be computed from the first day of the term to which it is entered, and not from the actual date of the entry.
    This case came up by appeal from the decree of the court of Common Pleas of Berks county, distributing the proceeds of the sale by the sheriff, of the real estate of Samuel Krauser, Adam Krauser, and Daniel Krauser.

    The real estate was sold on the 2nd-November, 1829, and the sum of two thousand five hundred ar(d ninety-seven dollars and thirty-seven cents, being brought.into Sourt for distribution, the matter was referred, by consent,To three conf|nissioners, who made a report to the court, allowing the following judgments, the circumstances of which, gave rise to the points which are settled by this court.

      Jacob K. Boyer, for the use of h Henry■ Betz, I
    y. j John Krauser fy Samuel Era,user.)

    Of August term, 1821, No, 47, Judgment entered, 18th September, 182J. Real debt, $280 31,

      Fi. Fa. to August term, 1822., returned if Levied on personal property subject to prior executions.” Vend, expos, to January, 1823, returned “ unsold.” Fi.fa, post. vend, expos, to April term, 1827, returned “ Tarde venit.” April 14th, 1827, rule to show cause why the execution should not be set aside, and defendants let into a defence, May 18, 1827; rule made absolute, judgment to remain as security. Scire facias to August term, 1827, and. 1st June, 1829, judgment by report of arbitrators, for four hundred .and twenty-nine dollars and fourteen cents.

      Same plaintiffs. 1 v. > Same defendants. )

    Of April term, 1822, No. 89. Judgment entered, 8th February, 1822. Real debt $153,33.
    Alike proceedings were had upon this judgment as the first; the same returns were made thereto; the same rule entered; scire facias issued the same time, and on the 1st June, 1829, judgment by report of arbitrators, for two hundred and thirty-six dollars and eleven cents. To the allowance of these two judgments by the commissioners, the following exceptions were filed in the Common Pleas, by Jacob Hawk, a subsequent judgment creditor.
    1st. That the executions issued upon the said judgments were levied upon personal property, sufficient to satisfy the same.
    2nd. Because said judgments were not revived agreeably to the act of assembly, or the lien continued beyond five years, from the first return day of August term, 182J, under the then existing laws.
    The court of Common Pleas overruled the first exception, and sustained the second, from which Henry Betz, appealed.

      Mills and Reese, ) v. > John and Samuel Krauser. )
    Of January term, 1823, No. 10'. Transcript of a judgment from the docket of a justice, for $66 48.
    Entered, 11th January, 1823.

      Scire facias issued 7th January, 1828, to April term, 1828, upon which judgment was entered.
    There was another transcript of a judgment at the suit of the same plaintiffs, against the same defendants, entered at the same time, and depending upon the same circumstances. To the allowance of these two judgments, Jacob Hawk, also filed an exception,

      That the said judgments were not liens on the real estate sold, they not having been revived within five years, from the first return day of January term, 1823, agreeably to the act of assembly.
    The 6th January, was the return day of January term, 1823.
    This exception was sustained by the court of Common Pleas, and Lewis Rees, appealed.

      Joseph Hiester, Esq. \ v. > Adam, Samuel, and John Krauser. )

    Of November term, 1823, No. 112. Judgment entered, 10th Nov. 1823, for #400.

      FLfa. to January term, 1824, returned “levied on personal property, as per inventory annexed.” Vend, expos, to April term, 1824, returned “stayed by plaintiff” Als. vend, expos, to August term, 1824, returned*1 property sold to the amount of sixty-nine dollars and thirty-nine cents,” and this amount has been deducted from the interest and costs in the above case. Scire facias issued to January term, 1829. Exception was also filed by Jacob Hawk, to the allowance of this judgment.
    That the same had not been revived by scire facias within five years from the return day of the term to which it was' entered.
    This exception was also sustained by the court of Common Pleas, and Joseph Hiester, Esq. appealed.

      Michael Raefs?iyder, Isaac M.' ~ ' y Young, and Jacob Fritz, v. Samuel, John and Adam Krauser.J

    Of January term, 1824, No. 10. Judgment entered, 12 January, 1824, for #367 73.

      Fi.fa. to November term, 1824, returned “ nullabona.’’

      Jacob Hawk, \ v. > Samuel, John Sf Adam Krauser. )
    Of January term, 1824, No. 11, Judgment entered, 12th Janua-ry, 1824, for'#1560.

      Fi.fa. to' January term, 1824, levied on real estate, inquisition held, and the same condemned. Scire facias to January term, 1829, and judgment thereon.
    The commissioners reported that a balance of five hundred and ninety-one dollars and eighty-five cents, which remained after the payment of prior liens, should be divided rateably between these two judgments.
    To which Jacob Hawk excepted. That his judgment should be paid before any money should be appropriated to the judgment of Raefsnyder, Young and Fritz, which had lost its lien.
    This exception was sustained by the1 court of Common Pleas, and Raefsnyder, Young and Fritz, appealed.
    In this court, the appellants assigned as error, the opinion of the court in the several foregoing decrees.

      Baird, for appellants.
    There are two questions which arise out of this case. First, whether the issuing of a fi.fa. within a year after the entry of the judgment will keep alive its lien beyond the period of live years.
    And second. Whether upon a transcript of a judgment from the docket of a justice, the five years shall be computed from the first day of the term to which the judgment was entered, or from the actual date of its entry upon the docket
    The affirmance of the opinion of the court below, on the first point, will establish a doctrine differing from the received opinion of the bar, and uniform practice of all the courts in Pennsylvania, and which grew out of the judicial decisions of our own courts. The question first came before the court, in the case of Yomig v. Taylor, 2 Bin. 218, where it was ably argued, and received, the deliberate consideration of the court, and where it was held, that the issuing of a fi. fa. woulcLheep alive the lien of a judgment The next case is that of Lewis v. Smith, 2 Serg. f Rawle, 142, where the same doctrine is held, and predicated upon the construction, which practice had given to the .statute of Westminster the 2nd, and our own statute of the 4th April, 1798. In the case of Permock v. Hart, 8 Serg. ¿j- Rawle, 869, Young v. Taylor, is approved ; and in Pennoclc v. M’Kisson, 13 Serg. Sf Rawle, 144, the whole scope of the argument of Duncan Justice, recognizes the casesof Young v. Taylor, and Pennoclc v. Hart, as being sound law. The quere which is put in the case of Permock v. MKisson, is the quere of the reporters, and not authorized by the case itself: in the argument of that case, by Mr. Hepburn, who is a member of the bar of great experience and learning, and whose opinion in matters of practice will have weight, this position which we contend for is admitted. The case now at bar is a strong illustration of what we considered the settled law to be. In the act of the 26th March, 1827, Pam. laws, 129, we have the understanding of the legislature of what the practice was, for therein they provide that a scire facias shall issue, notwithstanding an execution had issued. If then, on this subject, the understanding and practice has been uniform and extensive, the evils of a different construction would be innumerable; this result the court will not produce, unless the evils of the present system are correspondingly great.
    When the act of 1798 was passed, the legislature had in view the practice of entering judgments upon warrants of attorney, and did not contemplate the case of transcripts, which at the passage of that law, there was no authority to enter on the county docket. ,But the 20th section of the act of 20th March, 1810, Purd. Dig, 454, which authorizes the entry of a transcript, provides that from the time of such entry, it shall bind the real estate of the defendant

      H. W.-Smith, for the appellee.-
    Prior to' the act of 4th April, 1798, judgments weré'a lien on real estate for an indefinite period ; by that act il ceases to be a lien, unless revived-by scire facias, within five years-from the return day of the term- to which it is entered. This act is as clear and comprehensive as it is positive in its terms: it was evidently intended for the benefit of purchasers, and subsequent- lien creditors.- The scire facias, post annum et diem, is given-by the statute of Westminster 2nd, and is intended for the benefit of the defendant in the judgment, that he may have an opportunity of showing that the debts paid, since the rendition of the judgment; so that there is no analogy between the two acts — the decisions, that have taken place under the one, cannot be applied to the other.
    The point now before the court, did not arise in the case of Young v. Taylor, there, there was no levy on personal property, the levy was on the two lots against which the lien was sought to be enforced, but further proceedings were directed to bring the matter before the court.- So far as this point was noticed, was only by a dictum of Judge Yeates, which was not called for, and which, as is said by senator Plait, in 9 Johns.- Rep. 415; and Huston, J. in 17 Serg. ¿f Rawle,- 292; and Gibson, C. J. in 7 Serg. <§• Rawle, 76, is always uncertain authority for what the law is.- There is a dictum of Judge Duncan, in 9 Serg. Sf Rawle, 311, that the mortgagee has the right to the actual possession of the land, one year after the last day of payment; but when the point came directly before the court, in 12 Serg. <f Rawle, 24Ó, it was decided that the mortgagee was entitled to recover before all the payments were due. But since' the case of Young v. Taylor j this court decided that so far as respects third persons, a levy on personal property discharges the lien of the judgment to the value of the property levied. Hunt v. Breading, 12 Serg. Rawle, 37. Dean v. Patton, 13 Serg. Sg Rawle, 341. Duncan v. Harris, 17 Serg. Rawle, 436. United States v. Stewart, M. S, case, Pittsburg, September, 1828. In Lewis v. Smith, the levy was on personal property, there was no question of lien as to land. If an execution be issued within a year and a day, an alias may issue at any time afterwards, without a scire facias, to obtain satisfaction of the debt, but not to continue the lien of the judgment: the existence of the debt and its lien are not inseparable ; the lien may be waived, and the debt still continue. The Bank of Pennsylvania v. Winger, 1 Rawle, 295.
    The case of Pennock v. Hart, has been much shaken in its authority, even by the present Chief Justice, who delivered that opinion of the court, for he has said that he is less confident of the soundness of that decision, than when it was pronounced, and in the Commonwealth v. Canard, 1 Rawle, 253, Justice Smith, savs, 4' indeed very few lawyers foresaw, or expected the decision of Pennock v. Hart.” It is restricted in its application, in Black v.. Hobson, 11 Serg. Sf Rawle, 94; and in Bombay v. Boyer, 14 Serg. &• Rawle, 253. In the Commonwealth v. M’Kisson, the Hen is confined to the particular lands levied on ; and there the court seemed reluctant to go even that far. Chahoon v. Hollenback, 16 Serg. Sf Rawle, 425, is the last case on the subject, and where Huston, J. reviews all the prior cases, and decides against the lien now asked for.
    The object of an execution is satisfaction of the debt, not security-for it; and whenever an execution creates a lien, it is on the pro-perty specifically levied, which is necessary to render the process effectual, until satisfaction is obtained. A levy on a particular tract of land, is notice that the creditor has resorted to it for payment, and a lien is the consequence until it is obtained; but a levy on personal property, or a return of nulla bona, can give no such notice : the former may induce third persons to believe that the judgment creditor has resorted to the personal property, and received satisfaction; and the latter is but notice, that no satisfaction was obtained, which sufficiently appears by the unsatisfied judgment on the docket. Mills and Rees’s judgments, although transcripts from the docket of a justice are entered for the purpose of lien on the -real estate, and are necessarily liable to all the legal consequences incident to the lien of a judgment under the act of 4th April, 1798.
   The opinion of the court was delivered by

Smith, J.

(His Honour stated fully the facts of the case.) The questions, which are to be decided here are. 1 Whether the lien of a judgment, is continued beyond five years, from the first return day of the term of which it is entered without a scirefacias to revive the same, by a fieri facias issued within a year and a day, and returned, levied on personal property, subject to prior executions, or, levied on personal property, as per inventory annexed, or returned, “nulla bona;” and 2ndly. Whether the transcript of a judgment of a justice of the peace, filed in the court of Common Pleas, continues the lien five years from the day on which it was actually entered, or five years from the first return day of the term of which it is entered, according to the provisions of the act of the 4th of April, 1798. With regard to this Jast question, we. find it impossible to draw a distinction between a judgment entered by confession, or on verdict, and a judgment entered from a transcript of a justice. It was long ago decided, that judgments obtained before justices of the peace, when filed in the prothonotary’s office, are on the same footing with judgments in court. Scott v. Ramsey, 1 Bin. 221. The words of the act of 1798, section 2, are, that “ no judgment hereafter entered in any court of record within this commonwealth, shall continue a lien on the real estate of the person against whom such judgment may be entered, during a longer term than five years from the first return day of the term of which such judgment may be so entered, unless the person who may obtain such judgment, or his legal representatives, or other persons interested, shall, within the said term of five years, sue out a writ of scire facias, to revive the same.” We have no doubt that the case of a transcript, is embraced both by the language and spirit of this provision, and we are unanimously of opinion, that the court below was correct in sustaining the exception to the allow anee of Rees and Mills’ judgments, as existing liens, five years from the first return day of the January term, 1823, having expired, when the scire facias was issued upon them respectively, though only by a single day. The other question does not admit of so easy a solution, nor are the members of this court unanimous respecting it. I may, however, state that four of us, concur in the opinion, that where the fierifacias is returned “nulla bond,” the lien is not thereby continued on the land; and that a majority of the court consider that the lien is not continued by a fieri fxcias, returned levied on personal property, as per inventory annexed.

The act of 1798, limiting the time during which a judgment shall be a lien on real estate, &c. is imperative in its injunction, that no-judgment shall continue a lien, unless a writ of scire facias be sued out within the time therein prescribed, to revive the same. It is true, that this excepting clause, has been extended by construction to the case of e,fieri facias levied on lands, and also, to the case of a cesset executio, making the five years during which the scire facias may be issued, to commence at the expiration of the stay. There is no disposition In this court, to carry the construction beyond the decisions in the cases of Young v. Taylor, 2 Bin. 218. Pennock v. M’Kisson, 13 Serg. & Rawle, 144; and Pennock v. Hart, 8 Serg. & Rawle, 319. In the last mentioned case, the stay of execution was entered upon the record, and this entry has been decided, in subsequent cases to be essential to the extension of the period within which the plaintiff may issue a scire facias to revive his lien. Every effort to induce us to carry the construction beyond that point, has proved unavailing, and we have held, that no agreement between the parties for a stay, will be valid, as to third 'persons, unless it be placed upon the record at the time of entering the judgment. Black v. Dobson, 11 Serg. & Rawle, 94. Bombay v. Boyer, 14 Serg. & Rawle, 253.

In Young v. Taylor, the fieri facias was levied on goods and land-, •the very land in controversy, on which was held an Inquisition, that condemned it. Th e fieri facias thus levied, with the inquisition and condemnation, Was considered, in point of notice of the creditor? pretensions, to be equivalent to the scire facias mentioned in the, act of the 4th of April, 1798, and to supersede that writ. Even the letter qf this case affords no support to the errors assigned by the appellants, whose writs offieri facias, were levied on personal property alone; and if we regard its spirit and reason, which constitute the real authority of every precedent, we shall be satisfied that it cannot contribute in the least to sustain these appeals. The act of assembly in question, was passed, for the safety of purchasers of real estate. The scire facias within five years was intended as notice, that the judgment creditor still looked to the land as security for his debt. Iiis omission to sue it out affected him in no other way, than by relieving the land from the lien of his judgment. The purchaser, where a scire facias has been duly sued out, is fully notified of the incumbrance, and of the creditor’s intention to regard the land as the fund out of which he expects to be paid. Buying with notice, he cannot complain. “ But,” said Judge Yeates, in 2 Bin. 229, “ It will not be denied, that the plaintiff taking out a fieri facias, levying on goods and lands of the defendant, and condemning the lands by an inquest, are matters of notoriety, and in point of notice of the creditor’s pretensions, tantamount to a scire facias. Such I take it, has been the construction pf this section of the act.” It was the notoriety of these proceedings upon the judgment affecting the lands, that was thought to supply the purpose of the scirefacias, in giving notice of the plaintiff’s intention not to relinquish his lien upon them. But how can we infer such an intention from afieri facias, levied upon personal property only? In Hunt v. Breading, 12 Serg. & Rawle, 37, it wrns decided, that a judgment creditor, who has seized the goods of his debtor in execution, cannot discharge them, and leave his judgment in force as to the land. See also, Dean v. Patton, 13 Serg. & Rawle, 341, and Duncan v. Harris, 17 Serg. & Rawle, 436. A levy on personal property, cannot be considered as notice to a purchaser, that the creditor means to rely on his lien upon the debtor’s lands. It is an indication of a different intention. The fieri facias itself is no lien upon the land, until it is seized in execution by virtue of the writ.' It is a lien upon the defendant’s goods from the time of its delivery to the sheriff, and where goods of sufficient value are actually seized in execution, the debt is extinguished, and the judgment satisfied. In the fact of levying on personal property, what is there, of actual notoriety, calculated to supply the notice by scire facias of the creditors purpose to renew or revive his lien upon the defendant’s land ? Certainly nothing. -If then, we go to the record, we find an entry of & fierifacias issued, and returned, “ levied on personal property.” Is there any thing in this, that really intimates the creditor’s design to maintain his lien upon the land ? On the contrary,' the entry shows that the creditor has resorted to the defendant’s goods, for the satisfaction of his debt; and ihp legal consequence is, that he is not at liberty to give them up;, and-proceed against the land. In the case of Pennock v. M’Kisson, 13 Serg. & Rawle, 144, the decision, was, “barely on the-effect of a-levy on particular lands, preserving the lien on the land'levied,”' without a scire facias to revive; and it was decided on the authority of Young v. Taylor, that it was sufficient for that purpose; though, Judge Duncan, who delivered the opinion of the court, declared,, that if the matter were r-es integra, he would have given.-adifferr ent decision.

Upon the present question, I consider this court, as untrammeled •by former decisions. We have the plain and unequivocal enactment of the legislature for our guide, without any reason to suppose,, that if they had foreseen the case now under consideration, they would have employed one word more or less, in order to bring it within the exception to their limitation. There is no instance in which afieri facias levied merely upon personal property, has been held to be within that exception; nor can the decisions or practice under the statute of Westminster 2d, in my opinion, warrant such a construction, in relation to a fieri facias thus executed. The ■object and character of that statute, and of our act of the 4th of-' April, 1798, are indeed so different, that I am at a loss to discover* -the propriety of reasoning from one to the other.

In fine, wc .think, that as no scire facias was sued out, according to the second section of the act of the fourth of April, 1798, to revive the judgments of Jacob IC Boyer, for the use of Henry Betz, and the judgment of Joseph Hiester, Esquire, within five years from the first return day of the term, of which they were respectively entered, they did not continue a lien on the real estate oí' the defendants therein named beyond that period, notwithstanding the fieri facias issued upon them, and levied on the personal property of these defendants. The appellee, Jacob Hawk had issued a writ of scire facias, to continue his lien, so that in fact, the case was between those who had complied with the law, and those who had disregarded it.

Gibson, C. J.

No man is more ready than I, to admit the fallacy of the construction in Young v. Taylor, but as it has laid the foundation of a practice, extensively adopted, I think that the germ of jnuch evil is discernible in the present departure from it. The importance of that case is not derived from the point directly decided, but from the breadth of a principle asserted in it, that “ no change was intended in the mode of keeping judgments alive, by issuing an execution within the year and day, superseding the necessity of issuing a scire facias under the statute of Westminster the second.” Since that statute, the judgménffwas kept alive by the issuing and continuance of an execution, without regard to the circumstances of a levy, which was considered to he immaterial; and I feel confident that on the authority of this dictum, the same practice has prevailed in many parts of the state, as 'uninterruptedly since the act of assembly, as it did before. To follow it to the point at which it has been arrested by the legislature, would produce nó material inconvenience; for although little accordant with the letter or spirit of the act, I am not aware that it has ever produced injustice : what the consequences of overturning it maybe retrospectively, no man can foresee. Purchasers have reposed on it for twenty years; and to deprive them of a title founded in a practice repeatedly recognized by judicial decision, ought to require the presence of an overruling mischief, which, it seems to me, does not exist. I am, therefore, averse to any change, particularly- in what seems to me to have become a rule of property; and I am happy to say my brother Rogers, is of the same opinion.

The judgment and decrees of the court of Common Pleas, are affirmed.

Rogers, J. — Concurred with the Chief Justice.


text:
    HENRY BETZ, assignee of WILLIAM GREEN, against GEORGE HEEBNER.
    An assignee of bonds, which are secured by a mortgage, is entitled to all the security which the mortgage affords, although he did not know of its existence when he took an assignment of the bonds.
    An assignment of the mortgage deed, to one who holds part of the bonds, gives him no preference over the other bondholders, in the distribution of the proceeds of sale ot the mortgaged premises.
    Error to the Common Pleas of Schuylkill county.
    This case came before the court of Common Pleas on, a rule to appropriate the proceeds of the sale by the sheriff, of the real estate of George Heebner.

    The following facts were agreed to as.a special verdict.

      George Heebner, the defendant, on the 12th April, 1814, executed a mortgage on 150 acres of land to secure the payment of nine bonds, given at the same time, to William Green, and which fell due On the 1st of April, in each year thereafter. The two first bonds were paid when they fell due. On the 6th of September, 1816, the three next bonds were assigned by Green to Daniel Groeff, and the payment thereof was guaranteed by the said Green: these foopds Were afterwards, on the 9th September, 1816, assigned to
      George Heisler, by Groeff, who also guaranteed the payment thereof : one of these three was afterwards assigned by Heisler to John Stroh, who brought a suit thereon, obtained judgment, issued a fieri facias, which was levied on personal property, and issued a vend, expos, upon which the sheriff returned “ sold and proceeds applied to prior executions.” The other two of the three last mentioned bonds, were assigned by Heisler to the Farmers Bank of Reading, who brought suit thereon, obtained judgment, issued fieri facias, and levied on the mortgaged premises. On the 27th July, 1818, the mortgage deed was first put on record. On the 3d September, 1818, the mortgage deed, together with the four last bonds, were assigned by Green to Henry Betz, the plaintiff, who issued a scire facias upon the mortgage, obtained judgment, issued levari facias, upon which the mortgaged premises were sold for eight hundred dollars, and the money paid into cour.t for appropriation. The question for the opinion of the court was, whether Henry Betz, the assignee of the mortgage, was entitled to the whole amount of the proceeds of the sale, in discharge of his four bonds; or whether each holder of a bond was entitled to a pro rata dividend thereof
    The opinion of the court below was, that the mortgage was a security for all the bonds, and that the proceeds of sale should be distributed pro rata among the holders.
    This opinion was here assigned as error.

      Batman and Biddle, for plaintiff in error.
    This case differs from the case of Donnelly v. Hayes, 17 Serg. Sp Ramie, 400, in this, that at the time Betz took the assignment of the mortgage and bonds, he had no notice that the first bonds were unpaid, and in the hands of assignees. The assignees of the first bonds knew nothing of the mortgage when they took their assignments, for it was not on record at the time: Betz has therefore greater equity, and a superior legal right, in having an assignment of the mortgage itself. Wells v. Archer, 10 Serg. 8f Ramie, 412. When Green assigned the first bonds, there was no lien on the land, and he had a right to make what bargain he pleased with the assignees, and having reserved to himself the mortgage, for the security of the last bonds alone, this agreement will have the effect which the parties designed it should have.

      Smith, for defendant in ex-ror,
    whom the court declined to hear.
   Judgment-affirmed.


text:
    MICHAEL BOWMAN, against the executors of HENRY HERR, deceased.
    Previously to the settlement of an account in the Orphans Court, an action of•assutu/isil will not lie by the ward against his gUardian, to compel such settlement and payment of the balance. ■
    'The Orphans .Court has full power and authority, to settle the account or a /guardian, and if a balance is found to be in his hands, when the ward .arrives at full.age, to compel the payment of it, by attachment or sequestration of the goods or lands of the accountant.

      Ji settlement made by the guardian once in every three years, in pursusuance of the<3d section of the act of the 31st March, 1821, is not conclusive upon the-ward, but may be impeached upon the final settlement of ,the account when the warn arrives at lull age.
    .Upon the death of a guardian before the settle ment of his account, his representatives may be cited and compelled to settle it ; and the Orphans Court may exeicise the same power to compel them to pay over the ¡balance as they would against the guardian himself.
    Appear by the plaintiff from the decision of Huston, 3. at a Cir«cuit court held in Lebanon county.

      Henry Herr, the defendant’s testator, had been the guardian of ■Michael Bowman., the plaintiff) and died without having settled a •guardianship-account of the estate of his ward which had come to fifis hands.
    The plaintiff Michael Bowman, after he arrived at full age, ibrought this suit against the representatives of Henry Herr, his late guardian, and claimed t-o recover upon a declaration for money had ¡and received for his use. ■
    Upon the trial of the cause, the plaintiff offered evidence of the receipt of money by the defendant’s testator, as the guardian of the plaintiff: to which the defendant objected, on the ground that the •plaintiff could not support his action, without showing that previously to the institution of it, the guardian or his representatives had settled a guardianship account in the Orphans court. This objection having been sustained by the court, the plaintifftook a nonsuit, which he afterwards moved the court to take off) and which being refused, he entered this appeal.
    In this court the cause was argued by

      Elder and Hopkins, for .plaintiff appellant.

      Kline and Weidman, for appellees.
   The opinion of the court was delivered by

Rogers, J.

At the common law a guardian is liable to an action of account render, but there is no instance of án action for money had and received, having been sustainéd against him, before settlement of his. account. The remedy by account render, is but seldom resorted to, but the practice is for the ward to file a hill in chancery, calling the guardian to account. The Equity Courts take jurisdiction on the ground of their general superintendance of all infants, and because the guardian is a trustee; and it is the peculiar duty of chancery to ensure the faithful discharge of a trust.- This course has many advantages, as the guardian may be examined on oath,- and is compellable to produce books and papers, and- oilier written documents, that may lead to a thorough- investigation of the case, and a just decision of the controversy. Co. Lit. 89. 1 Blac. Com. 463. Bac. Ab. Title guardian and ward. The same results may be obtained in the action of account render, although in a mode more troublesome and expensive. But this cannot be' done in: assumpsit, which may be the reason, that no such action has evér' been attempted.. As early, as the 27th March, 1713, all authority in relation to guardian and ward, was committed to the. Orphans' Court, with an appeal, as the law now- stands, to the Circuit Court, and afterwards to- the Supreme Court.- They were vested with-the power of appointing guardians, and it is made the especial duty of the court to see that the trust is faithfully discharged, and for' this purpose, they are clothed with authority, at any time to exact-security from the guardian, may discharge him on his own appli- - cation, or may dismiss him for malfeasance, or any other just cause,- and compel him by attachment or- sequestration to pay over the balance in his hands, and surrender all muniments of title in his possession.

In the 11th section of the act, it is directed, that when the minor has been fully paid, satisfaction shall be entered in the Orphans Court. When-bonds have been taken in pursuance of the act of the 30ith March, 1821, the condition of the bond is, to render a just and true account in the Orphans Court, and to deliver up the property of the minor, agreeably to the decree or' order of the court. The third section of the act requires the guardian-.to settle once in every three years, in the same court, and at such, other, times as may be required by the court. These various acts.evidently show that the legislature intended to devise a system complete in" itself, by the erection of a tribunal with all the power necessary to afford adequate relief. Which view of the case, taken in connection with the act, which prescribes, that when a remedy is provided, a duty enjoined, or any thing is directed to be done, by an act of assembly, the directions of the act shall be strictly pursued, induced the opinion, that the Orphans Court alone, had the power to compel the settlement of a guardian’s account. In Denison v. Cornwell, 17 Serg. & Rawle, 378, it was decided, that the Orphans Court were the proper tribunal to settle accounts between guardian and ward. For this purpose, they are clothed with the authority of a court of equity. They may examine the guardian on oath, to charge or discharge him, may compel the production of books or other documents, and in general, may exercise every authority necessary to enforce a faithful performance of the trust. The accounts of guardians consist of a variety of items, some very trifling in amount, and if the investigation must he conducted on the principles of the common Jaw, injustice of the most glaring ldnd may frequently he the result, for unless the guardian he prepared in case of a disputed account with the proof of every voucher, his charge before a common law court will be disallowed. And to make this the duty of a guardian,' in the course of a trial, which is frequently terminated-in a single day, would be such an intolerable hardship,, as to. prevent persons from accepting a trust which cannot be attended with profit, but must necessarily result in trouble, and eventual loss. The Orphans Court may on the contrary, in the exercise of a reasonable discretion, allow time to procure proof of expenditures, or may supply the want of a regular voucher, (which ought to be done with great caution,), by the oath of the guardian himself. And this should be permitted, when from the nature of things,, no regular vouchers can be attained, as for travelling expenses, going to, and returning from school, and others of a similar character. Thu office of guardian is. one of peculiar trust and confidence ; it is therefore of importance that we should adopt no rule, which may prevent men of the first integrity and character, from accepting the trust.

It is said, that Denison v. Cornwell is contrary to the practice. Of this practice, so confidently relied on, no one member of. the courtis aware, and if so general, as to furnish a rule for decision,it is singular, that not a trace of it should exist in the books. The case of Denison v. Cornwell, has alone been produced, and which establishes a rule directly the reverse. Whether in any case, a minor would be concluded by an account settled in his minority, it is not necessary to decide. It is, however, plain he would not be prevented from impeaching an account, settled in the Orphans Court, in pursuance of the third section of the actof 1821.. In directing a settlement, once in' every three years, the legislature intended it as a measure of precaution, an additional security to the infant. By the settlement, the court and the friends of the infant,have an opportunity of knowing the situation of the estate; if there is any reason to apprehend injury to the rights of the minor, measures may be taken to guard his interests, either by dismissing the guardian, or compelling him to give additional security for the performance of his duty. Such a settlement would not conclude the infant, and it may be doubtful, whether it would be even prima facie evidence in favour of the guardian. The Orphans Court would have the poyer to compel a re-settlement of the account, after the infant attained his age. Such a settlement alone would be conclusive, upon both guardian and ward.

Doubts have been expressed whether the Orphans Court have power to enforce their decrees. It- has been said, that resort must be had for that purpose to the common law courts. After settlement, an action of assumpsit will lie, to enforce payment of the balance; but, it is by no means conceded that it is the only, although it is the usual remedy. JBy the 8th section of the act of the 27th March, 1713, the justices may send their attachment for contempt, and may force obedience to their warrants, sentences and orders concerning any matter or thing cognizable in the same courts, by imprisonment of the body, a sequestration of lands or goods, as fully as any court of equity may or can do. As early then, as the first organization of the court, full and plenary authority has been given them, by attachment or sequestration, to enforce compliance with their order or decrees.

By the death of Henry Herr, the guardianship ended, and if there was a balance in his hands, the minor became a creditor of the estate, and this the administrator may be compelled to settle and pay over. Whatever the deceased has received in his individual or fiduciary character, his representatives may be compelled to settle, either by attachment or sequestration, as in the case of ■the guardian himself.

Judgment affirmed.