text:
    Clellans et al. v. Commonwealth.
    Where persons are convicted of a riot, although accompanied with the aggravation of riotously rescuing a fugitive slave from his master, it is illegal to sentence them to the penitentiary.
    The legitimate imprisonment for such offence is in the county jail. But upon the reversal of the sentence of the court helow, the Supreme Court, if it deem the illegal imprisonment in the penitentiary, from the time of sentence to the period of reversal, a sufficient punishment for the offence, will not sentence the prisoners de novo, or remit the record to the'court helow for that purpose, hut will discharge them.
    In error from the Quarter Sessions of Cumberland county.

      May 31. This was an indictment against John Clellans and thirty-six others for a riot, accompanied with the aggravation of riotously rescuing from their owners certain fugitive slaves from the state of Maryland, who had been arrested in Cumberland county, in this state, and who were at the time of the rescue in the lawful custody and under the control of their owners, in the county aforesaid, to whom their service was due, under the laws of the state of Maryland. The indictment contained two counts. The first count was for a riot, in the common form; and the second for riotously rescuing certain fugitive slaves from the state of Maryland, who were found and arrested in this state, from the lawful custody of their owners or masters. The jury returned a verdict of guilty against John Clellans and twelve others of the defendants, and not guilty as to the other defendants. The sentence of the court (Hepburn, P. J.) was as follows: — “Sept. 7, 1847. The sentence of the court is, that you, John Clella'ns, suffer punishment by separate or solitary confinement at labour in the State Penitentiary for the Eastern Distinct, for the period of three years • that you pay a fine of one dollar to the • commonwealth, and the costs of prosecution; and that you be in the custody of the sheriff until the sentence is complied with.” The same sentence was passed upon Jacob Garver, Moses Jones, Augustus Coates, Anthony Boon, John E. Gray, Achilles Yandegrift, Yalentine Thomas, George Norman, Charles Turner, and Henry Myers, ten others of the defendants. The other defendants, James Jones and Eli Butler, found guilty, were on the same day sentenced to imprisonment in the jail of Cumberland county.
    The only question here was as to the legality of the sentence of the court, imposing imprisonment in the penitentiary, at labour, upon Olellans and others of the defendants.
    Errors assigned: 1. The court erred in imposing imprisonment in the penitentiary.
    2. The court erred in imposing imprisonment at labour.

      Charles Gfibbons, for plaintiff in error.
    The punishment for riot is prescribed by the act of 1705. Persons convicted of the offence “ shall be reputed and punished as rioters, according to the laws of England.” In 1705 it was punished in England by fine and imprisonment: Dunlop’s Laws, 16.
    “ But when men are indicted for riots or the like, they will usually yield themselves, and pray to be admitted to their fine (in which case the justices of the peace commonly 'do assess but some small sum or fine), and upon payment thereof do discharge the offender: and hereby the offenders are not imprisoned. By statute 2 H. 5, ch. 8, the offenders are as well to be imprisoned as fined:” Dalton’s Justice, ch. 82, 301.
    “ At common law a riot was punishable as a trespass, and as well the fine as the imprisonment were at the discretion of the judges.” “Where justices of the peace are remiss herein, in not sufficiently punishing such offenders by due fine and imprisonment, the Lords in the Star-Chamber have often assessed upon rioters for the same riot, a greater penalty if they see cause:” 1 Russel on Crimes, 269; 1 Hawk. PL C., Title Riots, sec. 12; 4 Bl. Com. 140; Arch. Crim. Pl. 449; 1 Chit. Crim. Law, 583. Riot punished by fine and imprisonment, and formerly, in cases of great

      enormity, it appears that offenders were sometimes punished with the pillory. But this was never done in Pennsylvania.
    Statute 13 H. 4, ch. 7, treats rioters as trespassers, and the punishment is left to the discretion of the king and his council. 2 H. 5, ch. 8, Statutes at Large, 496, imposes for “heinous riots” one whole year imprisonment, and persons attainted of petty riots “shall have imprisonment as best shall seem to the king or his council.” Fine and imprisonment was the only punishment inflicted in England for this offence in 1705; punishment by pillory was not then imposed. Statute of 1 Geo. 1, which made riot a felony under certain circumstances, was not passed till 1714. No English statutes are in force in Pennsylvania which impose an infamous punishment for such an offence.
    Dunlop’s Law's, 420, sec. 4 of act of 23d April, 1829, enumerates offences punishable by solitary confinement at labour in the penitentiary. See also 5th and 6th sections, same act. Labour can only be imposed in cases of misdemeanours, or crimes which were formerly punished by whipping or the pillory: Rogers v. Commonwealth, 5 S. & R. 466; Grimes v. Commonwealth, 15 S. & R. 74; Scott v. Commonwealth, 6 S. & R. 226; James v. Commonwealth, 12 S. & R. 220.

      Bonham, deputy attorney-general, contrh.
    The only question is, whether the sentence of the defendants, upon conviction for a riot, to punishment in the penitentiary, be legal ? The indictment, in this case, was under the act of 1705: Dunl. Dig. 16; which enacts that rioters shall be punished according to the laws of England. The punishment, according to the laws of England, was by fine and imprisonment; to which the pillory, in aggravated cases, was sometimes added: 2 Ch. Or. Law, 490; 1 Haw. PI. Or. ch. 65, title 12; Crompton’s Jus. 61; Dalt. ch. 46; Cro. Car. 507; 2 Rolle’s Abr. 208. The only British statute in force in Pennsylvania, is that of the 34th Edwr. 3, ch. 1, Rob. Dig. 389; 1 Sm. Laws, 30, in note. The act of the 5th April, 1790, sec. 4, to amend the penal laws of the commonwealth, substituted imprisonment not exceeding two years, instead of the pillory, &c.; to be confined, kept to hard labour, fed, clothed, &c. The term of imprisonment, under this act, was extended to seven years, by the act of the 4th of April, 1807 : Pur. Dig. title Penal Laws, 941. The second section of the latter act authorized the removal of any one convicted out of Philadelphia, within three months after conyiction, to the jail of Philadelphia county; provided such person were convicted of any of the offences enumerated in the first section of said act. By the act of the 28th of March, 1831, the buildings of the State Penitentiary for the • Eastern District, &c., were enlarged; and the punishment, by existing laws, in the jail and penitentiary-house of Philadelphia, changed to separate and solitary confinement, at labour, in the State Penitentiary, in accordance with the provisions of an act entitled, “A further supplement to an act entitled, ‘An act to reform the penal laws of this commonwealth,’ passed 23d of April, 1829Pur. Dig. 549. He also cited the act of 31st of May, 1718, 1 Sm. Laws, 111, and note, to show that the common law was in force in Pennsylvania; and also Krosmer v. Commonwealth, 3 Binn. 577; Rogers v. Commonwealth, 5 S. & R. 463; Scott v. Commonwealth, 6 S. & R. 225; Grimes v. Commonwealth, 15 S. & R. 74; White v. Commonwealth, 1 S. & R. 139. Pillory abolished in England by 56 Geo. 3, ch. 138.

      June 5.
   Burnside, J.

The plaintiffs in error were indicted and convicted of a riot. The first count in the indictment is in the usual form. In the second, the riot was laid in rescuing certain fugitives from labour, from the state of Maryland, from their masters. There is no doubt but it was an aggravated ease of riot. On being found guilty, they were sentenced to pay a fine of one dollar each, and undergo imprisonment for three years in the Eastern Penitentiary, by separate and solitary confinement at labour.

. The error assigned is, in sending the prisoners to the Eastern Penitentiary. Whether the laws of Pennsylvania authorize this, is the question before us.

The attorney-general justifies the sentence under the act of 1705 (Dunlop, 16; 1 Smith L. 30), which provides, that if any persons to the number of three or more shall meet together, with clubs, staves, or any other hurtful weapons, to the terror of any of the peaceable people or inhabitants of this province, and shall commit, or design to commit, violence or injury upon the persons or goods of any of the said inhabitants, and shall be convicted thereof, such persons shall be reputed and punished as rioters, according to the laws of England; and such act of terror or violence, or design of violence, shall be deemed and accounted a riot: and the 4th sec. of the act of the 5th of April, 1790 (Dunlop, 125; 2 Smith, 531), which provides, that any person convicted of any offence not capital, for which, by the laws (of this state) in farce before the act was passed, burning in the hand, cutting off the ears, nailing the ear or ears to the pillory, placing in and upon the pillory, whipping or imprisonment for life, is, or may be inflicted, shall, instead of such parts of the punishment, be fined, and sentenced to undergo a servitude at hard labour not exceeding two years: and the supplement to the act of 1790 (Dunlop, 194; 4 Smith, 398), invests the courts with power to sentence in such cases for any period not exceeding seven years in their discretion.

This leads us to .inquire what was the law of England on this subject in 1705, and how far their statutory punishments were introduced into Pennsylvania.

Dalton, who is a writer of authority (p. 203), informs us that at common law a riot was punishable as a trespass, and as well the fine as the imprisonment was at the discretion of the judges; and in the same manner the statute 13 II. 4, enables justices of tho peace to punish such offenders. But the imprisonment and the fine of such offenders were to be increased by the statute 2 H. 5, ch. 8, and therefrom when they are remiss herein (scilicet) in not sufficiently punishing such offenders by due fine and imprisonment, the Lords of the Star-Chamber often assessed upon rioters for the same riot a greater penalty.

The Star-Chamber, which was ordained by the 5 H. 1, ch. 1, and the 21 H. 8, ch. 2, and which was abolished by the 16 C. 1, ch. 10, was vested with special powers to punish riots, routs, and ■ such other misdemeanours as were not sufficiently provided for by the common law, and for which the inferior judges were not so proper to give correction. In Hawk. P. C., ch. 68, s. 12, we find that formerly, in cases of great enormity, offenders were punished with pillory, but such punishment is now taken away by the 56. Geo. 3, ch. 138.

No English statute on the subject of riots was, it is believed, ever adopted in this province. The 2 H. 5, ch. 8, authorized the punishment of rioters according to the discretion of the king and his counsel: 1 Stat. at Large, 496. The province of Pennsylvania adopted the English common law, which was punishment by fine and imprisonment in the county jail, and our sessions occasionally ordered violent men to give security for good behaviour.

It is believed that the pillory was seldom if ever used in this state, except when directed by the legislature of the province. No English statute on the subject of riots was ever adopted by the province. Shortly after the year 1790, all acquainted with the history of Pennsylvania know that in many parts of the commonwealth violent riots were common. The western insurrection produced liberty poles, and violent riots were the consequences in several counties, and at some death ensued ; yet we are not aware that any judge at that day thought he had power to send a convicted rioter to the penitentiary. When I came' to the bar, there were old and experienced judges on the bench, and aged lawyers in practice, but I have never witnessed or hoard of any person convicted of a riot, being sent to the penitentiary.

In Robb v. The Commonwealth, Mr. Justice Duncan, whose experience in the criminal jurisprudence of the country was more extensive than that of any man of his day, tells us that a sentence which adjudged the convict to be fed, clothed, and treated as the law directs, is erroneous, unless the offence is made subject to such treatment by some act of Assembly. Assault and battery with intent to commit a capital offence, as rape, or murder, or an attempt to commit the crime against nature (offences in their nature infamous), would fall within that class of offences described in the fourth section of the act of the 5th of April, 1790, as “offences not capital,” for which, by the laws in force before the act, entitled “ An act to amend the penal laws of the state,” burning in the hand, cutting off the ears, placing in the pillory, whipping, or imprisonment for life, was or might be inflicted. Many offences punished in England by infamous inflictions,' had not been so punished in Pennsylvania before the act to amend the penal laws, and I would not be disposed to be governed by such cases in this state, or apply them to the construction of our penal laws, nor expose any citizen to infamous punishment for undefined offences not in their nature infamous, at the discretion of any court: 6 S. & R. 226. Again, the same learned judge, in James v. The Commonwealth, 12 S. & R. 220, held, that the ducking-stool was abolished. This punishment had been ordered to be inflicted by a court in the city of Philadelphia, so late as 1824, on a female in that city who had been convicted as a common scold. He tells us that the act of 1790 was the abolition of all infamous and disgraceful public punishments for all classes of minor offences and misdemeanours : 12 S. & R. 231.

The pillory, tumbril, and ducking-stool, belonged to the same class. They were punishments inflicted in a barbarous age : were introduced into England by the Saxons: and all who underwent either of them were deemed infamous : 3 Inst. 219. The pillory was the only one of the class that ever disgraced Pennsylvania; and that has been long since abolished. This court never permitted the ducking-stool to sully our jurisprudence; nor will it permit the supposed consequences of the pillory to find footing in our ameliorated system, when we have no trace on our records of its application to the crime of riot. If a solitary case is on record, such case is unknown to me, and I would treat it with no respect. If it is deemed salutary and essential to the public safety that such punishment should be inflicted, let the legislature provide them. Our laws do not authorize the sentence inflicted in the case before us, and the judgment is reversed.

As the prisoners have been confined in the Eastern Penitentiary about three-fourths of a year, we deem this as severe a punishment as if they had been confined in the county jail, where- they legitimately should have been sent, for two years.

They are discharged.

      X'TMs count is given at length in Lewis’s Criminal Law, 683.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    Long v. Labor.
    Testator haying given legacies of nearly equal value among Ms cMldren and the cliildren of Ms deceased cliildrcn, directed a sale of Ms real estate after the death of Ms widow, and that the residue of Ms estate, after paying legacies, should be equally divided “ among my cMldren who shall be living at the time of such distribution, and in case any of them should be deceased, their heirs to receive in equal parts such share as their parent would be entitled to receive were they living” : The issue of a child who died before the date of the will are entitled to participate in the residue with the cMldren who survived the period for distribution.
    . In error from the Common Pleas of Blair county.
    Case stated for the opinion of the court, whether the plaintiff, one of the heirs of Magdalena Zeigafus, is entitled to a share of the residue, under the will of Long.
    Testator, by his will, after making provision for his widow, bequeathed to his son John $600, deducting a debt due from him; to the five children of his daughter Barbara, $100 each; to his daughter Magdalena, $600, to be equally divided among her heirs; to his daughters Susan, Mary, and Civily, $600 each; to his daughter Sally,-hundred dollars; to his son Jacob, $800 and the occupancy of his farm during the life of his widow, yielding •her the rent and privileges devised to her out of the farm. The question arose on'the clause following: — “Eleventhly. It is my will that mj personal property, not hereinbefore bequeathed, be sold by my executors as soon as conveniently after my decease, and that my real estate be sold by my executors, after the death of my wife Mary — the sale to be made to the best advantage by said executors — and the legacies hereinbefore to be divided as before bequeathed, to be divided to my children and grandchildren, to be paid out of the amount of the sale of said property, real and personal; and the remainder, if any, after the said legacies are paid, to be equally divided amongst my children, who may be living at the time of such distribution; and in case any of them should be deceased, their heirs to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” He further provided, that if the proceeds of sale were insufficient to pay the legacies, “ each of my heirs shall lose in proportion to the sum bequeathed.” Magdalena, the daughter, was dead when the will was made, leaving children; of whom the plaintiff was one.
    The executors sold the estate, real and personal, and after payment of legacies there was a surplus of $6,998.
    The question was, whether the plaintiff was entitled to a share thereof. The court was of opinion she was not, and gave judgment accordingly.
    Calvin, for plaintiff in error.
    The will shows it was written by an ignorant man, and in collecting the intention the court will pay but little attention to the technical terms used. The heirs, of which the plaintiff is one, are not to be disinherited without plain words. We contend that the phrase, “ if any of them should be deceased,” refers to all his children, or that “children” in the bequest of the residue, includes grandchildren. If “ them” does not refer to children generally, it must refer to such children as may be living at the time of the distribution: that is, the reference is to the antecedent, either with or without the qualification — if without, then we are clearly entitled — if with the qualification, the clause is absolutely repugnant, for how can there be children of a child deceased at the time of the distribution, who had yet survived that period ?

      Banlcs, contó.
    The meaning of the clause is, that those children who shall survive the period of distribution, and the children of those dying after testator, but before distribution, shall share in the surplus, and so it was decided on similar words: Gray v. Gar-man, 7 Jurist, 275; 5 Harr. Dig. 1810. To the same effect is Hough v. Hough, 4 Rawle, 363; Dickerson v. Lee, 4 W. 82. He also cited 2 Whart. 99, 376; 6 W. 156: 1 Binn. 546, 91; 1 Roper, 69, 128.

      July 8.
   Gibson, C. J.

This residuary bequest is susceptible of opposite constructions; the one founded on a particular form of expression, and the other on an intent apparent from the frame of the will. The testator, having directed his personal property to be sold immediately, and his land to be sold at his widow’s death, and having given nearly equal legacies to his living children, as well as to the children of those who were dead, proceeds to say: the legacies hereinbefore (directed) to be divided to my children and grandchildren (are) to be paid out of the sale of the said property, real and personal; and the remainder, if any, after the said legacies are paid, (is) to be divided among my children who may be living at the time of such distribution; and in case any of them should be deceased, their heirs (are) to receive, in equal parts, such share as their parent would be entitled to receive, were they living.” As the words in the last clause are properly applicable to the children of those who should die in the interval, and not to the children of those already dead, a strict interpretation of them would exclude the latter. This is the interpretation of the defendant, and it certainly receives countenance from Gray v. Garman, 7 Jurist, 275, in which the bequest was in nearly the same words, but predicated of persons who stood in a very different relation to the testator; but it receives no countenance from Hough v. Hough, 4 Rawle, 363, in which the bequest was to the testator’s present surviving children, and the representatives of them that shall be then deceased — words too pointedly exclusive of the children of those dead at the making of the will, to leave room, for construction. Thus stands the case on the argument for the plaintiff, and on what was probably an accidental form of expression adopted by an unskilful and illiterate penman. But the choice or collocation of words set down by one who could neither write nor spell with tolerable accuracy, is certainly entitled to no great respect as special indices of Ms meaning. Instead of the random expression used by the testator, it is very probable he would have said on another trial to deliver his meaning: “to be divided among my children living at the time of such distribution, and the heirs of those dead;” in place of which, he fell upon a roundabout mode of expression, which, strictly taken, would introduce an inequality of distribution inconsistent with the ruling principle of the rest of the will. “We cannot,” said Lord Mansfield, in Chapman v. Brown, 3 Burr, 634, “from arbitrary conjecture, though founded on the highest degree of probability, add to a will, or supply an omission in it; but we may construe a will, and, from what is expressed, necessarily imply an intent not particularly specified in words.” Besides, it is a familiar rule of construction, that the intention is to be collected from the whole will. Here, we are not merely left to conjecture that the testator did not mean to exclude the offspring of the dead, from the absurdity or the injustice of the thing; but we can resort to his general principle of equal distribution which pervades every other part of the will. Had he explicitly adopted one rule of distribution for a part of his estate, and another for the residue, we would be bound to follow his directions; but the result desired by the defendant, can be obtained only from interpretation which may be influenced by other considerations. The words “ any of them,” may be referred to the living or the dead; but more naturally to the living as the proximate antecedent, and the one of which alone contingency was predicable. Still, the propriety of this depends on grammatical construction, which has not always, though it has usually, a controlling effect. In the long series of cases in which survivorship was limited to the death of the testator, beginning with Stringer v. Phillips, 1 Eq. Ca. Abr. 292, ph, and ending with Mayberly v. Strodes, 3 Ves. 450, grammatical construction was disregarded; for, as was said by Sir William Grant, in Brown v. Bigg, 7 Ves. 279, a testator generally supposes that a legatee will outlive him. ' I should say, he always supposes it where he omits to provide for his death in the testator’s lifetime. A strictly grammatical construction, therefore, would refer the survivorship to the period of distribution; yet it has generally been overcome by insignificant circumstances of general intention. Here it seems to have been limited to no particular period; for to five of the testator’s living children, he gave $600 each; to the children of a deceased daughter, also $600; to the five children of another deceased daughter, $100 each, probably to avoid insignificant fractions in the division of an additional hundred; and to the remaining son, $800, in consideration of privileges yielded by him to the widow, in obedience to the will. Thus we see, that the principle of his will is equality; and we are bound to give it effect so far as there is room for interpretation. In Gray v. Garman, no such principle was discoverable; for nothing had been previously divided among the residuary legatees, by any measure of distribution whatever. Besides, it did not appear that the testator had known or seen the deceased brother or sister of his wife; and it is not to be supposed, that he would be so solicitous to provide for the offspring of a stranger as he would be to provide for those to whom he was bound by ties of nature. That case was well decided on its circumstances ; but it is not a precedent for the present. It cannot be doubted that the intention was not to discriminate between the children of the dead and the children of the living; and, as the question is open to construction, we are bound to carry out what we suppose to have been the testator’s general plan.

Judgment of the Common Pleas reversed; and it is considered by the court here that the plaintiff recover of the defendant $163.82, with costs, pursuant to the agreement in the case stated.


author: Bell, J.

text:
    Bredin v. Agnew.
    The substitution of the administrator of a defendant in an action pending at his decease, is a sufficient commencement of an action to continue the lien on the-real estate of the defendant.
    Such an action in the county where administration was granted, duly prosecuted to judgment, more than five years after the death of the intestate, continues the lien of the debts on his real estate throughout the commonwealth.
    In error from the Common Pleas of Cumberland county.
    Special verdict. Agnew brought an action of covenant against Bredin, in 1834, in Cumberland county. Pending the action, Bredin “dying, his widow administered, and was substituted as defendant in 1839. One of the counsel having been elevated to the bench, the cause was certified to a special court, and judgment obtained in 1841. A writ of error was taken, and the judgment affirmed in 1843. This scire facias issued in 1846, with notice to' his heirs and terre tenants. The question was, whether lands in Perry county, held by them by descent from Bredin, were subject to the lien.
    It was further found, that from 1843 to 1846, the plaintiff was contesting the validity of a judgment confessed by Bredin, which was finally decided by this court not to he valid against him. '

      The court gave judgment, to he levied of the lands in the hands of the heirs.

      Meed and (fallagher, for plaintiff in error.
    There was no such security for this debt as is mentioned in the exceptions in the statute, nor has the plaintiff complied with the other requisites, by either filing a statement or bringing an action within five years. The act being one of limitation, is to be strictly complied with: 1 W. 14. The pendency of the action is not within the spirit of the statute; otherwise it would be more efficacious than a judgment. Nor has there been a due prosecution, but rather negligence, which is never favoured. The scire facias in Cumberland has no effect on the lands in Perry; for the proceedings are foreign, and can give no notice.

      Watts, contó.
    The debt was a lien at Bredin’s death, and the question is, Has it been continued? A claim could not be filed where the debt was presently due, nor could it be intended that a discontinuance and new suit was necessary. There was a prosecution to judgment against the administrator in due course, and when that was finally determined, a scire facias was taken out, before the lien had expired. This is the proper practice: 7 W. & S. 464 ; 2 Barr, 113; 9 W. & S. 17. The delay in fact was occasioned by the fraudulently confessed judgment, which was not settled until 1846.
    There is no necessity for any proceeding in Perry county. The lien of the debt was perpetual and coextensive with the state, except so far as limited by the act of 1834, and we are within the exception of that act.

      June 12.
   Bell, J.

One of the results of our intestate laws, which treat the lands of a decedent as assets for the payment of his debts, is to charge them as liens on the realty. Originally this lien was indefinite as to time, and coextensive-with the geographical limits of the state: Trevor v. Ellenberger’s Executors, 2 Penn. Rep. 94; Seitzinger v. Fisher, 1 W. & S. 293; Payne v. Croft, 7 W. & S. 463. These qualities still characterize it, except so far as they have been modified by positive enactment, or the application of rules drawn from analogous laws. The first restraining statute was the act of 1794, re-enacted by the act of 1797. This provides that no debts but such as are secured by mortgage, judgment, recognisance, or other record, shall remain a lien on the lands of a decedent longer than seven years from his death, “unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executors, or administrators, within the said period of seven years; or a copy or particular statement of any bond, covenant, debt, or demand, when the same is not payable within the seven years, shall be filed within the said period in the office of the prothonotary of the county where the lands lie.” This provision is substantially repeated in the 24th section of the act of 24th February, 1884, except that the length of the lien is reduced to five years, reckoning from the death of the decedent. But by Penn v. Hamilton, 2 W. 53, Ducan v. Clark, 7 W. 217, Benner v. Philips, 9 W. & S. 13, and other cases, it is settled that the mere prosecution of an action to judgment within the period fixed by the statutes, will not prolong the lien indefinitely. Under the equitable application of a rule borrowed from the act of 1798, a scire facias must be sued out within five years from the expiration of the statutory period, or, when this is overrun before judgment recovered, within five years from its rendition. Yet this is not for the purpose of reviving the lien of the judgment, for none is created by it; but to continue the original lien of the debt, which exists independently of the judgment. The act of 1798, and its supplements of 1827 and 1828, which look to the revival of local liens, embrace only judgments recovered inter vivos, and not those originally obtained against the executors or administrators of a deceased debtor. As these give no lien proprio vigore, a scire facias serves but to prolong the encumbrance proper to the source from which the judgment itself springs. The restriction as to time is the only one to which this encumbrance has been subjected. I know of no statute which arises to circumscribe its operative effect to the county in which the debtor died. The clauses in the first and subsequent acts of Assembly that require, where the debt is not payable within seven years, a statement to be filed in the county where the lands lie, obviously have no application where the debt is due and payable within the prescribed period. When this happens — as it does in a very large majority of instances — a statement is not permissible; for there, nothing short of an action duly prosecuted will avail to preserve the lien of the debt. It might be salutary to call for a'statement, or something equivalent, in every case where it .is intended to charge lands elsewhere than in the deceased’s own county. But it is not so enacted. Nor is a judgment recovered against an administrator to be treated as necessarily within the purview of the act of 1836, which provides a recorded testatum fieri facias as a means -of engrafting the lien in other counties; or of the act of 1840, giving the same effect to a transferred exemplification of the record. These acts contemplate the ordinary case of judgments recovered against the debtor while in life, and which become liens in other counties, only from the time of their transfer thither qua judgments. But, as we have seen, it is not the judgment rendered against the personal representative that confers the quality of lien on the debts' of a deceased person. This dates everywhere from his death. It cannot, therefore, be supposed the legislature intended to limit and restrict a lien so extensive, by statutes professedly enacted to enlarge the sphere of what were before purely local encumbrances. They look to the creation of a new lien, without reference to the date of the original judgment, except for the calculation of interest, while the system which regulates the remedy against a decedent’s estate, regards only the prolongation of an existing lien without interference with the date of its inception. To compel the possessor of such a lien to proceed either under the act of 1836 or 1840, would therefore be, not to extend his remedy and increase his security, but to control both: a result obviously not dreamed of by the framers of those statutes. These being, therefore, for the purpose of restriction, inapplicable to a judgment recovered to continue the lien of a decedent’s debt, or to enforce its payment, this peculiar burden is still loft to operate in all its original extent, bounded only by the limits of the state; though suit can be brought but in one county.

It remains only to inquire whether the clause in question has been duly prosecuted within the meaning of the act of 1834. Literally, the act looks to an action commenced after the death of the decedent. In the present instance, it was commenced in the lifetime of the debtor, but not prosecuted to judgment until after his decease. At the period of his death the suit was pending and undetermined. But the sole object of the statute is to inculcate diligence in the prosecution of the claim: and this is as well satisfied by the further prosecution of a suit pending at the time of the death, as by the institution of a new action. There would be nothing gained on either side by a discontinuance for the mere purpose of instituting another suit, and it cannot be supposed the legislature intended to require this. Five years is given within which to commence proceedings, but it is surely no objection that they are commenced before, if continued after. Indeed, the substitution of the administrator of the deceased, may, within the equitable construction of the statute, be considered as the commencement of a new action. At common law, the suit would abate by the death of the defendant, and the plaintiff be thus turned round to a new action. But this is a remedial statute, which, in place of a new action, permits the personal representative to come in and assume the place of the deceased party, or, in default of this, gives to his antagonist the right to call him in by scire facias. This is a judicial writ given to revivify the proceedings, and may be substantially considered as a recommencement: Fries v. Watson, 5 S. & R. 222; Meason’s Estate, 5 W. 464.

Nor is it necessary the action should originally be brought against the widow and heirs of the decedent, in order to charge his lands, under the 34th section of the act of 1834. A creditor suing the administrator alone, does not thereby release the real estate of his deceased debtor from the lien of the debt. He may. after-wards sue out a scire facias, to bring in the widow and heirs or devisees, and thus continue his lien, provided it. be done within the prescribed time: McMillan v. Reed, 4 W. & S. 237; Murphy’s Appeal, 5 W. & S. 165; Benner v. Philips, 9 W. & S. 13. This is what was done here. Every successive step was within the time allowed by the existing laws, and, therefore, duly prosecuted within the meaning of its terms: Payne v. Craft, 7 W. & S. 458. If the march of the case has been a tedious one, it is impossible not to perceive that the slowness of its advance is attributable to the many obstacles thrown in its way by those who, as defendants, industriously opposed its progress. The consequent delay is not, therefore, to be imputed altogether to the plaintiff. Perhaps, from the nature of the case, it was inevitable.

Judgment affirmed.


text:
    Hood v. Palm et al.
    In an action on the case for a conspiracy to defame, by spreading false statements that defendant had cheated and defrauded a third person, (the words not being actionable,) and also by composing a libellous statement to the same effect: the declaration need not aver special damage.
    In error from the Common Pleas of Cumberland county.

      May 31. This was an action on the case against four defendants; the declaration, reciting that plaintiff had been insured by the Franklin Fire Insurance Company, that his house and the contents were' burned, and that his loss had been partially paid by the company, alleged in substance that the defendants, maliciously intending to deprive plaintiff of his good name, &c., and to put him to great expense, and without probable cause to subject him to the punishment inflicted by law on every person who designedly cheats another (the recitals showed that the unlawful acts charged were prior to the act of 1842); and also render him liable to an action by the Franklin Fire Insurance Company; did combine falsely and maliciously to charge plaintiff with cheating and defrauding the Franklin Fire Insurance Company; and, in pursuance and execution of their conspiracy, had circulated, in the hearing of divers persons, that plaintiff had cheated and defrauded the said company; that he had secreted goods, and made the company pay for them, as though they.had been burned; and, in further execution of their conspiracy, they made and concocted a false and malicious written statement, purporting to be a deposition of one of defendants; which was set out, and which in substance contained a charge against plaintiff, of having, on the day his house was burned, procured divers merchandise to be secretly removed, to keep them out of the way of the insurance company, saying, if the company got them, he would get nothing; which written statement defendants sent to the company.
    Then followed the usual averment of loss of character, &e.
    The court charged the jury that no damage was implied by law, and there being none specially laid, they must find for defendants.

      Biddle and Watts, for plaintiff in error.

      Beed, contó.

      June 7.
   Gibson, C. J.

This cause seems to have been treated as an action of slander, to which it bears some resemblance. The declaration charges a conspiracy to defame the plaintiff, by speaking scandalous words of him, and by libelling him; in supjDort of which, he gave evidence of words, as overt acts, which would not be actionable if spoken without preconcert; and also of a written publication of the same words, which was distinctly libellous. But it is a rule, that where a libeller may be prosecuted by indictment, he may be prosecuted by action, though the words would not have been actionable had they not been written. The reason is, that a libel, diffused far and wide as it may be by the power of the press, has a violent tendency to destroy the reputation of him who has the misfortune to be the subject of it; and as damage is implied from it as a legal and natural consequence of an aggravated wrong, it need not be specially laid. The implication is the same as the presumption of damage that is raised by the speaking of -words • which are actionable in themselves. Damage is the gist of an action on the case for a conspiracy, as it is of every action on the case — it is the gist of an action even for actionable words — but it follows not that it must be particular and substantial. If it were so, it would have to be specially laid as well as proved; but the declaration in Skinner v. Gunton, 1 Saund. 228, contains an allegation of no more than general damage. The action for conspiracy has been extremely rare; and that case furnishes, perhaps, the only reliable precedent for it to be found in the books. In Arch-bold’s Nisi Prius, 450, it is said, that a conspiracy, when indictable, is actionable like a libel, and consequently without proof of special damage. To put another in jeopardy or terror, is itself a damage to him; and it is on this ground that it is actionable, to charge maliciously an innocent person with a crime. It is said, that the plaintiff in this case was not in jeopardy. Of prosecution by indictment, he certainly was not; but of being ruined in his reputation and business, he certainly was. The libel which jeoparded him, would give him an action against a single publisher of it; and why not against a number who published it in concert ? It is not to be maintained that a libel, charging what would not be actionable independent of the publication of it, is not actionable without proof of' special damage from it; or that it is not an injury from which constructive damage results by implication of law. From every tort, the law implies damage; and when substantial damage is not shown, it implies the smallest amount of it; but still an amount . sufficient to sustain an action for it. An action of slander could seldom be maintained on any other basis; and if a libel be actionable when published by one, it is actionable when published by a plurality. But I do not rest the case entirely on the fact that the defendants conspired to publish a libel. A conspiracy to defame by spoken words not actionable, would be equally a subject of prosecution by indictment; and if so, then equally a subject of prosecution by action, by reason of the presumption, that injury and damage would be produced by the combination of numbers. The overt acts laid in this declaration, were scandalous words rvrit'ten, and scandalous words spoken; and, backed as they were by a confederacy, to give them circulation and credit, they raised a legal presumption of damage to a greater or less extent. Defamation by the outcry of numbers, is as resistless as defamation by the written act of an individual. The mode of publication is different, but the effect of it is the same; and it is for this reason, that an action lies at the suit of one who has been the subject of a conspiracy, wherever an indictment would lie for it. But an indictment lies for any conspiracy to vex or annoy another — for instance, to 'hiss a play or an actor, right or wrong. In consistence with this, is Swan v. Saddlemire, 8 Wend. 676, in which proof of actual damage was held to be unnecessary in an action against the parties to a satisfied judgment for combining to set it up as unsatisfied, and to sell the plaintiff’s land on it, though the execution was void; and it was said to be sufficient,' that the acts of the defendants had exposed the plaintiff to inconvenience, trouble, or expense. That case is in point; and with Hunt v. Downing, Cro. Car. 478, and other authorities cited in support of it, settles the principle, that the action before us ought to have been sustained.

Judgment reversed, and a venire de novo awarded.


text:
    Commonwealth v. Magee.
    The authority which a judge exercises at his chambers over process of the court in a case pending, is that of the court itself, and may bo enforced by attachment. A judge, in vacation, has power to stay an execution, and his order is binding upon the officer to whom it is addressed.
    Upon an application to a judge in vacation, to obtain a stay of execution, the proper mode of proceeding is by summons in the nature of a rule nisi, fixing a day for hearing, which should be served on the opposite party; and without this be done, the judge ought not to interpose his power: unless the order applied for, is a matter of course.
    Notice of an order to stay execution must be served on the party to be affected by it; otherwise he may disregard it: but it seems that where an order to stay execution may be made without summons, notice is not necessary; and that the omission to give it is not fatal to the validity of the proceeding, ab initio, in any case.
    The omission or neglect to give notice of an order to stay execution, however indispensable it maybe to correct practice to give it, is but an irregularity which upon application would furnish sufficient grounds to rescind the order, but would not justify the officer’s refusal to obey it.
    It is no part of a sheriff’s duty to notify the plaintiff in an execution of the receipt of a judge’s order to stay the same.
    A sheriff cannot be impeached for misfeasance by the plaintiff, for not executing a writ of fi. fa., which had been stayed by the order of a judge.
    The omission by the sheriff to return an execution until after the return day, is not of itself such negligence as will make him liable to an action.
    In error from the Common Pleas of Perry county.

      June 1. This was an action of debt, brought in the name of the commonwealth for the use of L. G-. Brandebury and G. Klink, on the official bond of Alexander Magee, late sheriff of Perry county, and his sureties, to recover the amount of a writ of fieri facias, placed in his hands for collection.
    The plaintiffs, for whose use this siiit was brought, obtained an amicable judgment on the 4th of January, 1844, against Conrad Ernest, No. 114, January Term, for 1844, for $100, without stay of execution.
    . On the 9th April, 1844, a writ of fieri facias issued on this judgment, No. 3, August Term, 1844, and was placed on that day in the hands of the sheriff for collection. At the time the execution came into the hands of the sheriff, and for a long time afterward, the proof was, that the defendant had sufficient personal estate to pay and satisfy the amount of the execution. The sheriff retained the execution in his possession, without executing it, until the 28th November, 1844; at which time he returned it, “ stayed by order of court; so answers Alexander Magee, rsheriff.” The August and November terms intervened between the issuing and return of the writ.
    On the 5th August, 1844, a judgment was entered in favour of John Ernest (the son) against Conrad Ernest (the father), No. 304, April Term, 1844, for $590.83. On the 7th August, 1844, a, fieri facias, issued on this judgment, No. 1, November Term, 1844, and was placed in the sheriff’s hands; to which the following return was made: “August 16, 1844, levied on defendant’s personal property, and sold the same, 4th October, 1844, for $412.17; proceeds of sale applied as per statement (read in evidence), and $392.78 applied to debt and interest on this judgment.” Defendant had not any property left, having become insolvent.
    The defendants then offered the following paper in evidence: — ■
    “ Brandebury and Power, v. Conrad Ernest. Judge Junkin is requested to stay proceedings upon an execution in this case till next term, to allow the defendant to move the court to' open the judgment and set aside the execution, “ Conrad Ernest, being duly sworn, says that the note on which this judgment is entered, was given to the plaintiff for services to, be rendered after the date of the note as attorneys for him, and that the services have not been rendered according to the contract of the parties, and that consequently the money, is not due, and the execution has been issued improperly and should be stayed.
    “ Sworn and subscribed before me, the 4th day of May, 1844.
    John Junkin.

      “ May 4th, 1844, in the a*bove case proceedings stayed until the 2d day of the August Term ensuing this date.
    John Junkin.”
    Neither the above application nor affidavit were signed by Conrad Ernest, nor by any one else for him. On the back of the paper was endorsed, in the handwriting of the person who drew the petition and affidavit, the following:—
    “ Judge Junkin will please give Conrad Ernest an order to the sheriff to stay proceedings till the next court.-”
    The foregoing offer was objected to by the plaintiffs.
    1st. Because the sheriff returned the fi. fa. stayed by order of court, and no proof can be given to contradict it.
    2d. Because the proceedings were ex parte, without notice, and were coram non judice.

    The objections were overruled, exception taken, and bill sealed.
    The defendants then proved that this paper was delivered the same day to Sheriff Magee, and found among his papers after his death: the writ having been returned by the sheriff in his lifetime.
    The plaintiffs- requested the court to charge the jury on the following points:—
    1st. That it was the duty of the sheriff, upon receiving the writ of fieri facias, No. 3, August Term, 1844, against Conrad Ernest, to levy the debt, interest, and costs of the defendant’s goods and chattels, if he had a sufficient amount liable to levy and sale; and if he neglected or refused to do so, whereby the plaintiffs lost their claim, he made himself liable for the amount of the writ in his hands, and plaintiffs are entitled to recover in this action.
    2d. That if upon the delivery of the fieri facias to the sheriff, he had a reasonable doubt of the plaintiffs’ right to issue the same, or of his duty to execute the writ; or of the title of defendant in the execution, to the goods to be levied on, it was his duty to make a levy, and to inform the plaintiffs and ask for an indemnity; and, if he neglected to do so, but undertook to determine those questions for himself, and neglected and refused to levy and sell the defendant’s goods, whereby the plaintiffs lost their debt, he made himself liable for the plaintiffs’ claim, and they are entitled to recover in this action.

      3d. That if upon tbe application of Conrad Ernest, tbe defendant, in the execution to Judge Junkin in vacation, he peremptorily directed further proceedings on the execution in the sheriff’s hands to be stayed without a rule to show cause or any notice to the plaintiffs, and without making provision for the continuance of the lien on defendants’ personal property, or taking sufficient security to indemnify the plaintiffs, his proceedings were coram non judies, and afford the defendants no protection in this action.
    4th. That if Judge Junkin did direct the sheriff on the 4th of May, 1844, to suspend further action on the execution, without any notice to the plaintiffs, and no further proceedings were had upon the order of the judge, and the sheriff held the writ in his hands from that time until the 28th of November following, without giving ' the plaintiffs any notice, and during that time he received other executions, upon which he levied and sold the property of Conrad Ernest, and paid away the proceeds, whereby plaintiffs lost their claim, he made himself liable, and plaintiffs are entitled to recover in this action.
    5th. That this fi. fa. was a lien on the personal property of Conrad Ernest from the time of its delivery to the sheriff, and the same was not divested by any order made by Judge Junkin in vacation; and if other executions came to the sheriff’s hands afterwards, upon which he sold the property of Ernest, while and at the time this execution was still in his hands, it was his duty to retain and pay to plaintiffs the amount of their fi. fa. out of the proceeds of sale, and having failed and refused to do so, plaintiffs are entitled to recover in this action.
    6th. That if the sheriff received this execution’ oh the 9th of - April, 1844, and held the same until the 28th of November following; during which time the property of defendant was sold, and the money made' on other executions/and on the. last-mentioned day returned the writ, stayed by order of court, when no order in fact was made by the court; it is a false return, conclusive upon the sheriff, and it is not competent for the defendants to contradict it; and if they fail to show that it was stayed by order off court, the plaintiffs are entitled to recover.
    7th. That if the sheriff received the order of Judge Junkin about the time of the alleged application of Ernest to the associate judge to stay proceedings on the execution; and the associate judge made an order to stay the same without limits or condition, and the sheriff held the order and never returned the same to the court, and no notice was given by the sheriff to the plaintiffs of the same, and the sheriff held the writ in his possession until after the August Term had gone by, and until after the November Term had gone by; during which time he sold the defendant’s property, and received the money, and during all this time no notice or rule was served on the plaintiffs, or any action had in relation to the same, by which the plaintiffs lost their money; the holding over of th & fieri facias, and the withholding of' notice to the plaintiffs, was such a misfeasance and nonfeasance on the part of' the sheriff, as to mate him and his sureties liable in this action.
    The court (Hepburn, P. J.) charged the jury as follows: — •
    “ The plaintiffs seem to regard this order of Judge Juntin, staying the execution against Ernest, as a matter betwixt him and the sheriff; which from any evidence before us is clearly not the case. The order of the judge was procured by the defendant in the execution, and was by him handed to the sheriff, and of course binding upon that officer. Nothing was done upon that order afterwards in court by either party — it seems to have slept, and other executions came into the sheriff’s hands against Ernest, which took his property. Under the evidence in the cause the plaintiffs have not made out such a case as will charge the sheriff’s sureties with this debt; your finding should therefore be for the defendants.”
    Charge excepted to by plaintiffs, and bill sealed.
    Errors assigned: 1st. The court erred in admitting the evidence in the first bill ef exceptions.
    2d. The court erred in answering the plaintiffs’ points in the negative.
    3d. The court erred in their charge to the jury in saying the “plaintiffs have not made out such a case as will charge the sheriff’s sureties with this debt; your finding should therefore be for the defendant.”
    Brandebury, for plaintiffs in error,
    contended: 1st. That the order of the associate judge in vacation, without notice to the plaintiffs, was coram non judice, and afforded the sheriff no protection ; that it was the notice alone to parties in interest, that gave vitality to judicial proceedings. He cited Bagly’s Practice, 17,18, 20, 21, found in 15 Law Library. That without notice, the order Was no supersedeas: lb. 35; Hecker v. Jarret, 3 Binn. 411.
    2d. That if the order of the judge did suspend the proceeding until the return day, yet the sheriff made himself liable by concealing the order, and neglecting to return it and the fi. fa., until ■ he had levied and sold the defendant’s personal property on subsequent executions, and paid out the money. That the plaintiffs’ execution was entitled to the money: Beale v. Commonwealth, 7 W. 183-186; Lewis v. Smith, 2 S. & R. 157; Pur. Dig. title Execution, see. 39; Hutchinson v. Johnson, 1 T. R. 729, and note there cited; Stewart v. Stocker, 13 S. & R. 199; Commonwealth v. McCov, 8 Watts, 154; Myers ¶. Commonwealth, 2 W. & S. 62.

      Reed, contrA
    The order of the judge was a supersedeas to the execution,- and a justification to the sheriff. The judge had jurisdiction over the subject-matter, and his decree was final and conclusive. The sheriff had no right to question or disregard it. As to the power of the judge in vacation to make the order, there can be no doubt. By the 13th section of the act of 22d May, 1772, 1 Sm. Laws, 140, the judges of the Courts of Common Pleas are empowered “ to minister justice to all persons, and to exercise the jurisdictions and powers, &c., as fully, to all intents and purposes whatsoever, as the justices of the Courts of King’s Bench, Common Pleas, and Exchequer, at Westminster, or any of them may or can do.” It is said, the authority of a judge at his chambers is the authority of the court itself: 9 Bing. 104; 2 Maulé & Sel. 119; 1 Dowl. 274; Bagly’s Practice, in 15th Law Lib. 2. Judges at chambers are often called upon ex necessitate rei to set aside irregular judgments signed in vacation; to discharge persons improperly taken in execution: 15 Law Lib. 5; 9 Bing. 104. Such orders may be made without notice, they being deemed the orders of the court; 15 Law Lib. 14. The return in this case rightly made. No breach of sheriff’s bond if he did not return his writ sooner : 8 W. 154, 450. He is not bound to return a writ of fieri facias: Bing, on Executions, 251; 13 Law Lib. 106. A sheriff need not return & fieri facias unless called upon to do so: 13 Law Lib. 109. It is the duty of the party to rule the sheriff to return his writ: Watson on Sheriffs, 83; 7 Law Lib. 60. Sheriff not liable to an action at the suit of plaintiff for not returning a writ of fieri facias. A rule to return his writ may be had by order of a judge in vacation: Sewell on Sheriffs, 413; 46 Law Lib. 360. The supersedeas was the act of the judge, not of the sheriff; and a sheriff is never required to show a judgment, or order, to justify under an execution. Bound to execute orders of the court, at his peril: 46 Law Lib. 90.

      June 9.
   Bell, J.

It is true a sheriff must use due diligence to levy and make the money demanded by an execution placed in his hands. What will amount to due diligence must necessarily vary with the circumstances of each case; but it may be safely affirmed that when there are no peculiar reasons known to the sheriff calling for. the exertion of unusual energy, and no special request by the plaintiff or his agent for immediate action, a delay such as occurred here before the delivery of the judge’s order of the 4th of May, in the absence of collusion or fraud, will not be deemed laches to fix the officer for loss of the debt. Indeed, no fact is suggested on the record tending to show that the lapse of time that intervened between the delivery of the writ and the making of the order, endangered the plaintiff’s demand. The execution which eventually swept the goods of the defendant, Ernest, was not issued until long after, and its success was consequent, not on the delay of the sheriff, but incidentally upon the legal effect of the judge’s interference.

The inquiry is thus reduced to the single question, whether his order to stay proceedings was obligatory on the sheriff, or a nullity, commanding neither respect nor obedience.

The authority that a judge exercises at chambers in a cause pending, is the authority of the court itself; Doe dem. Prescott v. Roe, 9 Bing. 104; 2 M. & S. 119 ; 1 Dowl. P. C. 274. And it may be enforced by attachment issued by the court, for the reason that disobedience of a judge’s order is a contempt of the court, and punishable as such.

It is said, that, upon any other principle than that of delegated authority, it would be difficult to demonstrate the validity of many of the acts done by judges in cases and under circumstances in which the legislature has not specially invested them with power, in their individual capacities. This species of jurisdiction is exercised ex necessitate rei to prevent injustice and oppression, and to facilitate and direct the interlocutory proceedings of suits at law. It consequently embraces a variety of subjects more or less important to a proper administration of justice. Some of them are of course; and the administration of others calls for the exertion of a sound judgment and discretion. It is properly, therefore, under the control of the court from which the authority is derived, and to which a dissatisfied party is at liberty to appeal. Among the subjects which reasonably fall within the circle of this jurisdiction, the power of staying an execution issued in vacation has been repeatedly recognised and acted on. Such an authority to be exercised by a single judge, is indeed necessary to prevent oppression, and to prohibit the undue sacrifice of property illegally levied. For these purposes it should be liberally, though cautiously, exercised. There can exist, therefore, no doubt that a judge of the Court of Common Pleas possesses authority to make such an order as is complained of here, and, when properly made, that it is obligatory on the officer to whom it is addressed. But while this is conceded, it is insisted that the order under consideration was coram, non judice, and void for want of previous notice to the plaintiffs in the execution. It is very true that the proper mode of proceeding in most cases is by summons, in the nature of a rule nisi, fixing a day for a hearing, and served on the opposite party. Without this the judge ought not to interfere, unless, indeed, the order or direction sought is of course. When the order is made, notice of it should be given to the party to be affected by it; otherwise he is at liberty to disregard it: Bagly’s Prac. 15, et seq. But notice is not always necessary, for in some cases an order may be without summons. Nor is the omission of it fatal to the validity of the proceeding, ab initio, in any case. Though it is highly proper, and indeed indispensable to correct practice, a neglect to give it is but an irregularity which, upon application, would furnish a sufficient ground to rescind the order made, but would not justify the officer’s refusal to obey it. The power of acting residing in the judge, it is no part of the sheriff’s business to inquire whether it has been executed in an orderly manner, or to determine how far the steps properly precedent to the order have been taken. In this respect, the fiat at chambers is analogous to a writ, which the sheriff is bound to execute, though it be irregular; the distinction being between process voidable for irregularity, and process void by lack of jurisdiction of the subject.

Nor was it the duty of the sheriff to notify the plaintiffs in the execution, of the receipt of the judge’s order. He was justified in presuming that all had been rightly acted; and could not with propriety, or for any purpose of legal effect, inquire further. Some degree of diligence was due from the plaintiffs ;• and an application from them to the judge, would doubtless have procured a recission, or at least a modification of the order, by the annexation of a condition preservative of their priority of lien: Clark v. Manns, 1 Bowl. P. C. 656; Bagly’s Prac. 29. Either of these cotírses was within the power of the judge. The first would probably have been pursued, had he, on inquiry after summons, been satisfied his order was irregular and improperly obtained. The latter might have been effected by a direction to stay proceedings, after levy. made, the levy to remain as a security. But lacking any motion of this sort, it certainly lies not in the mouths of the plaintiffs to impeach the sheriff of misfeasance in the non-execution of the fieri facias. His hands, as we have seen, were tied. It is not enough to aver the plaintiffs knew nothing of the order, and could therefore take no steps for its abrogation or amendment. The answer is, they might have known it, had they inquired of the sheriff touching the non-execution of the writ: an inquiry as commonly made as it is natural. That they did not do this, is their misfortune, if not their fault; the consequences of which are not to be visited upon the officer, who is in no default. The truth is, the inceptive. error was committed by the judge; first, in acting upon an ex parte hearing, and next, in granting an unconditional order, without respect to the rights of the plaintiffs. The result of this mistake, in this particular case, ought to warn the associate judges of the commonwealth, who are not expected to be learned in matters of law, against a similar interference with process, without an opportunity first given to the antagonist party to be heard. The English mode of procedure in such cases is clearly pointed out in Bagly’s Practice, at Chambers, cap. 1, and being well calculated to protect the rights and interests of all parties, should be followed, here, as closely as possible.

The inquiry recurs, what was the effect of the judge’s order ? Certainly to hang up the execution until after the return day. Its functions were thus suspended until, by lapse of time, its vitality was extinguished. Beyond the return day, its operation and vigour could only have been preserved by an actual levy; or rather, the effect of the levy being to place the goods in gremio legis, they would have so remained for satisfaction of the plaintiffs’ execution, unless released by their consent or misconduct, or by operation of law. But a levy under the first execution being wanting, it had no hold on the goods after the return day. Consequently, the second execution was the only effective one in the hands of the sheriff at the time of the sale of the goods. The proceeds were therefore properly applied in satisfaction of it.

The non-return of the first execution until after November Term, is not such negligence as of itself makes the sheriff liable to an action. Though it would be better, regularly, to make return of all such writs, it seems to be settled he need not do so, unless specially ruled : Bingham on Executions, 25Í; Watson on Sheriffs, 83. But were this otherwise, the neglect to return the writ is not assigned as a breach of the official bond, and, therefore, presents no subject for inquiry here. Nor is there anything in the breach suggesting a false return. It has already been shown that the'authority exercised by a judge at chambers, is the authority of the court. His order is, in legal contemplation, the order of the court, and may, without impropriety, be so treated in a return of the writ. The objection to the evidence is consequently unsound, and the averment of a false return unsustained.

■ Judgment affirmed.


author: Rogers, J.

text:
    Bank v. Harper.
    Bail in error, who by reason of Ms liability pays the costs in an action of ejectment, may take an assignment of the judgment therefor, and recover the same by execution against the original defendants.
    Upon the entry of an amicable action of ejectment, they, who are there made parties, are liable for all costs which may accrue. It is too late after verdict and judgment for one of two defendants to say, that he had no interest in the result: if Ms name was improperly used, or without Ms consent, he must resort to those who used it.
    The parol evidence of payment by the surety in this case is not sufficiently rebutted by that of the defendant in error.
    In error from the Common Pleas of Cumberland county.

      June 1. This case originated in an indictment in the Quarter Sessions, for cutting timber on the land which became the subject of controversy. When the indictment came on for trial, the prosecutors and defendants agreed to convert it into an amicable action of ejectment, in which the Farmers’ and Mechanics’ Bank were made plaintiffs, and John Harper and Sarah Miller, defendants. At the trial of the cause, a verdict and judgment were rendered for the plaintiffs. The defendants, thereupon, sued out this writ of error, on the oath of John Harper, one of the defendants, who entered into the recognisance with Michael Holcomb and Daniel Eckles, as sureties. The judgment of the court below was affirmed, and the record returned to the Common Pleas. A suit was brought upon the recognisance of bail, when Holcomb and Eckles gave their judgment bond for the amount, whereupon the plaintiff made the following assignment to them:—
    “Farmers’ and Mechanics’ Bank'} No. 286, August Term, 1843, v. Vin the Court of Common Pleas John Harper and Sarah Miller. J of Cumberland county.
    “For value received I do hereby assign, transfer, and set over to Daniel Eckles and Michael Holcomb the sum of $117.13, in this case due and owing from the defendants to the plaintiff, at the risk of the said Eckles and Holcomb, and without any recourse to the said plaintiff or to me, in the event of failing to recover or collect the same from the said defendants, or any recourse to the plaintiff or to me, for the costs of any proceeding to collect the same.”
    The bond was given in evidence, with a receipt in the handwriting of John Harper upon it, for the payment of the money by Daniel Eckles.
    A fieri facias and attachment were issued by Eckles upon the original judgment in ejectment, to recover the amount of the costs which he alleged he had paid, and which was levied upon the property of Sarah Miller. ■ She appeared, and asked the court to set aside the execution, on two grounds: 1st, that the judgment was not the subject of assignment, being for a tort: and 2d, if it were, the payment was not made by Eckles, but by Harper, one of the original defendants: and therefore the execution should be set aside.
    Hepburn, P. J., was of opinion, that the execution ought to be set aside on the first ground, and therefore said little on the second; but the case turning upon the facts, in this court, it is necessary to give the evidence:—
    “Edward Shower, being duly sworn, deposes and says: I bought a judgment bond from L. G. Brandebury, given of Michael Holcomb and Daniel Eckles, amounting to $117 or $118, in favour of the Farmers’ and Mechanics’ Bank. Mr. Brandebury said it was for costs in the suit of the Farmers’ and Méchanics’ Bank against John Harper and Mrs. Miller; neither of the parties to the bond ever spoke to me upon the subject of paying it, or something of that kind. Some time after the bond was due, Harper spoke to me. [Plaintiffs here object to any declaration of John Harper being given in evidence.] Harper wished me not to hand the bond entered up; that he was going to Perry county in a few days, where he was to get money; and as soon as he returned the bond should be paid. In a day or two after, Harper returned from Perry county. Daniel Eckles met me, and told me to come to Harper’s office, and the money would be paid. I went and got the .bond, and met Eckles and Harper at Harper’s office; and the money was paid there in the office. It was counted by them both. I can’t tell which paid or furnished the money.
    “ Cross-examination. — Mr. Eckles and I had not spoken on any subject for years before; we were not on speaking terms.

      “ Question: Did not Mr. Eckles, when he met you at Irvine’s corner, say to you, that he was ready to pay that bond ?
    “Answer: To the best of my recollection, Eckles said to me, to come to Harper’s office, and the bond would be paid.
    “ Question: Did you not tell Eckles, at that time, that you had not the bond with you?
    “ Answer: I did tell him I had not the bond with me; it was at my office.
    “ Question: Did he not ask you then where he would meet you to pay it ?
    “Answer: My recollection is, that Harper’s office was mentioned, and no other place.
    “ Question: State if Mr. Eckles was in Harper’s office when you returned with the bond ?
    “Answer: I am not able to say if he was there then, but was there a very few minutes after.
    “ Question: Were you acquainted with Mr. Harper and his circumstances ?
    “ Answer: I was.
    “ Question: What were his circumstances in regard to money matters ?
    “Answer: I.have no knowledge of myself, but the public says he is poor. [Objected to by defendants’ counsel.]
    “ Question: Would you have bought any paper on Mr. Harper within the last year or two ?
    “ Answer: I would not.
    “Question: Was not Mr. Harper exceedingly embarrassed in money matters within the last year or two ?
    “ Answer: He had the character of being embarrassed. [Objected to by defendants’ counsel.]
    “ Question: Did you not tell Mr. Brandeburyj before the bond was paid, that unless it was paid you would have it entered up ?
    “ Answer : I did tell Mr. Brandebury unless it was paid it would be entered up.
    “ Question: State if it was not after you had been speaking to Brandebury, that John Harper spoke to you on the subject ?
    “Answer: It was.
    “ Question: State if you had any conversation with Harper • before the bond was due ?
    “ Answer: I had no conversation with Harper before the bond was due.
    “ In chief: State if Harper and Eckles were very intimate ?

      “ Answer: I believe they were.
    “ Question: State if Eckles did not buy a good deal of Harper’s property, and hold it in trust for Harper ?
    “ Answer: I understood he did. •>
    “ Captain George Ege, also duly sworn, says—
    “ [Captain George Ege objected to as a witness by the plaintiffs,
    ■ — it is further objected that the declarations of John Harper are inadmissible as evidence.]
    “After the bond was paid in question, as I understood, and after the attachment was issued and application for sequestrator was made against Mrs. Miller, to attach her rents and have them sequestered, I met Mr. Harper at his office door. I asked him what was the meaning of all those proceedings against Mrs. Miller ? [He stated that it was for the cost arising out of the suit of the Farmers’ and Mechanics’ Bank against himself and Mrs. Miller. I told him that it was very hard that she should be brought in, as she took no part in the trial of the suit in court. He then told me it was Eckles that was pushing the thing. I then told Harper that 1 had called on Mr. Showers, to ascertain how the matter stood. I told Harper that Showers had told me that he, Harper, had called on Showers, and requested him to wait until he would return from Perry county, and that he would pay it as soon as he would come home. Harper then stated to me, that the payment of the bond was made out of his (Harper’s) money; and if it had not been for Eckles, there would never have been anything said about it against Mrs. Miller; but, says he, you know how I stand with Eckles. I am under his thumb, and he (Eckles) has many of my matters in his hands, and I can’t quarrel with him; or something to that amount. He further told me, if you speak to Eckles and get him reconciled, I will say nothing more about it. I did not speak to Eckles, that I recollect of; but I communicated the substance of the conversation I had with Mr. Harper to Michael Holcomb. He (Holcomb) denied that Harper had joaid the money; he said it was not so.]
    “ Lemuel G. Brandebury, being duly sworn according to law, doth depose and say: I was counsel for the Farmers’ and Mechanics’ Bank, in the case of said bank against John Harper and Sarah Miller. It was an action of ejectment; and the plaintiff recovered a verdict and judgment in the Court of Common Pleas ;«from which the defendants removed the same, by a writ of error, to the Supreme Court. John Harper, Michael Holcomb, and Daniel Eekles entered into a recognisance therefor, in the sum of $300, upon the usual conditions.
    “ The judgment of the Court of Common Pleas was affirmed by the Supreme Court; and William Grimshaw, attorney in fact for the Farmers’ and Mechanics’ .Bank, authorized and directed me to receive and retain the costs in the said action, on account of services rendered to said bank. At my request, Mr. Grimshaw wrote and signed the prsecipe for the action upon the recognisance, in the case of the said bank against John Harper, Michael Holcomb, and Daniel Eekles, to recover the costs. I filed the declaration, and the cause was put to issue, and for trial. The cause was down for trial, I think, several times, and as I had some misgivings about a recovery, in consequence of some irregularity in the taxation of the costs, and as Daniel Eekles complained of the hardship of having to pay these costs, without having had any interest in the suit with either John Harper or Sarah Miller, I proposed, before the trial came on, that if he, Daniel Eekles and Michael Holcomb, would give their judgment bond for the amount of the costs in the case of the Bank v. Harper and Miller, I would assign the judgment to them, and they could recover the same from John Harper or Sarah Miller, or both. I explained to Mr. Eekles the importance of this mode of proceeding to him, and how foolish he would be to suffer a verdict and judgment to be entered in the suit then pending against himself, Holcomb, and Harper, inasmuch as nothing could be got from Harper, and he would have to bring a new action against Mrs. Miller, if he could even reach her at all by an action. I told him if he and Holcomb would give the bond, I would assign the judgment to them, and they could proceed against Harper or Miller in the name of the bank for their use, but that the assignment would be at their own risk, and without any recourse to the bank or myself. Mr. Eekles agreed then to give the bond, and take an assignment of the judgment. I drew up the bond, and Eekles and Holcomb signed it, and I assigned the judgment to them.
    “ Some time after the bond was given and before it was due, I inquired of Mr. Eekles if it would be convenient for him to pay it at a small discount. We chaffered about the discount, and disagreed. He reminded me of the understanding that the bond was not to be entered up before it was due, and said it should be paid when due, as he would not have it entered against him on any account. I transferred the bond to Edward Showers, and informed Eekles of the fact, and also that it would not be entered up before due, but that I supposed Showers would do so as soon as it was due, as he and Eckles were not on good terms. When it became due, I informed Eckles of it, and think I told him Showers had spoken to me on the subject. The bond was paid, as I understood from Showers and Eckles. I never heard it disputed that Eckles paid the money, until I heard the application to set aside the proceedings on the judgment against Harper and Miller.
    “ The costs in the case of the Bank v. Harper, Holcomb, and Eckles, were to have been paid by Major Harper. He said he would arrange the same with Mr. Beetem, the prothonotary, and as I supposed out of costs which were received by the prothonotary for Harper, he having been prothonotary some years before.
    “Major Harper had a knowledge of the whole transaction, and was a witness to the bond, I think; but the part he took, so far as I knew, was in consequence of Holcomb and Eckles having entered into the recognisance of bail in error, and about being compelled to pay the money, and his solicitude to aid them in any way he could, to save themselves from the loss of the amount, if it could be done. The costs included in the bond I think amounted to one hundred and seventeen dollars and thirteen cents.
    “ [Counsel for Sarah Miller objects to the whole of the foregoing deposition of L. G. Brandebury, Esq., and particularly with all or any conversation with Daniel Eckles, in the absence of Mrs. Miller ; no objection to the deposition being in the handwriting of the witness.]
    “ Oross-examination. — I have no personal knowledge of Mrs. Miller taking any part in person in the case of the Bank against John Harper and Sarah Miller. But when the action was transferred from the Quarter Sessions to the Common Pleas, the names of Mrs. Miller and John Harper were placed upon the records by consent of John Harper and Captain George Ege, acting as the agent of Mrs. Miller.
    “John M. Woodburn being duly sworn, deposes and says: [The testimony of John M. Woodburn objected to by Hugh Gaullagher, counsel for defendant. Any conversation Mr. Woodburn had with John Harper, on the subject now inquiring into, is objected to.] I came to town and went to Major Harper’s office to arrange some business; and in conversing about the arrangement, I spok'e of getting Daniel Eckles to carry out the arrangements. Harper said it was not worth while to call upon Eckles, because he was very angry about having to borrow the money to pay the bond given for the cost in the suit of the Farmers’ and Mechanics’ Bank, to recover the Moses Eoullc survey. Mr. Harper went on to state that the bond was in the hands of Mr. Brandebury against Eckles and Holcomb; that Holcomb could not pay his half of the bond; and he (Haiqper) had failed to pay Eckles half. In a few days after this conversation, I returned to Mr. Harper’s office again. I asked Mr. Harper for the loan of some money; he told me that he could not lend me any, because he had not got it, and that he never was as scarce of funds before; that he was in such a condition himself, and got Daniel Eckles in such a condition, as that he (Eckles) had to go and borrow the money to lift the bond; that Brandebury had transferred the bond to Mr. Shower; and that if he had not paid it, would have been entered against him; I mean that Eckles had to go and borrow the money. He (Harper) said he had nothing for some length of time that hurt his feelings so much as to compel Eckles to pay this money. Harper stated frequently to me after-wards, that it was all a fudge, that he (Harper) had never paid a cent of the money. Mr. Harper said it was a fudge, that he (Harper) had ever paid the money.

      “Gross-examiried. — Question.—If there was not a very intimate business relationship existing between John Harper and Daniel Eckles? [Objected to.]
    “Yes, there was.
    “ Question: State all you know on the subject of that relationship, as to his purchasing property or anything else in trust for Mr. Harper. [Objected to.]
    “Answer: I don’t know anything about an agreement or arrangement of Eckles purchasing anything in trust for Mr. Harper. Mr. Eckles did make purchases of Harper’s property. The first purchase was the time the sheriff sold Mr. Harper’s personal property. Mr. Eckles purchased nearly all the personal property of 'Mr. Harper. I think a part of the property has remained with the family until the present time. I was present at the sale, when Mr. Eckles bought. I think Mr. Eckles purchased two hogs for Mr. Harper.
    “ In chief: Mr. Harper said that Daniel Eckles [this objected to] had done more for him than any of his relations; that he (Harper) had not a cent frequently to go to market with; that he had sent to Mr. Eckles, and that he had furnished him with money. Eckles frequently complained to Harper, in my presence, that he was scarce of money; Mr. Harper replied, that he did not know how he would pay him what he owed him. [This objected to.]
    “John Reed, having been duly sworn, says: That he was employed as counsel by John Harper, Esq., on the ejectment case referred to, Farmers’ and Mechanics’ Bank v. John Harper and Sarah Miller. Mr. Biddle and he were the counsel in the Court of Common Pleas, and argued it in the Supreme Court. This deponent was employed by John Harper, Esq., alone, and only ajopeared for him. The writ of error was taken out at the instance of Mr. Harper. This defendant wrote the prceeipe for the writ of error, and the form of the oath and recognisance. Mrs. Miller was not present, nor any one for her; nor was she, or any one for her, counselled on the subject, so far as my knowledge extends. Mr. Harper alone agreed to give the compensation stipulated between him and Mr. Biddle, and this deponent, for their services.

      “ I was not concerned in the case in the Quarter Sessions, out of which this ejectment sprung. I was present in court when the trial of the indictment commenced, and was concerned in an ejectment. I recollect that Mr. Harper, after the trial, complained of the fact of his being made defendant, in the ejectment growing out of the indictment, and exposed to the costs of the indictment, in which he was not a party. [Cross-examination excepted to by Mr. Gaullagher*]
    “¥m. M. Biddle, being duly sworn, deposes and saith: I do not remember anything of the taking out the writ of error — John Harper and Sarah Miller, plaintiffs in error, v. Farmers’ and Mechanics’ Bank, defendants in error. I argued the case in the Supreme Court, but the prgecipe for the writ is in Judge Reed’s handwriting, and is signed by him, Biddle & Reed.
    “ Gross-examined. — I was concerned originally in the case in the Quarter Sessions, out of which the ejectment in the Common Pleas, . and the subsequent writ of error, above referred to, arose. I was concerned for George Ege. When the case in the Sessions came on for trial, after the commonwealth had given their evidence in chief, I opened the defence. I stated in the opening that the timber had been cut by George Ege, Esq., and his hands, and that it had been so done under colour of title; that Mrs. Miller had a title to the land on which the cutting had been done; and that Mr. Ege had acted as agent; and that John Harper also had a tax-title to the land; and that the timber cut by Captain Ege had been done so with the consent and approbation of Mr. Harper. My recollection is, that, after the opening was made, and before any evidence was given in for defendants, that it was suggested by the court that the case should be converted into an ejectment, and the costs already accrued should abide the result. Mr. Reed and deponent consulted with John Harper in relation to the matter, and Mr. Harper agreed that it should be so done, and he made a party. I have stated that Judge Reed and I consulted with Harper — I may be mistaken in this — ■ possibly it was Mr. Graullagher. Captain Ege was satisfied with the arrangement as made. In the suit of the Farmers’ and Mechanics’ Bank against John Myers and George Ege, title in Mrs. Miller was set up by defendants, and Captain Ege represented that he was acting as the agent or attorney in fact for Mrs. Miller. On the trial of the case last mentioned, Captain Ege produced two deeds of an old date, from himself to Mrs. Miller (which had never been recorded), and a general power of attorney from her to him. One of these deeds related to the Wolf tract, the other to the land on which the alleged cutting had taken place, for which Mr. Ege was indicted. In relation to Mrs. Miller’s name appearing in the ejectment along with John Harper’s, my recollection is indistinct, but my impression is, that it was placed there at the suggestion of the counsel of the bank, who wished to include both the persons under whom Captain Ege alleged he cut timber, in the case in Quarter Sessions, in this ejectment, so as to settle the title. In the ejectment case, my agreement for a fee was alone with John Harper.”

      Brandehury and Watts, for plaintiffs in error.
    This ejectment was substituted for an indictment against George Ege for cutting timber, Avho claimed to relieve himself, on the ground that he entered on the premises by authority of a license from Sarah Miller: she was, therefore, the germ from which all this fruitless litigation had its growth : she suffers herself to be made a party to the ejectment with Harper: judgment is rendered against them both: they both prosecute a writ of error: the securities in the recognisance were for both the plaintiffs in error, and these securities, upon the affirmance of the judgment, paid the costs, upon the defendants’ assigning to them the judgment. It is now said that this judgment was not the subject of assignment, because it was a judgment in an action of tort: now, although it may be that a cause of‘action sounding in tort, may not be assignable, but certainly, when a judgment is recovered in such cause of action, it is assignable, or, upon the death of the plaintiff, passes to his personal representative: the only question then is, was the money paid by the surety, and did he, in consideration thereof, take an assignment ? And the proof in the case shows clearly that he did. The witness, Mr. Showers, states distinctly, that Harper and Eckles were both present when the money was paid to him, and he does not know which paid it — Mr. Eckles did pay it, and did take the receipt for it to himself. If Mr. Harper did say that he paid it, he said again that he did not, but what he said cannot prejudice the plaintiffs’ rights ; he was interested, and his interest was to say that he had paid it.
    Gaullagher, contrd.
    The assignment to Eckles and Holcomb was without consideration. They were liable on their recognisance for the costs. An action on the recognisance was pending and ready for trial; when they gave their judgment-bond, and took an assignment. This assignment was without consideration, as regards Mrs. Miller; and they were not purchasers for a valuable consideration. The judgment was payment or satisfaction of the recognisance. It created no new or additional liability against Eckles and Holcomb; and it did not therefore create a new consideration for the assignment. The bond and assignment did not place Eckles and Holcomb either in a worse or better situation than they were under the recognisance. When Harper paid the money, or they for him, the judgment against Mrs. Miller was satisfied. Harper paid the bond; or, at all events, furnished the money to pay it. The fieri facias and attachment were, therefore, rightly set aside. If, however, Harper did not pay, and Eckles and Holcomb did pay, they are in no better situation than their principal, who on payment and taking an assignment, could not recover against Mrs. Miller, on the principle settled in Peck v. Ellis, 2 Johns. Ch. Ca. 131; 6 Watts, 224; and in 12 Wend. 298.

      June 12.
   Rogers, J.

If the costs were paid with the money of Harper, the court was right in. setting aside the execution; but although this is alleged, the testimony is too light and contradictory to afford a safe rule for our government. The weight of the evidence certainly is, that they were paid by Eckles, one of the sureties in the recognisance. Divesting the case of this assumed fact, this is the ordinary case of a judgment against two persons, fixing them for the costs on execution against both, and a levy on the property of one, the other being insolvent. Whether Mrs. Miller, the complainant, was properly one of the defendants in the ejectment, we cannot now inquire. She appears on the record as such, and it is too late, when the execution for costs is issued, to allege she had no interest in the controversy. Her remedy, if any, is against those who without authority made her a party to the original action. It is very certain the sureties had nothing to do with the controversy in its commencement, and ought not to be affected by the improper conduct (if it existed, which I doubt,) of those who undertook to act for her. It is said, she was no party to the writ of error — but this is an error; for the writ was sued out in the name of both, by the attorney of both: and Eckles and IJolcomb were the sureties of both. By entering into the recognisance, they became jointly and severally bound for payment of costs; and of course .Mrs. Miller as well as Harper may be compelled, by execution, to refund the amount paid.

But exception is taken to the execution on another ground. It is said, that the costs paid to the plaintiff by a joint trespasser, or even by his surety in a bond on a writ of error conditioned for their payment, is a satisfaction; and a sale of a judgment for them to such hail, furnishes no additional means for him to make them f<|rm a co-defendant with his principal in the recognisance; and more especially so, when that principal is shown by the record to have been the real defendant in the action in which they are received. The court are of the opinion, that even if the recognisance was paid by Eckles, he had no right to be substituted in the room of the plaintiff in the ejectment, or to have the judgment marked for his use, so as to select which of the defendants he pleases to make the costs from. We do not perceive the force of the remark, that Mrs. Miller was not the principal in the ejectment ; for admitting she was not, nevertheless, she is answerable to the plaintiff as a co-defendant for the costs which follow the judgment. Nor do we think it of any moment whatever, that the original action was trespass in ejectment; for where judgment is rendered, whether the action be tort or contract matters not. In either case it is assignable, either to a third person or to a surety in the writ of error. It is not a case of substitution, but a transfer of the judgment for a valuable consideration, wMch there is nothing to prevent. We therefore see nothing exceptionable in taking an assignment of the judgment by the bail, and proceeding to coerce payment by execution, as in ordinary cases. They were compelled to pay, and had a perfect right to take a transfer of the judgment, as an indemnity. This view of the case would hardly admit of doubt, were we not unconsciously swayed by the supposition of what there is no adequate proof, that the execution was the result of a contrivance between Harper and Eckles to throw the costs on Mrs. Miller. If that had been proved, we agree the action of the court in setting aside the execution would be proper.

The order of the court, making the rule absolute to quash the attachment and' set aside the execution, is “ reversed,