(Fisher v. Taylor and others.)

and would thus set up a new will in place of that which it affected to interpret.

The intention of the testator ascertained, the only question is, whether his disposition is contrary to law. A man may, undoubtedly, so dispose of his land as to secure to the object of his bounty, and to him exclusively, the annual profits. The mode in which he accomplishes such a purpose, is by creating a trust estate, explicitly designating the uses, and defining the powers of the trustees. All this, we think, has been sufficiently effected in the case under consideration. Nor is such a provision contrary to the policy of the law, or to any act of assembly. Creditors cannot complain, because they are bound to know the foundation upon which they extend their credit. The act of assembly, cited from 1 Smith's Laws, 7, does not apply, the land in question not being the land of Sample Taylor, the defendant. He has no life estate in it, nor any interest which is subject to be sold for the payment of his debts. The benefit he derives under the will of his father, is merely the right of receiving from the trustees, the rents and profits of the premises, which they hold under the deed from John Graham and wife; to the perception of those rents and profits, they are in the first place entitled, for the purpose of fulfilling their trust.

We are of opinion, that the judgment of the Court of Common Pleas, was correct, and ought to be affirmed.

TOD, J., dissented.

Judgment affirmed.

[SUNBURY, JULY 3, 1829.]

Case of BOAL'S Appeal.

APPEAL.

An appeal to the Supreme Court, under the act of assembly of the 16th of April, 1827, relative to the distribution of money arising from sheriffs' and coroners' sales, should be in the name of the party, or parties aggrieved; and, the recognisance should be taken, in such sum as the Court of Common Pleas may deem necessary, to the commonwealth, or some individual for the use of the parties interested.

A written acknowledgment, of record, by the defendant, that a judgment is in full force, is as effectual to keep it alive, as a Scire Facias.

For the purpose of keeping a judgment alive by execution, it is immaterial whether the execution be issued before or after a year and a day from the entry of the judgment.

A writ of restitution on the reversal of an erroneous judgment, creates a lien on goods from the time it goes into the sheriff's hands, and on lands, from the time of the levy.

APPEAL from the order of distribution of the proceeds of the sale of the real estate of James Boal, by the Court of Common Pleas of Lycoming county.

(Case of Boal's Appeal.)

A sale of the real estate of James Boal having been made under a judgment, obtained against him in the Court of Common Pleas of Lycoming county, the money was brought into court, and the distribution of it among the creditors having liens upon the land sold, having, after much contest, been decided by the court, an appeal to the Supreme Court, was entered under the act of assembly of the 16th of April, 1827.

To report all the different claims made in the court below, and the decision upon each, would be unnecessary. It is sufficient to state the points considered in the Supreme Court, which were:1. In what manner the recognisance on the appeal should be taken.

2. Whether the award of restitution on the reversal of a judgment of an inferior court, be in itself a binding judgment, and if it be, from what time?

3. Whether a written acknowledgment, by the defendant in a judgment, that it is in full force, entered on the docket of the court, be sufficient to keep the judgment alive, without a Scire Facias?

4. Whether the lien of a judgment is continued without a Scire Facias, by issuing an execution after the expiration of a year and a day.

After argument by Anthony, Armstrong, Lewis, and Bellas, in support of the interests of their respective clients, the opinion of the court was delivered by

ROGERS, J.-The estate of James Boal having been sold by the sheriff, and an order made for the distribution of the proceeds among the creditors, by the Court of Common Pleas of Lycoming county, an appeal has been taken, under the third section of the act of the 16th April, 1827, which gives liberty to any person who may consider himself aggrieved, &c. to appeal to the Supreme Court, within twenty days, subject to the same rules and regulations, as appeals made from the decision of the Orphans' Court. The appeal is made from the order of distribution, so that we cannot perceive any necessity for more than one appeal, which vests the jurisdiction in the Supreme Court, to inquire into the whole matter, and distribute the money according to law. And this can be attended with no danger, and but little inconvenience, as all the persons interested are either present in the Court of Common Pleas, or have an opportunity of being so, as it is the duty of the court to cause notice to be given, either personally, or by such advertisements as they may deem proper, prior to making their decision. Besides, the Supreme Court will take such order, on a proper application, as to prevent the rights of persons being affected, who have no opportunity of being heard. The opinion of the court has been required, as to the form of the appeal. We are of opinion, that it should be in the name of the party, or parties aggrieved, and that the recognisance should be taken in such sum as the Court of Common Pleas may deem necessary, and to the commonwealth, or

(Case of Boal's Appeal.)

some individual, for the use of the parties interested. The recognisance was taken in the name of James Boal, the defendant, and we will intend, that it is for the benefit of those who may be aggrieved by the appeal.

The order of distribution involves several questions, which, when settled, removes all difficulty in the distribution of money raised by the sheriff's sale.

We agree with the Court of Common Pleas, that the entries on the docket, by James Boal, continued the lien of Williams's judgment, and this is on the authority of a case decided in Philadelphia, and not yet reported.

Although the Fieri Facias in Brown's judgment did not issue until after a year and a day, it is not distinguishable in principle from Taylor v. Young, 2 Bina. 228. In that case, it was decided, that an execution within a year and a day, continues the lien of a judgment, without resorting to a Scire Facias, under the act of assembly of the 4th of April, 1798. And the reason given by Justice YEATES is, that the Scire Facias operates as notice to the parties interested, and evidences the intention of the creditor to claim the lien of his judgment: That the taking out a Fieri Facias, levying on the goods and lands of the defendant, and condemning the lands by an inquest, are matters of notoriety; and, in point of notice of the creditor's pretensions, tantamount to a Scire Facias. The distinction between an execution issued before, and after the year and a day, is too nice for ordinary comprehension; and, in practice, it has been considered as making no difference. To decide otherwise, would endanger many honest claims. This point has lost most of its importance by the act of assembly of the 26th of March, 1827, passed to remedy what some consider a misconstruction of the act of assembly of 1794. That act is prospective, and confirms, rather than invalidates the uniform practice which has obtained, since the case of Taylor v. Young.

The next question is, whether a writ of restitution be a lien, and from what time. A judgment of reversal, is a judgment of the Supreme Court; and the practice is, to remit the record to the Court of Common Pleas, in order to have the judgment carried into effect. Russel v. Gray, 6 Serg. & Rawle, 208. Duncan v. Kirkpatrick et al. 13 Serg. & Rawle, 292. The difficulty is, not whether it be a judgment, but whether it be a lien, and from what time it commences. After a most diligent search, I find but little in the books calculated to throw light on the question, nor have the researches of counsel been more successful. We do not consider the lien as commencing from the time of reversal, from the danger and almost certainty of affecting the rights of bona fide purchasers, without notice. This would be an unreasonable effect of the judgment of reversal. It is not pretended, it would bind lands through the whole district, or in the county where the Supreme Court held its session, but in the county from whence the judgment came, and to

(Case of Boal's Appeal.)

which, for execution, it must be remitted, and this would expose it to the objection which I have mentioned. It is the opinion of the majority of the court, that as the writ of restitution is strictly an execution, it comes within the same rules as other executions; and, that the lien commences on the goods from the time the writ goes into the hands of the sheriff; and, on the lands, from the time of the levy, &c. My opinion is, and in this, I believe, I speak the sentiments of Judge ToD, that the lien commences from the time of the remittance of the record, and docketing it in the county from which it was removed. To avoid misapprehension, we would wish to be understood, as not extending this decision beyond the special facts of this part of the case.

h 26 SC 286 A county treasurer's account, settled under the provisions of the act of assem

2 R 40 30 SC 3124

bly of the 30th of March, 1791, may be altered by the auditors, at any time before it is returned to the Court of Common Pleas

A treasurer of a county is not entitled to compensation for travelling out of the county to collect taxes on unseated lands.

If the auditors proceed to settle the account without giving notice to the treasurer, and their report be filed, no appeal entered, and an execution issued, the court, on application, will set the report aside; but, if the treasurer enter an appeal, and the whole matter is taken up anew in the court, the defect is cured.

ERROR to the Court of Common Pleas of Lycoming county.

Matthew Brown, the plaintiff in error, had been the treasurer of Lycoming county, and on the termination of his office, his accounts were submitted for settlement to auditors, under the act of assembly of the 30th of March, 1791. From their decision he appealed to the Court of Common Pleas; and, on the trial, on the 8th of September, 1827, the jury found a verdict in favour of the commonwealth, for the sum of three hundred and eighty-two dollars and forty-two and a half cents.

Several bills of exceptions, as well to the admission of evidence, as to the charge of the Court of Common Pleas, were taken and argued in this court, by Anthony, for the plaintiff in error, and by Armstrong, for the defendant in error.

The opinion of the court, which embraces all that is material in the case, was delivered by

HUSTON, J.-By the act of assembly of the 30th of March, 1791, auditors were to be appointed amicably to settle the accounts of

(Brown v. The Commonwealth.)

treasurers, commissioners, &c. of the county; and, although the auditors are now, by a subsequent law, to be elected, the other provisions of the act of assembly of 1791, are in force; at least, such of them as are material in this case.

Section fifth provides: "That the said auditors having examined and settled the said accounts, to the best of their skill and ability, shall report the same with the respective balances due, to, or from such commissioners or treasurer, to the next County Court of Common Pleas for such county, who shall thereupon cause such report and settlement to be filed among the records of said court: and such report, from the time of being so filed, shall have the effect of a judgment, on the lands, tenements, and hereditaments of such commissioners or treasurer, who shall thereby appear to be indebted: and, if within sixty days after such report, made and filed, the said commissioners or treasurer, their executors, or administrators, or any of them, shall enter their appeal in the said court, from the said settlement, or any part thereof, it shall be lawful for the court to direct an issue, wherein the commonwealth shall be made plaintiff or defendant, as the case may require, to be tried by a jury during the next term, upon whose verdict, final judgment shall be entered." It then goes on to prescribe the bail to be entered by the party appealing.

Matthew Brown was treasurer of Lycoming county, in the year 1826; and an account, finding him indebted to the county, was settled by the auditors on the 31st of January, 1827, and this report given to the Court of Common Pleas, who ordered the same to be filed. By this report, Mr. Brown was found indebted to the county two hundred and thirty-three dollars. He appealed in due form; and, on the trial of the issue, several points arose, which are the subjects of this writ of error. After the jury were sworn, the plaintiff's counsel offered to read and show to the jury, the account of Matthew Brown, treasurer, &c., as filed in the office of the prothonotary, according to law. This was objected to; and the court admitted the report of the auditors, order of court to file, &c. and the appeal, to show what were the report and proceedings till this time, but not to establish any one item charged in the said report against the treasurer. This formed the subject of the first bill of exceptions, but was not insisted on here, and ought never to have been taken. In those proceedings specially prescribed by act of assembly, and not commenced in the ordinary course of law, it is right that the nature of the dispute, the manner in which it came before the jury, and what is before the jury, should be understood by them; and, with the limitation prescribed by the court, nothing would so clearly and satisfactorily show this as the course taken. The plaintiff then offered to adduce evidence, to prove the items of which the debit side of the account was composed. This was objected to on the following ground, and this was the only matter on which this court were seriously called on to decide:-The auditors