F. S. 470.) These and many other instances entertain no doubt. By analogy with civil prothat might be multiplied to an indefinite ex- ceedings, it affords a defendant all the time needed tent, show that the Legislature may lawfully ex- to take his writ. He can as readily issue it within ercise its powers for the proper regulation of twenty days as within twenty months. And if even constitutional rights. The Constitution is for any sufficient reason the twenty days have to some extent a declaration of rights. It been allowed to pass, any one of the justices of neither enforces itself nor the privileges which this Court has the power to allow the writ. It it guarantees. It is the duty of the Legislature would be his clear duty to do so, if the case preto enforce its mandates, and to see that every sented any merits. We are of opinion that the citizen enjoys or has the opportunity of enjoy- Act is constitutional. Nor is it open to criticism ing the immunities which it confers. But in upon other grounds. It denies no man's right. providing for the enjoyment of the individual It imposes no hardship upon any defendant. rights regard must be had to the welfare of the That it requires writs of error in capital cases to

whole body of the people. A writ of error is a legal remedy, nothing more. Without legislation to carry it into effect, the constitutional provision in question would amount to nothing. It

be taken out with reasonable promptness contravenes no rule of public policy or constitutional law. We have no doubt this writ of error was taken out in entire good faith. The question of the

was said in Kenyon v. Stewart (8 Wright, 179), constitutionality of the Act of 1877 was a ques

that " it cannot be doubted that it is as much the right of the Legislature to restrict and limit legal remedies as it is their duty to furnish them." This right is older than any of our Constitutions, or even the common law.

The Constitution of the State of Wisconsin contains a provision that "writs of error shall never be prohibited by law." It was held in Smith v. Packard (12 Wis. 371), that an Act of that State passed fifteen months after the date of the plaintiff's judgment, and which reduced the time within which a writ of error should issue to two years from the date of the judgment, was constitutional. In Lombard v. Cowham (34 Wis. 300), it was held that an Act requiring the party suing out the writ to give bond was constitutional; that the Constitution does not intend to prevent the Legislature from providing by reasonable laws for the protection of defendants in error.

tion fit to be raised, and the learned counsel for the prisoner were justified in raising it. But that question having now been settled, we think it but right to say hereafter a writ of error sued out in a capital case more than twenty days from sentence, and without a special allocatur, would be a direct violation of law and an abuse of the process of this Court.

We have examined the merits of this case with care, and with a disposition in favorem vitæ to allow the writ nunc pro tunc if the record presented a question of even reasonable doubt. But it does not. The case was tried with marked accuracy and care by the learned Judge of the Court below, and there is nothing to justify our interference.

The writ of error is quashed: and it is ordered that the record be remitted to the Court below for the purpose of execution.

Opinion by PAXSON, J.

[Sentence of death was subsequently commuted by the Governor to imprisonment for life.]

The Constitution contains no provision prohibiting the Legislature from regulating the manner or the time within which writs of error shall issue in cases of felonious homicide. On the contrary, it is expressly provided by Article V. Section 3, that the Supreme Court "shall have July '76, 51. appellate jurisdiction by appeal, certiorari, or writ of error in all cases as is now or may hereafter be provided by law." The right to legislate is clearly implied from this language. In the case in hand the Constitution gives the right to the writ, but it is for the Legislature to provide for the issuing it.

This is within the general scope of the authority of the Legislature as the sovereign law-making power of the State, it existed prior to the adoption of the Constitution, and nothing short of absolute prohibition in that instrument can take it away.

The Act of 1877 is a statute of limitation so far as it fixes a limit to the time within which a writ of error may issue of course. Is the limitation as to the time reasonable? Of this we

Feb. 14, 1879.

Hunsecker et al. v. Thomas et al.

Scire facias on mortgage-Death of mortgagor after judgment and before execution Scire facias to personal representatives-Act of Feb. 24, 1834, §33-Practice.

Where judgment has been obtained on a mortgage after service on the mortgagor, and the mortgagor subsequently dies, it is not necessary to issue a writ of scire facias to warn his personal representatives before proceeding to execution.

Taylor v. Young (21 Sm. 81) followed.

Error to the Common Pleas No. 4, of Philadelphia County.

Ejectment, by Peter Hunsecker et al., heirsat-law of Wm. C. Hunsecker, deceased, against

On March 21, 1874, Wm. C. Hunsecker died intestate, and on March 25, 1874, without the July, '78, 75. issuing of a writ of scire facias to warn the personal representatives of Wm. C. Hunsecker, an

alias levari facias was issued by Thomas on his Affidavit of defence law-Sufficiency of copyW. Van Dyke.

A rule for judgment for want of a sufficient | from a sheriff's sale of the real estate of one J. affidavit of defence was discharged by the Court, whereupon the plaintiff took this writ, assigning for error the action of the Court.

F. Carroll Brewster (Francis E. Brewster with him), for plaintiff in error. The affidavit does not aver that the defendant has a defence, and it is therefore insufficient. Walker v. Geisse, 4 Wh. 252.

John G. Johnson, for defendant in error.

When a person sues upon a note given to the order of another, he must make out a prima facie

title thereto.

Bolles v. Stearnes, II Cush. 320.
Reamer v. Bell, 29 Sm. 292.

February 3, 1879. THE COURT. This is an action on a promissory note, indorsed, against the maker. The payee was the wife of the plaintiff, and the indorsement was not in the name of the payee, Susanna P. Prahl, but "Mrs. Prahl."

Such an indorsement was clearly an irregularity, and required evidence before the jury that the Mrs. Prahl whose name was on the note was Susanna P. Prahl, the payee.

We think the Court below was right in refusing judgment and sending the case to a jury.

Writ of error dismissed at the costs of the plaintiff, and procedendo awarded. PER CURIAM.

Jan. '79, 4.

The judgments against Van Dyke were in the following order :

No. 1. James Van Dyke, entered May 24, 1873.
Nos. 2, 3, and 4. B. W. Lane, all entered Sept. 9,
1876.

No. 5. C. W. Van Dyke, entered Aug. 18, 1877.
No. 6. Burke & Thomas, entered Aug. 24, 1877.

The auditor found that on August, 16, 1877, James Van Dyke issued a fi. fa. upon his judgment (No. 1), under which a levy was made upon the personal property of the defendant. That upon August 24 (the day they obtained judgment No. 6) Burke, Thomas & Co. issued a fi. fa., under which a levy was made upon the same property as that which was bound by the levy under the former fi. fa., and that on the following day Lane issued a fi. fa. upon his judgment (No. 2), and a similar levy was made. That on August 25, before the Lane execution came into the hands of une sheriff, Burke,

Thomas & Co. procured an assignment of the

Van Dyke judgment (No. 1), and directed the
levy discharged and the writ returned. That
under the levies which remained a sale took
place, and the judgment of Burke, Thomas &
Co. (No. 6) was entirely satisfied, and a small
sum paid to Lane on account of his judgment
(No. 2). That subsequently Lane issued a fi.
fa. against the real estate, and the same was sold,
he being the purchaser. The fund realized from

March 12, 1879. this sale, so far as necessary, was claimed by
Burke, Thomas & Co., as assignees of the James
Van Dyke judgment (No. 1), and by Lane upon
his three judgments (Nos. 2, 3, and 4).

Burke, Thomas & Co.'s Appeal. Debtor and creditor-Priority of liens-Rights of judgment creditors inter sese-Doctrine of "Vigilantibus non dormientibus," etc. - Execution Effect of staying fi. fa.

A senior judgment creditor who issues a fi. fa., and levies it upon personal property, does not thereby satisfy his debt nor postpone his lien upon the debtor's land to that of junior judgment creditors.

When an execution creditor whose levy was the second lien upon the personal property of the debtor, but whose judgment was the sixth in the order of entry, purchased the senior judgment and ordered the levy thereunder to be discharged, whereby his levy became the first lien and his judgment was wholly satisfied:

Held, that this action was only a fair and vigilant use of means of collection of his debt, and that the lien of the senior judgment upon the debtor's land was not thereby postponed; the real estate having been sold by the sheriff, he, as assignee of said judgment, was entitled, as against the intervening judgment creditors, to the fund arising from the sale.

Hunt v. Breading, 12 S. & R. 37, explained and distinguished.

It was claimed on behalf of Lane, first, that the lien of the Van Dyke judgment was discharged from the real estate by the levy upon the personal property to the amount of the value of the same; and secondly, that the action of Burke, Thomas & Co. in procuring the assignment of the Van Dyke judgment, and ordering a discharge of the levy upon the goods in order to make their execution upon a junior judgment the first lien, was an effort to procure an advantage over intervening lien creditors, which the law would not allow.

The auditor, after stating that there was no evidence of fraud or collusion on the part of Burke, Thomas & Co., found, as matter of law, that when a younger judgment creditor sought to collect his judgment by a manipulation of the earlier judgment, and divert the levy of the fi. fa. on it to the payment of his posterior judgment lien, it was a fraud on the intermediate lien creditors, and cannot be justified under the plea of business diligence; it was more than that;

Appeal from a decree of the Court of Com- it was an attempt to circumvent intermediate mon Pleas of Bradford County confirming the liens in a manner that the law does not recogreport of an auditor distributing a fund arising | nize, but positively forbids.

The fund was therefore awarded to Lane upon The question is, whether the owner of two his judgments Nos. 2, 3, and 4. Exceptions judgments, one the first and the other the last were filed by Burke, Thomas & Co., which were lien, with writs and levy of personal property on dismissed by the Court (MORROW, P. J.), where- both, the property remaining in possession of the upon they took this appeal, assigning for error the action of the Court.

Williams and Angle, for appellants. That a levy on personal property is not a satisfaction of the judgment pro tanto is most clearly established by a long line of decisions. Cummins's Appeal, 9 W. & S. 73. Morrison v. Hoffman, I Barr, 13. Taylor's Appeal, Ibid. 390.

Campbell's Appeal, 8 Casey, 88.

After a levy on personal property the execution creditor who has caused the levy may withdraw the execution and discharge the levy without discharging the lien of his judgment on the land.

Cathcart's Appeal, I Harris, 416.

McLaughlin v. McLaughlin, 4 Norris, 317.

The auditor and the Court below misapprehended the effects of Hunt v. Breading (12 S. & R. 37); that was clearly a case of collusion, and it was ruled upon that ground.

J. McPherson, for appellee.

One who has levied on the goods of his debtor will not afterward be suffered to divert the levy to the payment of a posterior judgment in

detriment of intermediate liens. Cathcart's Appeal, I H. 416.

Hunt v. Breading, 12 S. & R. 37.

Any act done by an execution creditor which operates to the prejudice of subsequent creditors postpones his lien on the land.

Cummins's Appeal, 9 W. & S. 74.

March 24, 1879. THE COURT. James Van Dyke and B. W. Lane held judgments against J. W. Van Dyke, Lane's being the posterior liens. On the 16th August, 1877, James Van Dyke issued execution, by virtue of which the sheriff levied on the defendant's personal property, and

defendant, may stay the first and release its levy, and secure the last, without postponement of so much of the first judgment as is realized upon the second to an intermediate lien creditor. It is said that Hunt v. Breading (12 S. & R. 37) and Dean v. Patton (13 Ibid. 341) rule in favor of postponement. The keynote of the opinions in these cases is that a levy of goods is a satisfaction of the debt to the extent of their value. In the former, after stating the facts, GIBSON, J., says: " It is unnecessary to consider the effect of the rule in equity which compels a creditor who has a security on two funds to take his satisfaction out of a particular one of them, in favor of a creditor who has a security exclusively on the other, as I am satisfied on principles of law, that a judgment creditor who has seized the goods of his debtor in execution, cannot discharge them and leave his judgment in force as to the land." He next considers the " particular circumstances in the case stated which render it a peculiar one," and adds "that such an arrangement would be fraudulent in contemplation of law, I am very much inclined to believe. But the cause is clearly with the defendant on another ground. Seizing goods in execution to the value of the debt is a discharge of all responsibility on the part of the debtor, and consequently a discharge of the judgment, whether the goods be sold or not," and concludes thus: "Here the sheriff returned that he had levied and left the goods in the possession of the debtor, and the judgment must therefore be treated as having been at one time actually satisfied. Consequently its lien on the land is gone." He does not pronounce the arrangement fraudulent, though inclined to think it was, nor base his conclusion on any rule in equity, in reference to

...

advertised it to be sold on the 29th of same postponement or election of a fund, but puts the month. Burke, Thomas & Co., on the 24th decision on satisfaction of the debt by reason of August, obtained judgment against J. W. Van the levy of goods, and upon nothing else. In Dyke for $220.21, and issued execution, upon Dean v. Patton (13 S. & R. 341), DUNCAN, J., which the defendant's goods were sold, on the with like directness, points to the foundation of 14th of the following month, for $268.80. The the judgment, namely, that Canan, having two sheriff applied $238.28 in satisfaction of their judgments against Clarke, on which writs of fieri writ, and paid the balance to Lane on an execu- facias had been issued and returned with levy tion he had issued the 25th of August. The day of goods, and venditioni exponas issued on both, after Burke, Thomas & Co. had obtained judg- and sale of the goods on both, could not, with ment and issued execution, they purchased James Clarke's consent, authorize the sheriff to apply Van Dyke's judgment, and ordered the writ re- the proceeds on the second so as to preserve the turned and levy discharged, for the purpose of lien of the first against an intermediate mortgage. securing their junior lien. Upon these facts, in It was argued for Canan that the goods sold were distribution of proceeds of sale of J. W. Van not the goods levied on by the first execution, Dyke's real estate, the sum of $220.21 of the and to that it was answered it was not proved, James Van Dyke judgment was postponed for the benefit of Lane, and this act is assigned for

and if it were it would be equally fatal to his claim for the reason that "by seizure of the

goods the debt was discharged as far as the value." The basis of that decision was satisfaction by actual levy and sale of goods on the first judgment, and the dictum that a debt at law is satisfied by the levy.

So much of the decree as postpones the sum of $220.21, and interest thereon from Sept. 14, 1877, of judgment No. 270, September Term, 1873, now for use of Burke, Thomas & Co., is reversed, and it is now considered and adjudged that the full amount of said judgment and its interest be allowed, and distribution be corrected accordingly. Costs to be paid by appellees Opinion by TRUNKEY, J

Common Pleas-Law.

It would be interesting to trace the transition from the rule recognized in Hunt v. Breading (supra) to the one now settled in this State, to wit: If an older judgment creditor sues out a ff. fa. and levies it upon personal property, these acts alone neither pay his debt nor postpone his lien upon the debtor's land to that of a junior judgment. He may leave the goods levied upon in the debtor's hands; he may release his levy and abandon his fi. fa. without affecting his right as an older lien creditor to claim the proceeds of sale of the debtor's land. (Campbell, Boudin & Co.'s Appeal, 8 Casey, 88, and cases there cited.) The dicta, found in a number of cases resting on Hunt v. Breading, would not stand on the present rule, yet it is as true now as then that, as between distributees, what does not amount to a satisfac- C. P. No. 2. tion of the debt as between debtor and creditor may postpone a prior lien creditor to a junior one. But postponement must be on other ground than satisfaction of the debt by a mere levy of goods. Where the goods have been left in the continued possession of the debtor and he has been permitted to use them as his own, and he has lost nothing by the seizure, the levy is no satisfaction of the judgment.

The goods were not taken from the defendant on the James Van Dyke execution. He lost nothing by the levy on that writ, and the plaintiff realized nothing. James Van Dyke, had he not sold his judgment, could have stayed his writ and discharged the levy without danger of postponement of the lien on the real estate. He could lawfully assign the judgment to Burke, Thomas & Co., junior creditors, and they had a right to do with it what he could have rightfully done. Burke, Thomas & Co. violated no rule of ethics in the fair and vigilant use of means for collection of their debt, and the obtaining judgment and immediate issue of a fieri facias present no appearance of wrong. Lane could have issued his execution as well before as after, and his delay is no especial merit requiring compensation for what he lost by it. There is neither proof nor cause for pretence that he was circumvented. No artifice delayed him in issuing his writ. The auditor does not find that Burke, Thomas & Co. practised deceit or collusion, and he returns no evidence that they did. Must they forbear the use of legal process in tenderness to an intermediate sleeping lien creditor? The law does not forbid her remedies to one seeking to collect his due, but rather sanctions their use by aiding the wakeful creditor who commits no fraud.

Feb. 15, 1879.

Green et al. v. Kenney.
Foreign attachment-Replevin.

Sur rule to modify an order of Court granted to allow sheriff to sell property taken on foreign attachments, so as to except certain goods specified in a writ of replevin issued out of the U. S. Circuit Court.

A large number of bales of wool had been seized by various creditors of one Kenney in five suits of foreign attachment; by consent of all the attaching creditors an order was granted by the Court January 11, 1879, giving authority to the sheriff to sell all the wool because of its perishable nature. Before the sheriff made the sale a writ of replevin was issued out of the United States Circuit Court against part of the wool particularly described by marks, directed to Kenney, the defendant, in the previously issued attachments, and against E. A. Green, the sheriff's storekeeper, and was returned unexecuted. Whereupon the sheriff took this rule for his own protection.

Winship, for the rule.

J. G. Johnson, for the plaintiff in the replevin. There is nothing to prevent an owner issuing replevin for goods seized by foreign attachment. Harlan v. Harlan, 3 Harris, 507.

[HARE, P. J. The order of the Court to turn the goods into money does not settle the ownership; it simply turns them into money for the benefit of all the world.]

If this order of sale is executed my client will be forced into this forum to assert his rights. [HARE, P. J. The case of Taylor v. Carryl, 12 Harris, 259, was like this.] Rule absolute.