The opinion of the Court was delivered by

The first, fourth and fifth errors are substantially the same, and may be considered together. They involve the-merits of the case as appearing in the answers, and also the power *227of the court to render judgment against the defendants. As to the merits of the case, we think it was abundantly shown by the facts and circumstances developed in'the answers to the interrogatories, that the bill of sale from Daniel Shaffer to his son, executed on the 7th July 1842, was collusive and fraudulent in contemplation of law. It appears that it contained a secret trust to the amount of $2000, with interest, reserved for the benefit of the vendor; for though it nominally prefers Elizabeth Shaffer, his mother, yet by a separate paper of the same date, W. Shaffer binds himself to pay this sum on the death of his grandmother, Elizabeth Shaffer, to Daniel Shaffer the vendor. Nor is there any ground shown for the payment of this large sum of $2000 after the death of Elizabeth Shaffer to any person, even supposing the provision for paying the interest during the life of this aged female was a good consideration, so far, in respect to W. Shaffer. The circumstances also attending Washington Shaffer’s becoming surety for this provision, by signing the instrument of the 20th March 1841, with other facts admitted, certainly lead to the strong suspicion that the transaction was concocted for the purpose, in a great degree, if not chiefly, of securing to Daniel Shaffer this large interest in the goods transferred. A trust of this kind, whether secret or avowed, in favour of the grantor, renders the transaction fraudulent and void in legal contemplation, even though there might be mingled with it provisions in favour of preferred creditors.

The power of the court in this proceeding must depend on the enactments of the Act of Assembly of the 16th June 1836, relating to executions, which, in its sections, from the 9th to the 18th inclusive, prescribes a system of proceeding. That part of this system which connects a bill of discovery with a proceeding by foreign attachment is new7 in our practice. It is supposed by the counsel for the defendants that the plaintiff is entitled to nothing more on his bill than a discovery; that the proceeding must rest there, and he must content himself to use it for the purpose of light and guidance merely, on levying his execution. On considering the various sections of the Act, however, we are satisfied that something more was intended. It is not possible to reconcile with this narrow construction of the Act the provision that a scire, facias shall issue at the same time that the bill of discovery is filed ; that the service of this writ shall give a lien on the personal property in the hands of the defendant which may be taken in execution like goods in the hands of a garnishee in foreign attachment ; and with the provision in the 14th section that on the scire facias the defendants are to abide the judgment of the court in the premises. A view of the whole of the enactments on this subject induces us to think that the Legislature intended to make the proceedings substantially the same as in foreign attachment, with certain differences particularly mentioned, such as the em*228ployment of a bill of discovery and interrogatories, instead of mere interrogatories; and that the bill may be filed against the defendant in the judgment and the person having possession of the estate or owning, &c.; and must set forth certain grounds for the complaint specified in section 11. It would seem, also, that the proceedings in foreign attachment on a scire facias against the garnishee are to be followed in this scire facias; that the defendant may plead to it and take issue, and have any disputed fact tried by jury; and that the court may render a judgment thereon, either on the verdict of the jury or otherwise, in the same manner as in the proceeding by foreign attachment. If so, then, where there is the verdict of a jury, by the provisions of the Act of the 13th June 1836, relative to foreign attachments, sections 58 and 59, if issue be taken and a trial be had on the scire facias, the jury are to find what goods or effects, if any, were in the hands of the garnishees at the time of the attachment executed or afterwards, and also the value thereof; and after a verdict for the plaintiff he may have execution of his judgment to be levied of the goods so found, and also execution against the garnishee as if his proper debt, if he neglect to produce the goods or pay the debt. But this is the only case in which it is required that the specific goods be levied on in the first instance; and it is after issue and verdict of a jury. By section 57, where the judgment is rendered by the court for neglect or refusal to appear and answer interrogatories, it is against the garnishee and his estate for the amount of the plaintiff’s demand. No provision is made for the case that occurs where the defendants have answered interrogatories denying their liability, and, judgment is rendered upon such interrogatories by the court, without any pleading to the scire facias or trial. But by analogy to the case provided for in section 57, and from the reasonable inference that the defendants have waived the privilege given by the 58th and 59th sections, by omitting to plead to issue and submitting to the court the trial of their defence without application for a different course, and from arguments of convenience as well as the joinder of the defendants, it would seem the judgment rendered by the court on the answers to these interrogatories may in such a case as the present be like that to be rendered by the 57th section, viz: against the defendants and their estates for the amount of the plaintiff’s debt; such as seems to have been the kind of judgment entered in the case before us. There is no ground for the objection that it was entered against both defendants; for the Act of Assembly expressly authorizes the joinder of the original defendant and other persons in the scire facias, and the judgment of course may be joint; especially if the parties do not sever in their pleadings, or as here, do not plead at all.

2d, 3d, and 5th errors. If the judgment is joint, then the fieri facias ought to be joint, because execution must ensue the nature *229of the judgment. The praecipe for the fieri facias was so; but the writ itself seems not to have conformed to the praecipe, being issued against Daniel with notice to Washington. This, however, is but a clerical error, which could be amended by the praecipe, and which may be considered here as so amended. The alias fieri facias being issued to the same term is irregular, and must be set aside; but for the reasons above given we see no reason for reversing any of the other proceedings.

Alias fieri facias reversed, and the other proceedings affirmed.