Dougherty's Estate

The opinion of the Court was delivered by

The arrears of ground-rent due to the heirs of William Porter were properly allowed to be taken out of the fund in the first instance. Banlleon v. Smith has never been shaken as a precedent, but more than once affirmed. Nor does a reservation of rent in a conveyance in fee stand on the foot of a reservation in a lease, which has no other preference than is given to it by the Act of 1772. That Act allows the landlord to come in for a year’s rent before execution creditors, and it is consequently an enabling one; but it would be the reverse were it applied to a ground-rent landlord, who is preferred even to judgment creditors. A lessor’s preference regards the proceeds of chattels; a ground-rent landlord’s regards the proceeds of land; the one is limited to the rent of a single year; the other extends to all the arrears without stint.

The exceptions to Leekey’s judgment are multifarious.

It is alleged that no scire facias to revive it lay in the Common Pleas after the original jurisdiction of that court was transferred to the District Court. The writ was a scire facias on the Stat. West. 2; and as it was pending in the Common Pleas when the Act to transfer “ all suits and causes pending” in that court went into effect, it is argued that, being a pending suit, it was removed to the District Court in contemplation of law; consequently that the Common Pleas had no jurisdiction to proceed on it. If that be so, the original judgment has lost its lien. But though a scire facias is said to be so far an action that the parties to it may *195plead to issue, it is in truth no more than a judicial writ which lies only in the court where the record remains. 2 Bac. Abr. 356. In Wright v. M’Nutt, (1 T. R. 389), it is said not to be a new suit, but a continuation of the old one; in Phillips v. Brown, (6 T. R. 282), that it is a step towards execution; and in Dixon v. Heslop, (Ibid. 366), that it is merely the handmaid of the original cause. Where an execution would be out of time, a scire facias, being the precursor of it, is necessarily in the same court; for it would be strange if the execution was awarded by the one court and issued by the other; or if the Court of Common Pleas was at liberty to execute its own judgments within the year and a day, but necessitated to send them to the District Court for execution at a later period. If the judgment remains in the Common Pleas, a step preparatory to execution of it, taken in another court, would be an incongruity which ought, where it may, to be avoided. It is doubtless true that our judgment on a scire facias post annum et diem, is not, as in England, a bare award of execution ; but that it is itself a judgment quod recuperet on which the execution commonly issues as on an original one; still an accidental difference of practices ought not to be allowed to change the nature of the process. If the Common Pleas had power to execute its judgments in any case, it must have had all the ancillary powers necessary to the exercise of it in every case; for it would be strange if that court might have tried an issue on a scire facias sued out after the Act which constituted the District Court had gone into effect, and yet could not have tried such an issue if the writ had been sued out before it. The true interpretation of the statute is that it removed causes pending on original process; not those that had been proceeded in to judgment.

It is objected, also, that the scire facias did not accurately recite the judgment to be revived; and it is certain that a substantial variance in that matter would break the continuity of the lien. The judgment was for $4000, the penalty of a bond with condition to secure a note for $1590, and another for $400; and the award of execution was for $2000. Thus the record was described as what it actually, though not technically, was—a judgment for the real, not the nominal debt; so that the variance, though formal, was unsubstantial. The framing of our writs is injudiciously left to the prothonotaries, who have seldom any knowledge of forms; and all that we can do in these matters without injustice to suitors, is to hold fast to substance. In Arrison v. The Commonwealth, (1 Watts 374), the name of a different plaintiff was introduced, and the variance was necessarily held to be substantial; in the case before us, the judgment is in substance wThat it was recited to be.

It is further objected that the writ was not in the form prescribed by the Act of 1798; and that the judgment on it was that the plaintiff should have execution for the sum recovered; not *196that the lien should be continued, according to the exigence of that statute. To say nothing of the principle which precludes a creditor from taking advantage of an irregularity in an antagonist lien, it is enough for the latter part of the objection that the continuance of the lien is an incident of the judgment. The writ is a scire facias quare executio non; and, as the judgment is general, it is to be taken for the appropriate one. Now, though there is no reported decision directly on the point, we have always allowed to a judgment of revival the effect of a judgment to continue the lien; as may be seen in Pennock v. Hart, (8 Serg. & Rawle 369). It is notorious, that by reason of the slowness of the profession to leave a beaten track, no alteration was made for a long time in the form of the process and judgment, and that any alteration was made at all, is perhaps owing to what fell from me in that case. For twenty years the attention of the profession had not been drawn to it, and judgments continued to be revived in the old way, so that to doubt the efficacy of the practice now would produce a scene of wild and strange confusion. If ever there was a practice to which the maxim of communis error should be applied with conclusive force, it is this. The statute is only directory as to the form; and at the end of half a century we are not going to overwhelm the holders of titles in dismay, by overturning all that has been informally done under it, when there is not even a precedent the other way. No more was determined in Gasche v. Fetterman, (3 Watts & Serg. 351), than that a plaintiff who proceeds by scire facias quare executio non, before he has a right to execution at all, shall not elude his want of a case by turning his writ into a scire facias to continue the lien, and have judgment for that, when he could not have an award of execution. That was a question of error, however—not of lien—for had the judgment been allowed to stand, there is no doubt that the error would not have deprived it of its effect as a judgment to continue the lien, and that a stranger could not have taken advantage of it.

The objection to Bailly’s judgment is unfounded ; not because the matter had been twice examined, but because it is not pretended that the judgment was collusive. The application of the administratrix was to open it on the ground that the intestate had been overreached; and the application of the creditors to vacate it was founded on no principle whatever. With the application of the administratrix the creditors had nothing to do; but if the judgment were collusive, they might abate it collaterally; and though they have sometimes been allowed to intervene directly, such a practice is irregular. Where a collusive judgment comes into collision with their interests, they may avoid the effect of it by showing it to be a nullity as to themselves; and in doing so, they do not impair its obligation between the original parties, upon whom it is undoubtedly binding, a fraudulent judgment, like a fraudulent deed, being good against all but the interests intend*197ed to be defrauded by it. But they cannot call upon the court to vacate it on the record, which would annul it as to the whole world. It is contended, however, that the judgment is fraudulent, because he who confessed it was defrauded. A surreptitious judgment, however, is fraudulent only as to the immediate parties; not by the 13 Eliz. against creditors, who certainly cannot go behind it to try over again a defence which their debtor had made, or was competent to make. There was no pretence that this judgment was collusive; and as the appellant had not laid a ground for an issue, it would have been irregular to award it.

Decree affirmed.