execution on said fi. fa." upon petition

Superior Court.

Peoples Trust Co. v. Hymon Ehrhart,

Appellant.

Possessory proceedings-Judgment of justice-Scire facias-Appeal-Execution-Jurisdiction of C. P.-Acts of June 16, 1836, P. L., 755, and April 20, 1905, P. L., 239.

A f. fa. may be issued on a judgment entered in common pleas on an appeal from the judgment of a justice of the peace entered on sci. fa. to revive a judgment for damages and costs in proceedings to obtain possession of land purchased at a sheriff's sale.

A judgment is conclusive not only as to matters actually litigated and decided, but as to every ground of recovery and defense that might have been presented and decided.

The repeal of certain sections of the Act of June 16, 1836, P. L. 755, 780 by the Act of April 20, 1905, P. L. 239 will not invalidate a valid judgment previously entered before a justice under such sections and the subsequent proceedings founded thereon.

Appeal No. 129 of October Term, 1913, by defendant, from order of C. P. of Lancaster County, refusing to grant a rule to strike off a fi. fa. issued to August Term, 1913, No. 14, Ex. Doc., on a judgment to August Term, 1907, No. 30. Affirmed.

The judgment in question was entered on appeal from a judgment of a justice of the peace on a sci. fa. to revive his judgment for damages and costs in proceedings for possession of land pur

chased at a sheriff's sale.

On appeal the following errors were specified:

1. The Court below erred in making the following order: "June 4, 1913. Prayer of petition refused. A. B. HASSLER, Judge."

2. The Court below erred in refusing to make an order to " set aside the above

3. The Court below erred in not sustaining the following prayer in appellant's petition, viz.: The judgment upon which it is based is not such a judgment upon which a fi. fa. could be issued to satisfy the same.'

4. Execution cannot be properly issued upon the judgment upon the scire facias, but should be upon the original judgment.

5. The Court below erred in not setting aside the writ of fi. fa. and proceeding under the Act of June 16, 1836, as the parts of the Act under which the proceedings were repealed by the Act of April 20, 1905, and a new method of procedure enacted by the later Act.

6. The Court below erred in not setting aside the writ of fieri facias.

B. F. Davis, for appellant.

Appeal lies on the discharge of a rule to set aside an execution.

Long v. Bank, 211 Pa., 165. The judgment on the sci. fa. was the same as the original judgment.

Eldred v. Hazlett's Adm'r, 38 Pa., 16.
Freeman on Judgments, 442.

Irvin v. Nixon's Heirs, 11 Pa., 419.
Grover v. Boon, 124 Pa., 399.

If a fi. fa. can not be issued in the original, it can not upon the sci. fa. judgment.

Amos v. Stiles, I W. N. C., 414. Kern v. Coyle, 12 Phila., 227. De Long v. Hoke, 8 W. N. C., 27. Bodkin v. McDonald, 2 W. N. C., 478. The sheriff had the warrant and gave plaintiff possession thereon in pursuNow, plaintiff ance of the warrant. seeks to take the other part of the judgment into the Court of Common Pleas

and have an execution issued upon it. This, we think, they can not do.

Stetson v. Rosenberger, 19 Superior,

Hawkins v. Pittsburgh, 220 Pa., 7. Mayer v. Kirby, 14 S. & R., 162. Bodkin v. McDonald, 2 W. N. C., 478. It is never too late to attack a judgment for want of jurisdiction. Fowler v. Eddy, 110 Pa., 117. Com. v. Barnett, 191 Pa., 181. These proceedings were begun under the Act of 1836, which was repealed by the Act of 1905.

The suit under the scire facias and the notice given thereunder have been begun and given since the repeal of the Act of Assembly, therefore, the proceed ings thereunder are null and void: Hampton v. Com., 19 Pa., 329. Opin

ion 335.

In re Washington Boro., 26 Super.,

296.

"When an act of assembly is repealed all proceedings founded upon it which have not ripened into judgment, must fall."

Lawrence Co. v. New Castle, 18 Superior, 313.

Boyer's Petition, 15 Co. Co., 531. Keener v. Fouch, 16 Co. Co., 207. Ohio R. Junc. R. R. Co. v. Penna. Co., 222 Pa., 573.

Natl. Canal St. Road, 10 Watts, 352. Fenlon's Petition, 7 Pa., 173.

Hampton . Com., 19 Pa., 329. Uwehlan Twp. Road, 30 Pa., 156. Rassan v. Campbell, 236 Pa., 455. Where an inchoate right accrued under the statutes as they existed previous to the late revision, and by the revised statutes the proceedings to perfect the right are regulated and prescribed, such regulations and requirements must be pursued, or the party is remediless. The People v. Livingston, 6 Wendell, 526.

Lancaster Trust Co. v. Long, 220 Pa.,

499.

The petitioner's discharge as a bankrupt is a bar to the collection of the debt in this case.

A judgment entered after a petition is filed is discharged:

Collier on Bankruptcy, 7th Ed., p. 294. Same point:

Walker v. Muir, 21 Am. Bankruptcy Reps., 278.

The knowledge of the creditor is sufficient:

Knapp v. Harold, 11 Am. Bankruptcy Reps., 190.

Coyle & Keller, for appellee.

The present appeal is nothing more than an attempt on the part of the appellant to secure by this proceeding a reargument of the case, decided by this Court, of the Peoples Trust Company v. Ehrhart, 53 Super. Ct., 319.

It will be noticed from this opinion the defendant raised the very question that in the former appeal in this case presented in the petition to set aside the writ of execution as the principal judgment in favor of the plaintiff could reason for that action, namely; that no be entered upon the appeal to the Common Pleas from the judgment of revival entered by the justice of the peace upon the scire facias, because incident to such judgment would be the right to is sue an execution out of that court, and it was alleged that this could not be done.

It is true that by Section 19 of the Act of 1905, Sections 105 to 118, inclusive, of the Act of June 16, 1836, P. L., 755, were specifically repealed. But it is absurd to suggest that this repealing clause had any effect on a judgment regularly obtained years before under the Act of 1836, when its provisions were in full force.

The execution was properly issued on the scire facias because the "original and only "judgment was the one entered in Common Pleas.

The date of the adjudication of the defendant in bankruptcy was two months before the original judgment.

Discharge in bankruptcy "is a release from the unpaid balance of debts existing at the time the petition was filed."

Loveland on Bankruptcy, Sec. 284. In re Burka, 5 A. B. R., 12, 104 Fed. Rep., 326.

In re Marcus, 5 A. B. R., 365, 105 Fed. Rep., 907.

The discharge in bankruptcy if a defense at all should have been presented at the trial of the appeal in Common

Common Pleas from the justice's judg- | ment thereon after the passage of the act of 1905, but not in contravention of any of its provisions or by virtue of the repealed sections of the act of 1836. As pointed out in our former opinion, the jurisdiction of the justice to issue the scire facias, and the jurisdiction of the Common Pleas to entertain and decide the appeal from his judgment thereon, rests on other grounds, and these were not affected by the act of 1905.

The order is affirmed at the costs of the appellant.

Common Pleas--Law

American Engraving & Printing Co.

v. Deichler.

$596.25, upon which he admitted credits to the amount of $250, leaving a balance due of $346.25. The defendant testified that he was allowed deductions by the plaintiff on the original claim because the cards were not up to a required standard, and with payments made the claim was reduced to $100, for which he gave a promissory note, on account of which, $50 has since been paid, leaving unpaid the sum of $50. The plaintiff denies that the deductions were allowed on the original bill, and that the defendant was not entitled to any credits except for payments actually made.

The plaintiff testified that he accepted this last note, as well as others, of which it was a renewal, as payments on account. The last note, not having been paid when due, was protested. It was produced in court at the trial and identified by the defendant. (See page 13. notes of testimony.) The jury accepted the defendant's view of the transaction,

Where a creditor receives from his debtor the note of the latter an account of a debt such note is only collateral to the original indebtedness, and not as absolute payment unless by express agreement, which the debtor must prove.

Where such creditor produces the debtors

notes for a less amount than his claim and testifies that he accepted them only as payments on account, this does not constitute an express agreement to accept them as payment of the original indebtedness, and he can recover on the original indebtedness claimed in the statement.

Rule for judgment for defendant n. o. v. C. P. of Lancaster County. December Term, 1910, No. 32.

V.

with interest.

We are now asked to enter judgment for the defendant n. o. v., for the reason that the plaintiff, having testified that he had accepted the note of $100 as payment on account, he cannot recover on the original contract, which is what is set forth in his statement as his cause of action.

It is well settled in a long line of authorities that when a creditor receives from his debtor the note of the latter, or even of a third party, on account of a debt, such note is only collateral to the

original indebtedness, and it is taken, not as absolute, but as conditional payment. and that the debt will be extinguished only if the note is paid: North Penn Iron Co. v. New Jersey Bridge Co., 35 Sup., 84; United States v. Hegeman, 204 Pa., 438. To make such a note absolute payment there must be an express agreement by the creditor to receive it as such, and the burden of proving such agreement is upon the debtor: Philadelphia 7. Neill, 211 Pa., 353; Engle v. Betz, 214 Pa., 185: Mechanics National Bank v. Kielkopf, 22 Sup., 128; Hummelstown Brownstone Company v. Knerr, 25 Sup., 465. In order to maintain an action on

the original consideration, it is necessary for the creditor to have the note in his possession and produce it in Court, or explain its absence, for the reason that the note being negotiable may be in the possession of a third party, to whom the debtor might be liable to again pay the indebtedness: Hays v. McClurg, 4 Watts, 452; Small v. Jones, 8 Watts, 265; Brown v. Scott, 51 Pa., 357. See also Winters v. Mowrer, 1 Sup., 47.

In the present case the note for $100, $50 of which was not paid, was given by the defendant to the plaintiff. Nothing was said, at the time it was given, as to its being given or accepted in payment of the defendant's indebtedness to the plaintiff. No express agreement to this effect was made, nor was any attempt made by the defendant to prove one. If this were all that appeared in this case, the presumption would arise that the note was given as collateral security for the original indebtedness, and the plaintiff could maintain his action, either upon it, or upon the original indebtedness, he having produced the note at the trial where it was identified by the defendant, thus showing it was in his possession.

The plaintiff testified at the trial that he had accepted these notes as payments on account, and it is contended that this made the notes an absolute payment, thereby extinguishing the original indebtedness. We do not agree with this. In order to understand just what the plaintiff meant by accepting the notes as payment on account we must consider the whole transaction. The plaintiff's whole claim was $593. The first note was given for $450, $143 less than the plaintiff's claim. When $100 of this note was paid and renewal was given for $200, or $150 less than was due on the original note, when $100 of this note was paid a new note for $100 was given, which is now in plaintiff's possession, and which was produced at the trial. The question raised at the trial was, whether the plaintiff agreed to reduce his claim first $143, and then afterwards $150 more, because the postal cards did not measure up to an agreed standard. The defendant alleged he did agree to

this.

The plaintiff denied it, and explained the fact that the notes were for amounts which showed these deductions by saying they were only accepted on account of the claim and not in full for it. This was not proof of an express agreement that they were accepted as payment of the original indebtedness, or even of an expressed intention to so accept them. The plaintiff, could, therefore, proceed on the original cause of action, or on the note, as the original indebtedness was not extinguished.

The views are not in conflict with the case of McCord v. Durant, 134 Pa, 184, cited by the defendant, and largely depended upon by him. In that case there was an express written agreement that the notes in question were accepted as payment of all obligations arising under a contract made several years before they were given. The affidavit of the defendant, in the action on the original contract was offered as evidence of that fact, and it was considered by the Court as proof of it. Here the statement of the defendant that the notes. were accepted as payment on account was not proof of any express agreement to extinguish the original indebtedness, but was, as we have shown, stated for the purpose of explaining that deductions were not allowed on his original bill.

We are of the opinion that the plaintiff is entitled to judgment on his verdict in this case, and, therefore, discharge the rule to show cause why judgment should not be entered for the defendant n. o. v.