Imprisonment for Debt.

The court may at any time before a final decree of distribution, upon the application of the defendant denying and disproving the allegations upon which the attachment was granted, dissolve the same absolutely, or upon such terms as it may deem equitable.

Jurisdiction to grant writs of attachment where the debt does not exceed one hundred dollars, is conferred under somewhat similar restrictions upon justices of the peace. (a)

Attachment of vessels.-Ships and vessels of all kinds, built, repaired or fitted out within the state, are subject to a lien in favor of mechanics or tradesmen, for work done or materials supplied for the building, equipping or repairing such boat, on the engagement of the master or owners, in preference to other debts. This lien continues from the time the debt is contracted, until the vessel proceeds on her next voyage. (b)

8. Imprisonment for Debt.

No person can be arrested or imprisoned on any civil process, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract, except on proceeding as for contempt, to enforce civil remedies, actions for fines or penalties, or on promises to marry, for moneys collected by any public officer, or for any misconduct or neglect in office or in any professional employment. A party may obtain a warrant of arrest in other cases, where upon application to the judge of the court in which suit has been instituted or judgment obtained, he satisfies the judge, by his own affidavit or that of some other person or persons, that there is a debt or demand due to the applicant from the other party to the suit or judgment, pointing out its nature and amount, and also establishes one or more of the following particulars:

1st. That such party is about to remove some of his property from without the jurisdiction of the court in which suit is brought, for the purpose of defrauding his creditors, or

(a) P. D. 330.

(b) Dunlop's Statutes, 677.

Imprisonment for Debt.

2d. That he has property which he fraudulently conceals, or 3d. That he has rights in action, or some interest in public or corporate stock, money or evidence of debt, which he unjustly refuses to apply to the payment of some judgment against him belonging to the complainant, or

4th. That he has assigned, removed or disposed of, or is about to dispose of, some of his property, with the intent to defraud his creditors, or

5th. That he fraudulently contracted the debt, or incurred the obligation respecting which suit is brought.

The defendant, upon being arrested, may appear before the judge and controvert the truth or sufficiency of the plaintiff's allegations, and if with success he will be discharged; otherwise he will be committed to prison, to be detained until discharged by law. The commitment will not be granted, where the defendant pays the demand; or in case it is a judgment, gives security for its payment at the time when it could be collected at law; or if the arrest has been founded on an allegation of a fraudulent design to remove his property out of the jurisdiction of the court, gives bond with approved security that he will not so remove any property which he then has, and that he will not assign, convey or dispose of any of his property with such intent, or with a view to give a preference to any creditor for any debt antecedent to such disposition, until the demand of the complainant has been satisfied, or until thirty days after final judgment shall be rendered in the suit brought for the recovery of such demand or where the defendant enters into bond with sufficient security, conditioned that he will apply within thirty days, for the benefit of the insolvent laws of the commonwealth, and comply with the requisitions of such laws, and in case of his failure to obtain his discharge as an insolvent debtor, surrender himself to the jail of the county. (a)

Any person committed, or who has given bond as above provided, may apply for the benefit of the insolvent act, upon which proceedings similar to those described in the subsequent title will be had, and an assignment executed to trustees, invested with similar powers and duties.

(a) P. D., Stroud's edition, 581.

Judgment and Execution.

9. Judgment and Execution.

Judgments only bind lands, tenements or hereditaments, as against bona fide purchasers, from the time when they are actually signed; goods and chattels from the time of the delivery of the writ to the officer. A judgment is a lien upon all the interest, legal or equitable, of the debtor, in land situated in the county where the judgment is rendered, or in a county in which a transcript of the judgment is recorded. It is not a lien, however, upon after purchased lands. (a)

The lien of a judgment does not continue beyond five years, unless revived by scire facias, or agreement of the parties, filed and docketed. (b)

Execution may issue at any time within a year and day from the rendition of a judgment, or the expiration of a stay of execution, where such is indorsed thereon. Unless taken out during this period, the judgment becomes dormant, and must be revived by scire facias. In all actions instituted for the recovery of money due by contract, or damages arising from a breach of contract, except actions of debt and scire facias upon judgments, and actions of scire facias upon mortgages, if the defendant has an estate in fee simple, within the respective county, worth, in the opinion of the court, the sum for which the plaintiff may be entitled to have execution, or if the defendant shall give approved security for the payment of such sum, with interest and costs, he shall be entitled to a stay of execution for six months if the debt does not exceed two hundred dollars, for nine months if it exceeds two hundred, and does not exceed five hundred dollars, for twelve months if the sum exceeds five hundred dollars. The plaintiff may have execution for the satisfaction of his debt against the personal and real estate of his debtor, and in some cases against his body. Coin, bank notes, current bills, stocks, money deposited in bank, debts, equities of redemption in personal property, may be seized and sold under a writ of fieri facias. Where stock, deposits or debts are levied upon, the proceedings to realize the same are similar to a garnishment in foreign attachment. Where

Administration of Estates.

real estate is taken in execution, it is the duty of the officer to summon an inquest to ascertain whether the rents and profits of such estate, beyond all reprise, will be sufficient within seven years to satisfy the judgment upon which the execution was issued, with the interest and costs of suit. If the clear profits of the real estate will, in the opinion of the inquest, be sufficient to pay the debt or damages and costs, the sheriff shall, by the inquest, assess the clear annual value of the rents and profits; and make return thereof, with his writ, to court. Upon the return of the writ, the plaintiff may have a writ of liberari facias to deliver the said real estate, with the appurtenances, to him, at the valuation fixed by the inquest, to be holden by him, his executors or assigns, until his debt, with interest, is discharged: or the plaintiff, instead of suing out the writ of liberari facias, may demise the premises to the defendant, to retain possession of the same, at the annual valuation fixed by the inquest. If the defendant decline taking the estate on such demise, the plaintiff may sell it upon a venditioni exponas: or, if the inquest return that the clear annual profits will not be sufficient to pay the debt and damages within seven years, it may be sold at once upon such writ. (a)

10. Administration of Estates.

Fund for the payment of debts.—In Pennsylvania both real and personal property are liable for the debts of a decedent, (b) but the personal estate is to be resorted to in the first instance, even for debts with which the real estate is charged; (c) except where they have been contracted by other than the decedent, as where real estate has been purchased subject to a mortgage. (d) Where, however, a testator directs payment of his debts to be made out of some particular fund, the provision must be followed,

(a) P. D. 440 to 470.

(b) Act of 24th Feb., 1834; Purdon's Dig. ed. 7th, 473–484; Graff v. Smith, 1 Dall. 481; Benner v. Phillips, 9 W. and S. 20.

(c) Keysey's Estate, 9 S. & R. 72; Todd v. Todd's Ex'rs. 1 S. & R. 953; Walker's Estate, 3 R. 237.

(d) Keysey's Est. 9 S. & R. 72.

Administration of Estates.

but the personal estate cannot be so exempted as against creditors, though it may as against heirs and devisees, where the intention is clear not merely to charge the real estate but to exempt the personal. (a) There is no distinction in these respects between legal and equitable assets; both are equally liable to both legal and equitable debts. (b) On the death of a partner, if there be no joint fund nor solvent partner remaining, both partnership and separate creditors come pari passu upon his estate. (c) It is to be presumed that as after acquired lands may pass by will, they may be charged with the payment of debts. (d)

Duration of lien of debts upon land.—Debts, except secured by mortgage or judgment, are a lien upon lands in the hands of heirs, devisees, and purchasers. This lien expires at the end of five years from the decease of the debtor, unless suit be commenced and duly prosecuted, within that period. (e) Where, however, a debt, demand, or covenant, is not payable within the five years, a written statement thereof is to be filed in the connty where the lands are situate, and then the debt, demand, or covenant, becomes a lien from five years after the time it falls due. (f)

Judgments bind the land for five years after the death, though they otherwise would have expired within that time, and they have not been revived; they take precedence according to their priority at the time of the death; and after the expiration of the five years they may be revived by scire facias, to which the widow and heirs need not be made parties. (g) Where there is, however, a direction to sell for the payment of debts, given to the executor, it does not come within the provisions of the act, as a trust arises, and the lien continues till presumption of payment arises. (h) The act, in this respect, is one of limitation and

(a) Bryant v. Hunter, 3 W. C. C. R. 242 ; Todd v. Todd's Ex'rs, 1 S. & R. 453 ; Martin v. Fry, 17 S. & R. 426; Walker's Est. 3 R. 237, 242; 9 W. 60.

(b) Sperry's Est. 1 Ash. 347.

(c) Ib. Bell v. Newman, 5 S. & R. 78.

(d) Act of April 8, 1833, § 10; Walker's Est. 3 R. 242.

(e) Act of 1834; Purd. Dig. 476; Kerper v. Hock, 1 W. 14; Penn v. Hamilton, 2 W. 60; Fetterman v. Murphy, 4 W. 429.

(f) Act of 1834.

(g) Purd. Dig. 476; McMillan v. Red, 4 W. & S. 237; Chambers v. Carson, 2 Wh. 365; Christman v. Fritz, 13 S. & R. 1; Guier v. Kelley, 2 Binn. 229.

(h) 2 Browne 294; Alexander v. McMurray, 8 W. 504; Steel v. Henry, 9 W. 523.

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