of the proceeds of the sheriff's sale. They are not under the necessity of showing that they would have bid more for the property had they known of the lien. Their action is presumed to have been based on the record of which they were bound to take notice. The mere fact that there was a valid claim and lien against the defendant in the execution does not prejudice a creditor or purchaser.

Decree reversed, and it is now considered that $4,866.06 be appropriated pro rata to the assignees in the case of Daniel Cessna, Trustee, v. Everett Glass Co., and the balance of the fund to costs, as set forth in the decree of the court below. Costs of appeal to be paid by appellee. Record remitted.

VOWINCKEL v. PATTERSON.1

(Supreme Court of Pennsylvania. June 1, 1887.)

PARTITION-VALIDITY-CURATIVE ACT-CONSTRUCTION.

The fourth section of Pennsylvania act of April 25, 1850, (Purd. Dig. 545, 182,) declares the true intent and meaning of the third section of the act of April 13, 1840, (Id. 538. § 151,) to be "that the title of persons to real property of decedents in this commonwealth, heretofore acquired under proceedings in partition in the orphans' courts, if such proceedings were in other respects regular, shall not be impaired or in any wise defeated or niade void, by or upon any other proceeding in any court of this commonwealth, by reason of such property, or any part thereof, having been devised by any such decedent to children or heirs generally, or to any one or more of them, or to other persons, if such devise to one or more had become lapsed, or had become forfeited by non-performance of any condition, or the devisee or devisees for any reason had refused to accept the same." Held, that the expression, "if such devise to one or more had become lapsed" or forfeited, or unaccepted, cannot be applied exclusively to a devise "to other persons." By repeating the words "one or more," it relates to the devise "to children or heirs generally, or to any one or more of them."

Error to common pleas, Blair county.

The case is fully reported in 6 Atl. Rep. 470.

A reargument was ordered to determine the question whether the fifth section of the act of April 25, 1850, which refers to the act of April 13, 1840, and extends the provisions of the third section thereof, applies to this case. Aug. S. Landis, for plaintiff in error.

Under the first section of the act of 1850, cases hereafter arising are to be treated as valid according to that meaning; then they are valid if there is an executrix named in the will, and she has given security. In this case there was no executrix. The legislature intended by the expression in section 5 of the act of 1850, "as declared in the first section of this act," the first section, and not the fourth section, as contended by the defendant in error.

Ben. L. Hewit, for defendant in error.

By the first section was meant the fourth section. This is manifestly a typographical error.

TRUNKEY, J. When this cause was heard and decided no reference was made to the act of April 25, 1850, (P. L. 570.) After the decision was announced, a jurist of much experience in all that pertains to the business in the orphans' court, whose suggestion is entitled to consideration, called our attention to that statute, and, the question of jurisdiction being so important, a reargument was ordered. The learned counsel have greatly aided us by their able arguments upon the question.

The fourth section of the act of 1850 declares the true intent and meaning of the third section of the act of 1840 "to be that the title of persons to real property of decedents in this commonwealth, heretofore acquired under proceedings in partition in the orphans' courts, if such proceedings were in other

Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

respects regular, shall not be impaired, or in anywise defeated or made void, by or upon any other proceeding in any court of this common wealth, by reason of such property, or any part thereof, having been devised by any such decedent to children or heirs generally, or to any one or more of them, or to other persons, if such devise to one or more had become lapsed, or had become forfeited by non-performance of any condition, or the devisee or devisees for any reason had refused to accept the same. The fifth section declares that said third section of the act of 1840, according to the meaning thereof as declared by the first section of this act, shall extend to all cases which have heretofore arisen, or which may hereafter arise, within this commonwealth. Without considering whether the court may amend said fifth section by striking out the word "first," and inserting instead the word "fourth," it is clear that the meaning of the third section of the act of 1840 is defined in the act of 1850. Prior to the statutory definition of said third section of the act of 1840 its meaning was plain; now it is unlikely that it can be satisfactorily ascertained. Its application is limited to cases where the devise is to children or heirs generally, or to any one or more of them, or to other persons, if the devise has become lapsed, or forfeited for non-performance of a condition, or the devisee has refused to accept. The expression, "if such devise to one or more had become lapsed or forfeited or unaccepted, cannot be applied exclusively to a devise "to other persons;" nor do we now say it applies to such devise. By repeating the words "one or more," it relates to the devise "to children or heirs generally, or to any one or more of them." Nothing in the facts of this case brings it within the statute. Perhaps it would have been useful legislation had the jurisdiction of the orphans' court been extended so as to include partition in all cases of testators' estates.

The judgment already entered must stand. Record remitted.

LEHIGH VAL. R. Co., Garnishee, v. HANLEY and another.1
DONOGHUE and another v. SAME. (Two Cases.)

(Supreme Court of Pennsylvania. March 21, 1887.)

APPEARANCE-FOREIGN ATTACHMENT-EFFECT OF ENTRY OF JUDGMENTS-GARNISHEE. A. brought suit in W. county against B. and C., a summons being issued against B. and a foreign attachment against C., he being a non-resident. A general appear ance for defendants was entered, and judgments were rendered against both defendants for want of an affidavit of defense. The damages against C. being liquidated by means of a writ of inquiry, a transcript of the record was taken to C. county, and an attachment execution issued against D. as garnishee. Subsequently to this, C. appeared, and moved to dissolve the attachment, alleging that the judgment against him was void. The court of C. county dismissed the petition, for the reason that the court of W. county alone had jurisdiction to determine the validity of the judgment. Application was thereupon made to the court of W. county to strike off the judgment, which was refused; the court saying that the judgment was a nullity, but that it would not be struck off because the supreme court would consider that as done which should be done, and would treat it as void. A. then moved for judgment against D., the garnishee, which was entered. Held, that the effect of the general appearance in the original judgment, and the subsequent proceedings in liquidating the amount, gave to it the effect of a personal judgment, and that the judgment against the garnishee was therefore correct.

Error to common pleas, Carbon county.

Attachment in execution by Michael W. Hanley and William F. Welch, for the use of themselves and Braden & Miller, against John Donoghue and Charles Donoghue, partners, trading as John Donoghue & Bro., defendants, and the Lehigh Valley Railroad Company, garnishee, upon a judgment obtained by plaintiffs against defendants.

'Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

Hanley & Welch, on January 11, 1876, commenced an action in the common pleas of Washington county, Pennsylvania, against John Donoghue and Charles Donoghue, partners, trading as John Donoghue & Bro. The action was brought to recover damages for the breach of a covenant under seal. As Charles Donoghue resided in the county of Washington, and his brother John resided in the state of Maryland, the præcipe directed a writ or summons in covenant issue against Charles, and a writ of foreign attachment against John, "a non-resident of this state." The two writs were placed in the hands of the sheriff for service, who returns the one against Charles as served personally and by copy; the one against John is returned that he attached the goods and chattels of John in the hands of several parties, whom he summoned as garnishees, and as to John Donoghue nihil habet. January 22, 1876, a narr was filed. Hart & Brady, attorneys, entered their appearance. August 25, 1876, the following record entry was made: "On motion, judgment in open court, against deft. [in covenant] for want of an affidavit of defense, and sum due liquidated at $J. P. MILLER, Prothonotary." Again, on March 20, 1877, the following entry was made of record: "On motion of plaintiffs' counsel, judgment in open court on the foreign attachment against John Donoghue, the non-resident defendant, and a jury of inquest awarded to assess the damages, by consent of counsel on both sides. Order of court filed. Writ of inquiry issued." The inquest was returned awarding damages in $2,000; and upon the twentieth of March, 1877, judgment was entered against John Donoghue, and on May 18, 1877, the return of the inquest was filed, and judgment ascertained to be $2,000.

A transcript of this record was taken from the records of the court, and filed in the common pleas of Carbon county, and thereupon a writ of attachment in execution was issued against John Donoghue, and the Lehigh Valley Railroad Company was summoned as a garnishee. After the issuance and impetration of the writ, John Donoghue appeared and petitioned the court to dissolve the attachment, alleging, among other things, that there is no valid, legal judgment against him in said court upon which said writ of attachment could issue. The court filed the following opinion:

"The judgment in this court was entered on a transcript of a judgment in the court of common pleas of Washington county, where suit was commenced by writ of summons against Charles Donoghue, and foreign attachment against John Donohue to No. 7 March term, 1876, under the seventieth section of the act of June 13, 1836, (Purd. 720, pl. 35.)

"The entries in the appearance docket of the common pleas of Washington county are as follows:

"Braden & Miller-MICHAEL HANLEY and W. F. WELCH

66
"Os.

"Hart & Brady-JOHN DONOGHUE and CHARLES DONOGHUE, Partners, trading as JOHN DONOGHUE & BROTHER.

"Issued January 11, 1876. Summons in covenant against Charles Donoghue, and foreign attachment against John Donoghue, returnable to first Monday, March, 1876. January 13, 1876, attached all goods, chattels, moneys, and credits of Jolin Donoghue in the hands of William S. Bryson, vice president of the Waynesburg & Washington Railroad Company, and summoned him as garnishee, personally and by copy, in the presence of J. P. Charlton. Also January 14, 1876, attached all goods, chattels, moneys, and credits of John Donoghue, in the hands of J. G. Ritchey, president, and Henry Swart, one of the directors of said company, and summoned them as garnishees, each personally and by copy in the presence of Joseph Wright. Also January 14, 1876, served upon Charles Donoghue, personally and by copy. John Donoghue nihil habet. Sheriff's fee, $2.60. January 22, 1876, narr filed. Au

gust 25, 1876, on motion, judgment in open court against the deft. [in covenant] for want of an affidavit of defense, and sum due liquidated at $666 J. P. MILLER, Prothonotary.

"Sci. fa. vs. Garnishees to No. 198, March term, 1877. "And March 20, 1877, on motion of plaintiffs' counsel, judgment, in open court on the foreign attachment, against John Donoghue, the non-resident defendant, and a jury of inquest awarded to assess the damages by consent of counsel on both sides. Order of court filed. Writ of inquiry issued, returnable to May term, 1877. May 18, 1877, the sheriff makes return of his inquisition that upon the oaths or affirmations of John H. Ewing, M. H. Clark, James A. Galbraith, John C. Hastings, Geo. W. Thompson, D. Orr, Geo. (). Jones, Alfred Creigh, William H. Braden, J. Ham Stewart, T. D. M. Wilson, and A. L. Hawkins, twelve honest and lawful men of the county, do say that the plaintiffs have sustained damages to the sum of two thousand dollars ($2,000) and costs. June 4th, judgment entered against the defendants, sec. reg., for amount found to be due by jury in proceedings upon writ of inquiry of damages, to-wit, two thousand dollars, ($2,000.) "J. P. MILLER, Prothonotary.'

"The judgment docket contains an entry of August 25, 1876, of judgment, Donoghue, John, and Donoghue, Charles, and Donoghue, John & Brother; also, under date of March 20, 1877, judgment against Donoghue, John; and also, under date of June 4, 1877, of judgment against Donoghue, John; Donoghue, Charles; Donoghue, John & Bro. The writ of inquiry of dainages recited that defendants had been summoned to answer the plaintiff in a plea of covenant, and it was in such manner proceeded in our said court that the said Hanley and Welch their damages against the said John Donoghue and Charles Donoghue, by occasion of the premises, ought to recover. But because it is unknown what damages the said Hanley and Welch have sustained by occasion of the premises, we command you that by the oaths, etc. To the scire facias against the garnishees they answered February 28, 1877, that the railroad company was in no way indebted to defendants, or either of them, nor were the garnishees individually indebted to them.

"The rule to show cause why the attachment execution should not be set aside as to John Donoghue is maintained on the allegation that he never appeared to the said suit in Washington county, and never authorized any person to appear for him, and that there is no judgment against him in Washington county that can be transferred to Carbon county. The contention of the defendants is that the judgment against John Donoghue entered in the court of common pleas of Washington county is void, because-First, there can be no judgment taken against a defendant in foreign attachment for want of an affidavit of defense; and, second, that the record shows there was no property in the hands or possession of the garnishee, and therefore no judgment could be entered against John Donoghue in the foreign attachment; that, he being a non-resident, the court had no jurisdiction, as there was no appearance for him, and there was no property attached. It is further contended that the judgment taken against him on the twentieth of March, 1877, is a judgment in foreign attachment and in rem, and therefore it is not such a judgment as may be transferred to another county, and there treated as a judgment in personam under the act of sixteenth of April, 1840.

"1. As to the first ground of objection, the point has been expressly decided in Grant v. Hickcox, 64 Pa. St. 334. It is therefore very clear that the judgment against John Donoghue, taken on the twenty-fifth day of August, 1876, for want of an affidavit of defense, was irregular and erroneous. The judgment, however, remains. It has never been reversed by a superior court, or set aside by the court of common pleas of Washington county.

"2. The fifty-third section of the act of June 13, 1836, (Brightly, Purd. 719, pl. 13,) provides that in foreign attachment the plaintiff, having filed his

ance.

declaration, may at the third term take judgment against the defendant for default of appearance. The judgment of March 20, 1877, against John Donoghue was entered on the following order of the court: And now, March 20, 1877, on motion of plaintiffs' counsel, judgment in open court on the foreign attachment against John Donoghue, the non-resident defendant, and a jury of inquest awarded to assess the damages, by consent of counsel on both sides. By the Court. GEO. S. HART, P. J. It is not stated on what ground the judgment was taken. The only judgment, where there is no appearance, in foreign attachment, provided for by the statute, is for default of appearThe judgment was entered on motion of plaintiffs' counsel, as is the usual practice where there is no appearance of defendant; and, as we understand the order of the court, a jury of inquest was awarded by consent of counsel on both sides. The record shows a general appearance by Hart & Brady for the defendants. Their names appear on the margin of the appearance docket, opposite the names of the defendants, without any restriction or limitation. If they appeared for John Donoghue, the regular course would have been to rule the defendant to plead, and, if he failed to plead, judgment for want of a plea. The plaintiffs, however, on their motion, took judgment against him in the foreign attachment, thus seeming to ignore the general appearance of Hart & Brady. The writ of inquiry of damages recites that the defendants were summoned to answer the plaintiffs of a plea in an action of covenant,' and that it was in such manner proceed d in said court that the plaintiffs their damages, by occasion of the premises, ought to recover, etc. The sheriff made return to this writ May 18, 1877, and then follows this entry: June 4th. Judgment ent red against the defendants for amount found to be due by jury in proceedings upon writ of inquiry of damages, to-wit, two thousand dollars.' The jury of inquiry simply assessed the damages of the plaintiffs, and settled the amount of the judgment already entered, and the judgment of the fourth of June did nothing more.

"If the judgment of the twentieth of March, 1877, against John Donoghue, in the foreign attachment, is to be treated as the ordinary judginent for default of appearance, then it is but a judgment in rem, and of course is limited in its effect to the property attached,-2 J. & H. Pr. (Fish.) 839, 840,—and its collection cannot be enforced in the court of another county, or transcript there entered. But the judgment of twenty-fifth of August, 1876, still remains; and although that judgment is irregular and erroneous, even though an appearance had been entered for John Donoghue, (Grant v. Hickcox, 64 Pa. St. 334,) yet this court cannot set aside or disturb that judgment. That could be done only by the common pleas of Washington county, or by the supreme court. King v. Nimick, 34 Pa. St. 298. LOWRIE, C. J., delivering the opinion in that case, said: The primary judgment is still the principal one; and the court where that is can alone take any action operating on the judgment itself in any other way than by satisfaction in the proper sense of the term. The court having the certified and secondary judgment cannot inquire into its merits at all. * Among equal courts that which has the primary control of a question has the absolute control, and it alone, or its superiors, can correct its errors.'

* *

"While we cannot disturb the judgment of the common pleas of Washington county, we will continue the rule, to afford the defendant an opportunity to make application to that court.”

A petition is accordingly filed in the common pleas of Washington county, to which an answer is made by the plaintiffs. Judge STOWE, who heard the petition and answer, says that this judgment is a nullity, and decides that there is no occasion to strike it off the records, because the supreme court will consider that done which should be done, and will treat it as a nullity and as void. A transcript of this part of the record was made and filed in the common pleas of Carbon county.