The opinion of the Court was delivered by-
Rogers, J.
—On the 13th of July 1830, Jacob K. Boyer was discharged as an insolvent debtor by the court of common pleas of Philadelphia county, and on the same day made an assignment for the benefit of his creditors ; and-at the same time the court ordered, that the said Jacob K. Boyer should not be imprisoned for any debt, &c., contracted prior to his discharge ; and that whenever a majority in number and value of his creditors should consent in writing therelo, he should be released from all suits, and the estate and properly he might afterwards acquire should be exempted from execution for any debt contracted or cause of action created previous to such discharge, for seven years thereafter.
On the 31st of December 1831, Jacob K. Boyer presented a petition to the court, setting forth that a majority in number and value [205]*205of his creditors had consented in writing, agreeably to the aforesaid order of the said court, and filed the same among the records of the court. Whereupon, the court ordered that he be discharged and released from all suits; and that the estate and property he might afterwards acquire should be exempted from execution for any debt contracted, or cause of action created previous to such discharge, for seven years thereafter.
On the 3d of August 1829, the plaintiff obtained a report of referees under the act of 1705, against the defendant, which was confirmed, On this judgment he issued a fieri facias to the November term 1829, which was returned nulla bona; a scire facias to the April term 1S32, returned served ; and an alias scire facias to the August term 1833. On the 12th of April 1834, the defendant removed the record, by writ of error, to the supreme court. Notwithstanding the writ of error, the plaintiff proceeded to trial on the scire facias, and obtained a judgment, on which he issued a fieri facias to the August term 1834, and on the 23d of April 1834, levied on all the personal property of the defendant, being all after acquired property. On these suits he obtained a rule to show cause why the executions should not be set aside, and as evidence that the property, which was after acquired property, was exempted from execution for the debt, which was contracted previous to his discharge, exhibited an exemplification of the record of the court of common pleas of Philadelphia county in relation to the discharge of the defendant, and the orders and decrees of the court, as above stated.
On the argument the counsel for the plaintiff took three grounds: 1st. They contended that the act exempting after acquired property from execution, was unconstitutional. 2d. That the defence should have been taken to the scire facias. And 3d. That the record of the court of common pleas of Philadelphia county, was no evidence whatever that the defendant had obtained the consent of a majority in number and value of his creditors, that his property should be exempted from execution.
The first ground has been in a measure abandoned, and as it is, therefore, unnecessary to examine the question, we do not. wish to be considered as expressing any opinion upon it. Our opinion will be confined to the other positions of the plaintiff’s counsel.
It is our opinion that the defence should have been taken on the trial of the scire facias. The order is in the nature of a release, and might have been pleaded to that suit; and if it had been, the question would have been fairly and properly investigated before a jury, which is the legal and constitutional tribunal for the trial of all litigated questions of fact. To this it is answered, that the record had been removed to the supreme court, and that the cause was coram non judice. But it must be recollected that the writ of error had been sued out without bail, and was therefore no supersedeas. As, then, there was nothing to prevent the plaintiff from issuing a fieri facias, neither can there be any objection to issuing a scire facias, the [206]*206object of which is to call on the defendant to show cause why an execution should not issue against him. If the record could be removed so as to prevent a plaintiff from having the fruits of his judgment without bail, there would be an end of giving bail on writs of error. Enough remains on the docket of the common pleas, notwithstanding the removal of the record, to enable the court to issue an execution to collect the debt, and as a necessary consequence, to issue process to show cause why execution should not issue. But it is said that the defendant could not gainsay the demand for execution, as it could not appear in that stage of the proceeding that the plaintiff intended to issue execution and levy on properly after-wards acquired and protected by the order of the court. But to this it has been answered, that, the scire facias is general, calling upon the plaintiff to show cause why execution should not issue, and that a judgment on a scire facias, in Pennsylvania, binds property acquired since the judgment. Thus, in Clippinger v. Miller, 1 Penns. Rep. 64, it is decided that the revival of a judgment, by an amicable scire facias post annum et diem, creates a lien on the real property of the defendant, acquired after the entry of the original judgment. The judgment on the scire facias is not merely a revival of the original judgment, but is a new judgment, and has been likened to a judgment rendered in an action of debt on the original judgment.
Third question. Was the second order of the court of common pleas evidence, that a majority in number and value of the creditors had consented to the release of the defendant’s property % This point arises on the twenty-fourth section of the act of the 26th of March 1814, which declares, “ that it shall be lawful for the court, by whom any debtor shall have been discharged, &c., to make an order, that whenever a majority in number and value of his creditors, residing in the United Slates, or having a known attorney therein, consent in writing thereto, he shall be released from all suits, and the estate and property which he may thereafter acquire, shall be exempted from execution for any debt contracted, or cause of action created previous to such discharge, for seven years thereafter ; and if after such order shall be so made, and a majority in number and value of the creditors shall have consented as aforesaid, any action shall be commenced or execution issued for such debt or cause of action, it shall be the duty of any judge of the court, from which the process issued, to set aside the same with costs.
This section the circuit court of the United States, in the Bank of the United States v. Frederickson, has decided to be unconstitutional, a decision which would seem to be in opposition to Mathe v. Bust, 16 Johns. Rep. 233; and Blanchard v. Russel, 13 Mass. Rep. 16. But, notwithstanding this decision, the courts of this state have continued to make the order. Taking the act to be constitutional, it is necessary on this point to examine the extent of the power which the act vests in the court. It seems to me that the court of common pleas has given the act its proper construction. The power of the [207]*207court is exhausted when they make the first order, for I cannot perceive any further authority granted to them.
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The opinion of the Court was delivered by-
Rogers, J.
—On the 13th of July 1830, Jacob K. Boyer was discharged as an insolvent debtor by the court of common pleas of Philadelphia county, and on the same day made an assignment for the benefit of his creditors ; and-at the same time the court ordered, that the said Jacob K. Boyer should not be imprisoned for any debt, &c., contracted prior to his discharge ; and that whenever a majority in number and value of his creditors should consent in writing therelo, he should be released from all suits, and the estate and properly he might afterwards acquire should be exempted from execution for any debt contracted or cause of action created previous to such discharge, for seven years thereafter.
On the 31st of December 1831, Jacob K. Boyer presented a petition to the court, setting forth that a majority in number and value [205]*205of his creditors had consented in writing, agreeably to the aforesaid order of the said court, and filed the same among the records of the court. Whereupon, the court ordered that he be discharged and released from all suits; and that the estate and property he might afterwards acquire should be exempted from execution for any debt contracted, or cause of action created previous to such discharge, for seven years thereafter.
On the 3d of August 1829, the plaintiff obtained a report of referees under the act of 1705, against the defendant, which was confirmed, On this judgment he issued a fieri facias to the November term 1829, which was returned nulla bona; a scire facias to the April term 1S32, returned served ; and an alias scire facias to the August term 1833. On the 12th of April 1834, the defendant removed the record, by writ of error, to the supreme court. Notwithstanding the writ of error, the plaintiff proceeded to trial on the scire facias, and obtained a judgment, on which he issued a fieri facias to the August term 1834, and on the 23d of April 1834, levied on all the personal property of the defendant, being all after acquired property. On these suits he obtained a rule to show cause why the executions should not be set aside, and as evidence that the property, which was after acquired property, was exempted from execution for the debt, which was contracted previous to his discharge, exhibited an exemplification of the record of the court of common pleas of Philadelphia county in relation to the discharge of the defendant, and the orders and decrees of the court, as above stated.
On the argument the counsel for the plaintiff took three grounds: 1st. They contended that the act exempting after acquired property from execution, was unconstitutional. 2d. That the defence should have been taken to the scire facias. And 3d. That the record of the court of common pleas of Philadelphia county, was no evidence whatever that the defendant had obtained the consent of a majority in number and value of his creditors, that his property should be exempted from execution.
The first ground has been in a measure abandoned, and as it is, therefore, unnecessary to examine the question, we do not. wish to be considered as expressing any opinion upon it. Our opinion will be confined to the other positions of the plaintiff’s counsel.
It is our opinion that the defence should have been taken on the trial of the scire facias. The order is in the nature of a release, and might have been pleaded to that suit; and if it had been, the question would have been fairly and properly investigated before a jury, which is the legal and constitutional tribunal for the trial of all litigated questions of fact. To this it is answered, that the record had been removed to the supreme court, and that the cause was coram non judice. But it must be recollected that the writ of error had been sued out without bail, and was therefore no supersedeas. As, then, there was nothing to prevent the plaintiff from issuing a fieri facias, neither can there be any objection to issuing a scire facias, the [206]*206object of which is to call on the defendant to show cause why an execution should not issue against him. If the record could be removed so as to prevent a plaintiff from having the fruits of his judgment without bail, there would be an end of giving bail on writs of error. Enough remains on the docket of the common pleas, notwithstanding the removal of the record, to enable the court to issue an execution to collect the debt, and as a necessary consequence, to issue process to show cause why execution should not issue. But it is said that the defendant could not gainsay the demand for execution, as it could not appear in that stage of the proceeding that the plaintiff intended to issue execution and levy on properly after-wards acquired and protected by the order of the court. But to this it has been answered, that, the scire facias is general, calling upon the plaintiff to show cause why execution should not issue, and that a judgment on a scire facias, in Pennsylvania, binds property acquired since the judgment. Thus, in Clippinger v. Miller, 1 Penns. Rep. 64, it is decided that the revival of a judgment, by an amicable scire facias post annum et diem, creates a lien on the real property of the defendant, acquired after the entry of the original judgment. The judgment on the scire facias is not merely a revival of the original judgment, but is a new judgment, and has been likened to a judgment rendered in an action of debt on the original judgment.
Third question. Was the second order of the court of common pleas evidence, that a majority in number and value of the creditors had consented to the release of the defendant’s property % This point arises on the twenty-fourth section of the act of the 26th of March 1814, which declares, “ that it shall be lawful for the court, by whom any debtor shall have been discharged, &c., to make an order, that whenever a majority in number and value of his creditors, residing in the United Slates, or having a known attorney therein, consent in writing thereto, he shall be released from all suits, and the estate and property which he may thereafter acquire, shall be exempted from execution for any debt contracted, or cause of action created previous to such discharge, for seven years thereafter ; and if after such order shall be so made, and a majority in number and value of the creditors shall have consented as aforesaid, any action shall be commenced or execution issued for such debt or cause of action, it shall be the duty of any judge of the court, from which the process issued, to set aside the same with costs.
This section the circuit court of the United States, in the Bank of the United States v. Frederickson, has decided to be unconstitutional, a decision which would seem to be in opposition to Mathe v. Bust, 16 Johns. Rep. 233; and Blanchard v. Russel, 13 Mass. Rep. 16. But, notwithstanding this decision, the courts of this state have continued to make the order. Taking the act to be constitutional, it is necessary on this point to examine the extent of the power which the act vests in the court. It seems to me that the court of common pleas has given the act its proper construction. The power of the [207]*207court is exhausted when they make the first order, for I cannot perceive any further authority granted to them. They are not made the judges of the fact, essential by the act to the discharge of the insolvent’s after acquired property, that he has obtained the consent thereto of a majority in number and value of hiscreditors. It is left, as in justice it ought to be, to be examined and judged of by the court, or one of its judges, which issues the execution, to whom application is made for relief. If the legislature intended to do more than authorize the court to make an order, on which the insolvent may proceed to obtain the written consent of his creditors, it is inconceivable that they should omit to give the creditors a day in court, or to provide for some notice of the decree of the court. And this argument derives force from this, that if the second order is evidence, it must, from its nature, be conclusive; for it is the decree of a court of competent jurisdiction, on a matter coming directly before them. The counsel in error seem to think that the practice in Philadelphia is founded on the authority of Chief Justice Tilghman, in Wager v. Miller, 4 Serg. & Rawle 123., The chief justice incidentally remarks that, under the act of the 26th of March 1808, the court who discharged the insolvent debtor might, with the consent expressed in writing of a majority in number and value of his creditors, make an order that the debtor should be released from all suits. If the remark bears the construction put upon it, it is very evident that it was made without due consideration of the act; for it is plain, that the consent of the creditors is not required to authorize the court to make the order. The order of the court is a preliminary, which enables the insolvent to obtain the consent of the creditors, so as to make it an effectual discharge of the property he may after-wards acquire ; but there is nothing in the letter or spirit of the act which authorizes them to take any other steps in the matter. In Ingraham on Insolvency, it is said to be the practice to make a reference to the prothonotary, upon whose report that a majority have given their consent, the order is made. By this practice, the prothonotary is made, in some measure, a judge, for which I see no authority in the act. It may also be attended with great injustice to creditors who have given no consent, and who may have had no notice of the proceeding. It has been said, that a contrary practice would be inconvenient. But surely it is no great hardship that those for whose benefit this provision is made, should be prepared with proof that the directions of the act have been complied with. Nor would this be attended with more difficulty than is usual in the proof of the execution of other instruments of writing. All that the act requires is, that the judge to whom the application is made, should be satisfied that a majority in number and value of his creditors have consented, in writing, to release the property, when it is made his duty to set aside the process with costs.
Judgment affirmed.