Tucker v. Lowndes

1 S.C.L. 213

• Court: Pennsylvania Court of Common Pleas
• Decided: September 15, 1791
• Status: Published

Opinion

By the Court

unanimously.

Every judgment binds for-the whole amount in order, agreeably to seniority. The instalment law does not alter the common law or statute of frauds, in this respect — -though the defendant may, at any stage before judgment entered up, come in and pay the in-stalments due, and give security for the residue, and by that means discharge the suit. It is the duty of the sheriff, in every case where an execution comes to his hands, to sell as much of the defendant’s effects as would pay off the instalments due to the plaintiff in cash, and as much more on.a credit, agreeable to the instalment law, as would fully satisfy the plaintiff’s judgment, and deliver over to him such bonds, with security, as he may take for the credit of the judgment; and so on, in like manner, to every subsequent creditor, agreeable to seniority.

With regard to the demand of security — although the want of it might be pleaded in bar to the action ; yet this advantage has been waived by the defendant. It is too late, after verdict and judgment, to make it an objection. Lucas Ca. 431. 440. Ibid. 38.

Rule discharged.

Present, Rutlesge, Ch. J. and Judges Burke, Grimke, and Bay.