81 Pa. 100 | Pa. | 1876
delivered the opinion of the court,
If there is any point which may be regarded as settled in this state, it is that, upon the distribution of the proceeds of a sheriff’s sale a subsisting judgment can only be attacked by other creditors collaterally on the ground of collusion : Dougherty’s Estate, 9 W. & S. 189 ; Lewis v. Rogers, 4 Harris 18; Thompson’s Appeal, 7 P. F. Smith 175 ; Clark v. Douglass, 12 P. F. Smith 408.
They may show indeed any matter of defence arising subsequent to the judgment, which the defendant himself could do in an action of debt or scire facias upon it. The jury below were empannelled to try three issues, which had been ordered by the court. Neither the learned judge before whom the issues were tried, nor this court upon a writ of error to the judgment, have any right to modify them, or consider what they ought to have been. They may indeed construe them, as was done in Clark v. Douglass, supra. The first of these issues might perhaps be construed so as to present the question, whether the judgment under which the plaintiff claimed, was obtained by fraud on creditors, but the other two issues Avere distinct, that the sum for' which the judgment was entered Avas not due, and that the note Avas signed by Lentz in blank. ■ What bearing the decision of the.se issues would have upon the distribution Avas not for the judge below nor for us.
Whatever these issues were, we think it very clear that Lentz Avas a competent witness. It was so held in Ferree v. Thompson, 2 P. F. Smith 353, Avhen the issue Avas expressly as to a fraud upon the debtor, and not upon creditors, and which 'in the subsequent case of Thompson’s Appeal was held by this court to be entirely without any effect upon the distribution. Whether, where an insolvent man gives his creditor a blank note or judgment, which the creditor afterwards fills up Avith a much larger amount than that which is justly due, such an act is not evidence of collusion to defraud creditors, is a question Avhich is not before us upon this record and Ave express no opinion.
The learned judge below considered that the witness, Lentz was rendered imcompetent, under the provisions of the Act of April 5th 1869, Pamph. L. 30, entitled “ An act alloAving parties in interest to be witnesses.” We think that this was an err.or. That act was intended as an enlarging statute. No person competent before the passage of the act was rendered thereafter incompetent, eitherby the words or the spirit of the law. Regarding the issue beloAV as an action by executors, the statute declares that it shall not apply in such an action, in other Avords, that the question of competency or incompetency of witnesses shall remain as if the statute had not been enacted.
Judgment reversed, and venire facias de novo awarded.
