
    [Philadelphia,
    March 27, 1830.]
    STAHL against JARRETT
    IN ERROR.
    In an action for money had and received, to recover money received by the defendant from the sheriff, arising from the sale of the lands of a persod against whom both the plaintiff and defendant had judgments', it is competent for the plaintiff to show by parol evidence, that the defendant’s judg-r ment, which was the oldest, had been satisfied before the money came int<i the sheriff’s hands: That it was kept on foot by covin and fraud, and that lie, (the plaintiff,) was not a party to a rule entered in the suit in which the defendant’s judgment was obtained, to show cause why that judgment should not be postponed; nor to the following entry on the record; made the next day: “Settled by compromise between the parties.”
    The record of this case.having been returned on a writ of errob to the Court of Common Pleas of Lehigh county, accompanied by four bills of exceptions to the rejection of evidence, it appeared; that the plaintiff in error, John Stahl, brought án action in the court below against John Jarrett, the defendant in error, for money had and received, by the latter to the use of the former.. The money, amounting to five hundred dollars, was received by Jarrett in the year 1SÍ9, from Anthony Musicle, former sheriff of Lehigh county,, but of the proceeds of the sale of the real estate of a certain John Hanger, by virtue of an alleged judgment in his favour against the said John Hanger and one John Witzell, Jr. entered in the Court of Common Pleas of Lehigh county on the 20th of November; 1815, for eight hundred dollars. Upon this judgment no execution had issued.
    The plaintiff, Stahl, had a judgment for one thousand dollars; entered in the same court against the said John Hanger, on the 21st of July, 1818, upon which executions issued, and the land of Hanger, was sold. He claimed the proceeds of the.sale, alleging; that Jarrett’s judgment had been paid, or satisfied by the. defendants in that judgment, or one of them, before the money was received by the sheriff; or, that for other reasons, the defendant’^ judgment was not a valid, subsisting judgment.
    After having proved the receipt of the money b'y the defendant from tbe sheriff in the year 1819, the plaintiff called, as a witness, Thomas JLmey, and proposed to prove by him a conversation, alleged to have taken place in his presence, between John Jarrett and Jacob Witzell, touching the bond on which the judgment of Jarrett against Hanger■ and Witzell was .obtained, in which Jarrett acknowledged, that he had delivered up the said bond to Hanger, and purchased it again from Hanger at a subsequent period. To this evidence the defendant’s counsel objected, on the ground, that the record of the suit, Jarrett v. Hanger and Witzell, contained the following entries: — ■.
    
      “February 2d, 1819. — Rule to show cause why the above judgment should not be postponed,” &c.
    
      “February 3d-, 1819. — Settled by compromise between the parties.”
    The court sustained the objection,.and at the request of the plaintiff’s counsel, sealed a bill of exceptions.
    The plaintiff then called as a witness, Jacob Plartzell, and offered to prove by him, who were the parties to the settlement entered of record, as mentioned above, other than those persons whose names appear of record, as parties to the suit. This testimony was also objected to by the defendant’s counsel, and rejected by the court, to whose opinion, the counsel for the plaintiff took a second exception.
    The subject of the third bill of exceptions, was an offer by the plaintiff to' prove, by Jacob Hartzell, that John Stahl, (the present plaintiff,) was not a party, or privy to the settlement of record, in the said suit, which evidence the court rejected,- on an objection to it by the counsel for the plaintiff.
    The plaintiff then offered to prove by John Hanger, Jr., that prior to the year 1819, John Jarrett had delivered up to bis father, the before-mentioned John Hanger, the bond on which the judgment was obtained by Jarrett. against Hanger and Witzell, on -the 20th of November, 1-815, and that afterwards, and prior to the year 1819, Jarrett had purchased the said bond from the said John Hanger, for five dollars. This evidence being objected to by the counsel for the defendant, it was rejected by the court, upon which a fourth bill of exceptions was tendered by 'the plaintiff’s counsel, and sealed by the court.
    A verdict was given for the defendant, upon which judgment was rendered, whereupon the plaintiff sued out a writ of error.
    
      C. Davis and Stroud, for the plaintiff in error.
    
    — Jarrett held a judgment, obtained in 1815, and Stahl one, obtained in 1818, both binding tbe real estate of Hanger, which in 1819, was sold under the latter judgment. The sheriff, under the idea that Jarreifs judgment is a valid and subsisting one, pays the proceeds of the sale to him. It is afterwards discovered, that this judgment is satisfied, and Stahl, who was consequently entitled to the money, which Jarrett had received from the sheriff, by collusion with Hanger, 
      brings this action to recover it. This is, shortly, the case the plaintiff below proposed to prove. For this purpose, he offered evidence to show, that although the judgment remained upon the-record, the bond had been delivered up, as he alleged, to be cancelled; and that, therefore, the judgment was no longer a subsisting one. To the-entry on the record of the suit, Jarrett v. Hanger, he contended, he was neither a party nor a privy;' and offered to prove that fact-by evidence. The court, however, decided, that he was a privy, and estopped from contradicting the record. The entry in question,, was not the act of the court, but of the parties, and is not> properly speaking, any part of the record. But if it we.re the' act of theeourt, it could not bind the plaintiff in this cause without notice, which he never received, actual or constructive. ■ He could not-have received notice, as the rule to show cause why the judgment should not be postponed, was taken on the 2d of February, and the entry of “ settled by compromise between the parties,” was made the next day. The evidence offered by the plaintiff, and rejected by the court below, went to show, that he was neither a party nor a privy to that transaction, and that if there was not positive fraud, there was at least suppressio veri, in concealing the fact, that the bond had been ‘delivered up. If the offer had been directly made to prove fraud, it could not have been refused, even if the evidence contradicted the record. Here the evidence offered tended to prove fraud, and did not contradict the record, but explained it by matter dehors. The entry alluded to, did not show the judgment to be a subsisting one, for it did not indicate the parties or. privies, exoept the parties on the record. The only persons who can be affected, are parties and privies in blood, or in estate, and it is not pretended, that the plaintiff held either character. All the cases establishing the principle, that a judgment cannot be inquired into, refer to parties. A judgment certainly'binds the parties to it, and this is all that is decided. Estoppels are odious, and governed by strict principles. If the plaintiff was estopped by a compromise between the parties, it rested with the other side to show that he was a party. The court below not only did not require this to be done, but would not permit him to show who really were the parties. This was clearly error. 1 Phill. Ev. 226. Stevelie v. Read, 2 Wash. C. C. Rep. 274. Leather v. Poultney, 4 Binn. 356. Lazell v. Miller, 15 Mass. Rep. 207.
    Admitting the right of the plaintiff to compel Jarrett to enter satisfaction on the judgment, under the act of the 13th of JLpril, 1791, which is by no means clear, it would not help him to get back the money which the defendant has wrongfully received from the sheriff.
    
      Brooke and Scott, for the defendant in error.
    1. The entry of the rule to show cause why Jarrett’s judgment should not be postponed, and the subsequent entry of, “ settled by compromise between the parties,’’justified the defendant in-receiving the money from the sheriff. It was conclusive upon all persons interested in the application of that money. The entry was matter, of the record, for it formed part of the proceedings in the cause. The Berks, and Dauphin Turnpike Company, v. Hendel, 11 Serg. & Rawle, 123. If the entry was part of the record, it imports absolute verity, and cannot be contradicted. 3 Bl. Com. 24. 1 Inst. 260. 1 Phill. Ev. 238. Randall’s Peake, 34. 1 Phill. Ev. 245. 2 Hen. & Munf. 55. The inquiry, then, is reduced to this: was Stahl a party or a privy to that proceeding? He was a party at law. ' It was in his, suit that the money was made. The application to postpone .Jarrett’s judgment, was made at. the next term, and every person who had a judgment binding the land, the proceeds pf which were in the sheriff’s hands, was a party. Who made the motion, the record does not show; but that it was foy the benefit of the plaintiff, is proved by the present action, the foundation of which js, that if Jarrett’s judgment had- been postponed, he would have got the money. The case then stands thus:. — A man forces a sale of another’s property, and if he can succeed in postponing an earlier judgment, he will be paid. An. application for that purpose is made to the court, and the matter is compromised. Can it be, pretended, fhat a creditor thus situated, is not a party? Upon such an application, the parties are, the prior judgment creditors op one side, and the subsequent judgment creditors on the other. The proceeding is in the nature of a proceeding in rem, and is governed by the same rules. The.entry on the record was, therefore, conclusive upon ¿11 who had an interest in the subject. Stahl, undoubtedly, had an interest in the entry, and the. law presumes him to, have been heard.' Besides, having made the money by his execution, he was bound to see to the distribution of it. Strickland v. Strickland, 6 Serg. & Rawle, 102. If the plaintiff was not a party to the proceeding, he was a privy. Privies are such as are partakers, or have any interest in any action or thing, or relation to another. 1 Burns’s Law Dict. 572. Wood. b. 2, c. 3, 5, Jacobs’s Law Dict. 285. The plaintiff was obviously a partaker in the transaction. Standing fn the relation of" a judgment creditor, he was interested in the ap-; plication, in every point of view, he falls within the definition of a privy. How can he allege that he had hot notice, when the very subject of the controversy, the money in the sheriff’s hands, was Raised by his Own act? It was his dpty to be represented, and not the duty of the defendant to give him notice to come in an'd defend his rights. He was in court,-and bound by all that passed. This case may be’assimilated to that of an administration bond, where a suit is brought by one creditor in the name of the commonwealth, ¿nd the result of it is conclusive upon all. Carl et al. v. The Commonwealth, 9 Serg. & Rawle, 63. It resembles, too, the case of a, prescriptive mode of tything, or a customary right of way. The¿ principle in such cases is, that all who are interested are privies. There are but three clashes of persons known, in reference to. 1;‡-
      cords\first, parties; second, privies, both of whom are bound; and, third, strangers, who are not. It cannot be pretended, that the plaintiff, who was the prime mover in the matter, was a stranger. If there had been an express adjudication on the subject, there would have been no room for doubt. Gratz v. The Lancaster Bank, 17 Serg. & Rawle, 278. A compromise of record, with the approbation of the court, is equivalent to an adjudication. The question of party,or privy to the record in dispute, is a question of law, to be determined by the court on an inspection of the record itself. Croswell v. Byrnes, 9 Johns. Rep. 287. If the court decide, that Stahl was a party or a privy, they cannot do away that decision by parol evidence, which is the result to which the proposed testimony would lead; still less can it be permitted in favour of a party who has himself given the record in evidence.
    A conclusive answer to the whole of the plaintiff’s case is, that the money was received under a judgment of record, and while that remains, it cannot be recovered'back. Besides, the plaintiff comes too late. The defendant received the money in question in 1819, under an agreement sanctioned by the court. In 1825, this suit was brought, in which the plaintiff asks ’the court, at this late day, to overhaul the whole matter, merely because he did not attend to his own business at a proper time. His proper course would have been to give notice to Jarrett, to enter satisfaction on his judgment, under the act of assembly- of the 13th.of April, 1791.
   The opinion of the court was delivered by

Rogers, J.

— The gravamen of the plaintiff’s suit is a fraud of-the defendant, for which, under the circumstances of this case, the. action for money had and received is the appropriate remedy. The, defendant alleges the money was received by virtue of a good, va-. lid, and subsisting judgment; but whether the judgment is subsist-, ing and unsatisfied is the very matter in controversy. The plaintiff alleges payment or other satisfaction, and that the judgment is kept on foot by fraud; that it is between other parties, and that he is indirectly, although not directly interested in it. This case is si- ' milar in principle to a suit brought by a creditor against an executor, who pleads plene administravit preeter, &c., goods and chattels not sufficient to pay outstanding and unsatisfied judgments, &c. to which the plaintiff may reply, and by this means put the vali-. dity of the judgment in issue, that the judgments were obtained, and kept on foot by covin and fraud. It is manifest, that the act of-the 13th of April, 1791, directing satisfaction to be entered on, judgments, furnishes no remedy to the plaintiff, for taking it for-granted, that he has such an interest as to entitle him to request satisfaction to be entered, (which is not altogether clear;) yet, a resort to the mode pointed out by the defendant would afford him no relief, as, on a refusal to enter satisfaction, it would merely subject the judgment creditor to a penalty to the party aggrieved, in a sum not-exceeding one-half the debt or damages.

But, it is contended, the validity-of the judgment is res j.udicita, and they rely on the entry, that on the 2d of February, 1819, there was a rule to show .cause why the judgment should not be postponed, and on the 3d of February, 1819, there was entered-on the docket, settled by compromise between the parties.” There is nothing in this entry which shows that the plaintiff was a party to this proceeding: on the contrary, he offers to prove that he nei-, ther obtained.the rule, nor was he aware of the compromise. But it is said, that if not a party; yet he might have been, and that he-is equally concluded by the decree of the court. In the first place, it strikes me that this cannot, with any propriety, be considered as-the act of the court, but as a controversy between other parties, and a settlement of their claims without any adjudication by the court. We are too well aware of the manner in which such entries are made, to give them the effect of a judicial decision. But; if the court had'passed upon the validity of the judgment, it is clear it would bind only the parties. Had there been a decree of the court, distributing the money raised by the sheriff’s sale, such an adjudication would have been conclusive, because the court would have-taken care that all persons interested should have had notice; but it appears to me that the proceeding does not partake of that character. There was no rule to bring the money into, court, which would be necessary to give it jurisdiction over the money made by the sheriff’s-sale. It was a rule obtained in that suit which affects the parties, but not a stranger, which the plaintiff alleges.and offers to prove he was. If such an entry as this is to bind others-who are not parties, and without any notice or opportunity of being heard, it requires but little reflection to' perceive the great fraud.* and injustice which would be the necessary consequence. We are of the opinion that the Court of Common Pleas erred in rejecting. 4he testimony, that the judgment should be reversed, and a venire, facias de novo awarded.

judgment reversed, and a venire facias de novo awarded..  