
    Nace and others against Hollenback.
    In Error.
    THIS was a A ejectment in the Common Pleas of Luzerne county, brought by Matthias Hollenback, the plaintiff below, against George Nace and Peter Shaffer, in which John Hollenback was admitted to defend as landlord. A bill of exceptions was taken by the defendant in the court below, from which the case appeared to be as follows:
    The lands for which this ejectment was brought were mortgaged, with others, on the 27th May, 1803, by Thomas Duane to Joshua Lippincott, for the sum of $2128. On the 16th November, 1804, Joshua Lippincott made an assignment in writing of the mortgage, and accompanying bond, to Matthias Hollenback, the plaintiff in this ejectment. A scire facias was issued upon this mortgage, at the suit of Joshua Lippincott, indorsed for the use of Matthias Hollenback, against Thomas Duane, and terretenants, returnable to April Term 1808, in the Common Pleas of Luzerne county. It was returned by the sheriff, “Served, March 25th, 1808, by “ producing this writ to, and leaving a copy with Jacob Nace “ tenant in possession.” T. Graham's name, as attorney, was marked on the margin of the docket of April Term 1808, opposite the defendant’s name, in the scire facias suit. The following entries were afterwards made on the record. t£ 20th June, 1808, defendant pleads payment with leave to “give the special matter in evidence: replication non solvit “ and issue.” A trial was had at January Term 1809, and a verdict was given for the plaintiff for 2297 dollars 58 cents, and six cents costs. A levari facias, an alias, and a pluries were issued, returnable to August and November Terms, 1809, and April Term, 1810: and on the pluries the sheriff returned the mortgaged premises sold to Matthias Hollenhack, and a deed was given by the sheriff to Matthias Hollenback on the 4th April, 1810. On the trial of this ejectment it was proved, that George Nace lived on the premises at the time the scire facias was issued and served, and also at the time of bringing this ejectment; and that Peter Shaffer was his son-in-law, and lived there also as tenant under him at the time this ejectment was served. Thomas Dyer, a witness on behalf of the plaintiff, swore, that he issued the writ of scire facias as attorney for the plaintiff, and that after the service of the writ, George Nace came to him and wished to employ him to defend the suit, and showed him a copy of the scire facias : but the witness told him he was' concerned for Matthias Hollenback, and recommended Thomas Graham to him. That George Nace said, that the sheriff had been over, and left him that paper, that the old mortgage was coming up. On the trial of the scire facias the defendants set up as a defence, that the mortgage was satisfied, and Jacob Hart was called as a witness on behalf of the defendants. Thomas Graham appeared on that trial as counsel for the defendants generally, and conducted the defence on their part.
    
      In an ejectment brought to recover lands purchased under a sheriff’s sale upon a judgment in a sdre facias, on a anortgage, the terretenant cannot give in evidence any matters which might have been shown in the scire facias suit, unless there has been fraud or collusion between the mortgagor and mortgagee, or the terretenant was not a party to the scire Jadas.
    
      The defendants then offered to give in evidence on the trial of this ejectment, the following facts and circumstances. That Thomas Duane, late of the county of Luzerne, and now of the county of Broom, in the state of New Tork, was indebted to Joshua Lippincott, of the city of Philadelphia, in the sum of two thousand one hundred and fifty-four dollars, to secure the payment of which sum, the plaintiff, Matthias Hotlenback, and Thomas Duane, gave their joint bond to Lippincott. This bond remained unsatisfied till the year 1803. In the spring of that year Duane called upon the plaintiff, Hollenback, and expressed a wish to have some further indulgence, if hé could in any way secure Lippincott, and proposed securing Lippincott by a mortgage upon his property in King
      
      ston. The plaintiff said he would mention the subject to Lippincott. Some time after the plaintiff told Duane he had ¿one 80¶ an(j that Lippincott agreed to take a mortgage upon the land in question, and give some further time. Duane accordingly executed the mortgage' to Lippincott, and also a bond to secure the payment of the said sum of 2154 dollars, with interest. This bond and mortgage were delivered to the plaintiff, Hollenback, to be forwarded to Lippincott. The mortgage ran on till November, 1804, when the plaintiff and Duane were going to Philadelphia, and on their journey, Duane informed the plaintiff that he could effect an advantageous sale of part of the land to George Nace, if he could settle up the mortgage due to Lippincott. After they had been in Philadelphia about a week, the plaintiff, Hollenback, gave Duane to understand, that he intended to assist him in settling and discharging the mortgage, in order to enable him to sell part of the land, and free his property in Luzerne co'unty from incumbrances. Afterwards, on the 15th November, 1804, the plaintiff, Hollenback, informed Duane, that he had made an arrangement with Lippincott to satisfy and discharge the mortgage for him. Duane inquired upon what terms the mortgage was to be discharged and satisfied. The plaintiff, Hollenback, answered, that Lippincott had agreed to make him, Duane, a present of all the interest that had accrued upon the debt, and to take the notes of the plaintiff, Hollenback, and Duane, for the sum originally due before the mortgage was given. The plaintiff,, Hollenback, also told Duane, “ I have agreed to join you in the notes.” Accordingly the next day, the 16th November, 1804, three several notes were brou ght to George Lesher's tavern in Philadelphia, where the plaintiff, Hollenback, and Duane were, by a clerk of Lippincott's, to be executed, and they were signed by the plaintiff, Hollenback, and indorsed by Duane; one for 708 dollars payable in six months, one other for 710 dollars payable in twelve months, and one other for 732 dollars payable in eighteen months. At the same time Lippincott's clerk brought the mortgage and bond, and an unsealed letter from Lippincott addressed to Jacob Hart, Esq., then recorder of Luzerne county, authorising and directing Hart to enter satisfaction of the mortgage on the records of the recorder’s office of the county. Duane delivered the mortgage and letter to the plaintiff, Hollenback, to take for him, Duane, to 
      Wilkesbarre, to which place the plaintiff, Hollenback, was immediately going; and there was no understanding between the plaintiff, Hollenback, and Duane, that the plaintiff, Hallenback, should hold the mortgage and bond as his security for joining Duane in the said notes to Lippincott, nor any assignment at that time of the said mortgage executed by Lippincott to the plaintiff, Hollenback.
    
    That upon the return of Duane to Wilkesbarre, he proposed a sale of part of the land to George Nace, one of the defendants, who wished to purchase, but expressed his fears that the mortgage was not paid off and settled. Duane then applied to the plaintiff, Hollenback, to go to the recorder’s office and have satisfaction entered upon the mortgage. They accordingly went there together, and applied to the recorder, Hart, to enter satisfaction, or allow it to be entered agreeably to the directions of Lippincott1 s letter. But Hart objected, alleging not only that thejetter was insufficient for that purpose, but that it was necessary Lippincott should do it in person. Duane then observed to the plaintiff, Hollenback, that'he was afraid Nace would not purchase, unless satisfaction was actually entered on the mortgage. The plaintiff, Hollenback, then expressed great indignation at the recorder, for not entering satisfaction, and said he would immediately take it upon himself to get a writing from Lippincott for the purpose of entering satisfaction on the mortgage, and said that he would satisfy Nace that the mortgage should never injure him, if he purchased the land in question. Shortly after this conversation Duane took George Nace to the house of the plaintiff, Hollenback, to get assurances that the said mortgage was paid and settled: and the plaintiff, Hollenback, assured George Nace, that he need not be afraid of the mortgage, that he, Hollenback, was knowing to its being settled and paid, and that he might buy with perfect safety as respected it. One or two days after this last conversaton, Duane and Nace met the plaintiff, Hollenback, in Wilkesbarre, and Hollenback inquired of Duane, whether Nace and he had yet agreed. Duane answered, that they had not, for Nace was still afraid of the mortgage. The plaintiff, Hollenback, pplled from his pocket, among other papers, the mortgage, and the letter' from Lippincott to Hart, and addressing Nace said “ Here is “ the mortgage settled and taken up, and here is a letter to “ go to .the recorder to have satisfaction entered upon the “mortgage in the recorder’s office, and what do you want “ more if you intend buying at all, now is your time to buy.” Upon Nace’s making some difficulty about paying as much money down as had been agreed upon, Hollenback advised Duane to sue Nace for damages, and said he would do it, if it was his case. Nace then consented to enter into a written agreement, corresponding with the one he' had made before verbally: which was done in February or March, 1805. On the 4th May, 1805, Duane executed a deed to Nace, the consideration of which, 1000 pounds, was partly paid and partly s'ecured. That there never was at any time, any understanding between Duane and the plaintiff, Hollenback, that any part of. the said consideration money was to be paid to the plaintiff, Hollenback, or any other person than Duane. That in the month of July, 1805, Duane paid Lippincott 500 dollars on account of the first note before mentioned, and took Lippincoti’s receipt for the same. In June or July, 1806, Duane, for the purpose of securing the plaintiff, Hollenback, for the said three notes, assigned and indorsed to him two judgment bonds against George Nace, amounting exclusive of interest, to 911 dollars 10 cents, and a note of hand of Isaac Carpenter for 533 dollars 33 cents, exclusive of interest, the whole bearing interest from the spring of 1805. These were assigned for the express purpose of securing the plaintiff, Hollenback, on the said three notes; and the two obligations assigned, were a part of the consideration money aforesaid, which fact was well known to the plaintiff Hollenback : and, that the said obligations, and judgments thereon, rendered against Nace, have remained ever since the assignment of them, entirely at the disposal of the plaintiff Hollenback. That the plaintiff, Hollenback, sometime toward the close of the year 1806, informed Duane, that he would try to frighten Nace with the said mortgage, with a view solely to make him pay his bonds before they became due: one of the said bonds was due in the spring of 1806, and the other in the spring following.
    The whole of this evidence on the part of the defendants, was objected to by the plaintiff, and over-ruled by the court, who sealed a bill of exceptions.
    
      Huston and Watts for the plaintiff in error contended,
    that the evidence was improperly rejected by the court. The evidence offered, went to show gross fraud in the obtaining of the judgment on the scire facias, and in the conduct of the plaintiff, Hollenback, who was also a party to that suit. It is true, that a matter of fact once tried, cannot be tried again; but it no where appears, that the fraud offered to be proved by the defendant had been tried. Neither Duane nor George Nace were legally parties to the suit: the scire facias was not served on them, but on Jacob Nace. George Nace owned only a part of the mortgaged premises: there is no evidence as to who owned the other part: and Jacob Nace might have been in possession of it. Even if George Nace was a party to the scire facias, the fraud was not tried, nor put in issue, nor is it stated, that Jacob Hart gave evidence, but only, that he was called as a witness. The defence set up in that suit was merely that the mortgage was satisfied. The most-material facts were unknown even to Hart: and Duane could not be a witness on the scire facias suit. George Nace was entitled only to part of the mortgaged premises, and could not make a defence which went to the whole. Wherever chancery would relieve, our courts will receive evidence : and chancery will stay the trial, verdict or execution, or stop money in the hands of the sheriff, for the purpose of relieving against fraud. 2 Com. Dig. 47, 48, D. 9. The case of Heller v. Jones, was different from this, because there G. Miller appeared on record as the defendant, and expressly gave notice of the special matter, which was relied on by way of plea. They cited Peake’s Ev. 75, 76. Hale’s His. Com. Law, 45. 49, Duchess of Kingston’s Case. 2 Binn. 47. Opinion of Yeates J. Taylor v. Horde,
      
       1 Burr. 118, 119. 2 Atk. 279.
    
    
      Hall and Duncan for the defendants in error argued,
    that the object of the evidence offered, was to prove matters which might have been given in evidence in the scire facias suit, and that the party was now concluded. George Nace knew all the facts, was served with the scire facias, and employed counsel in that suit, who entered an appearance for all the defendants generally: and he cannot be heard twice to the same points. The issue was joined on the plea of payment with leave, &c. on which every circumstance showing fraud, might have been heard, without particular notice, un« less it was required by the plaintiff. This is the rule of the court 0f Common Pleas. In that suit, Hart, the witness offered in this ejectment, was produced: and if others were omitted, it was the defendant’s own fault. If there had been artifice or fraud in obtaining the judgment on the scire facias, the Court of Common Pleas would have been applied to, to open the judgment. A decision in a suit is conclusive, till reversed or set aside, on all parties, as to the matters in question, and cannot be re-examined in any court, either of law or equity. In a court of law, if a fact is once tried, it is conclusive : it is not sufficient even that new evidence has been discovered. Hard. 126. 3 Black. Com. 160. 1 Rol. Ab. 601, Sparkes v. Garrigues.
      
       2 Burr. 1009. Skinn. 586. In a scire facias on a judgment, the defendant can give in evidence only matters arising since the judgment, Hartzell v. Reiss. In Jones v. Heller,
      
       the points made in this case were fully discussed, and were settled by the opinion of a majority of this court. Chancery will not relieve against fraud, which the party might have shown, and omitted to show on trial. Courts of equity are as much bound by the rules of evidence, and rules of law, as courts of law. 2 Atk. 48. 2 Burr. 1108. A bill of review must be for matter discovered since the last bill. Bennet v. Lee.
      
       Chancery will not relieve against a voluntary forfeiture of a copyhold estate, 1 Str. 447, 452, nor in case of a will not executed according to law. Ib. 621. Nor where a party has knowledge of the fraud, or other defence in time to make use of it, and neglects to do so. 1 Johns. Ca. 436. The proceeding by scire facias on a mortgage, is peculiar to Pennsylvania, and is regulated by our own act of assembly. By the act of 1705, the purchaser is to hold “ clear of all equity “ of redemption.” They cited 3 Black. Com. 454. 2 Com. Dig. G. Bill of Review. 1 Hale’s, H. C. L. 39. 43. 49, Meadows v. Duchess of Kingston, by the name of Elizabeth Harvey.
      
       1 Binn. 214. 2 Binn. 145. 2 Burr. 1009. 2 Caine’s Case in Err. 260. 285. 290. Amb. 762. 2 Bl. Rep. 977. 1176. 4 Johns. 202.
    
      
       4 Binn. 61.
    
    
      
       1 Burr. 60.
    
    
      
       1 Binn. 152.
    
    
      
      
         1 Binn. 289.
    
    
      
      
         4 Binn. 61. 72.
    
    
      
       2 Atk. 529.
    
    
      
      
         Amb. 756:
    
   Tilghman C. J.

Matthias Hollenback, the plaintiff below, brought this ejectment against the defendants, for a tract of land which was mortgaged by Thomas Duane to Joshua Lippincott, by deed dated 27th May, 1803. The mortgage was assigned by Lippincott to the plaintiff, by a writing bearing date 16th November, 1804. On the 4th May, 180o, Duane conveyed part of the mortgaged premises to Geórgé Nace, One of the defendants-. The two other defendants, Peter Shaffer and John Hollenback, claim under George Nace. A sci.fa. on the mortgage was issued in the name of Lippincott, for the use of Matthias Hollenback, against Duane and the terretenants, returnable to April Term, 1808, in the Court of Common Pleas of Luzerne .county. The sheriff returned, “ served on Jacob Nace, terretenant.” At that time, George Nace was living on the land, and it was proved, on the trial of this ejectment, that “ he confessed the sci. fa. had been served on him, and employed counsel to defend himHence it may be concluded (and it was so taken by the Court of Common Pleas) that Jacob Nace was the tenant of George Nace, and service on Jacob was tantamount to service on George. The plea put in to the sci.fa. was, “ payment, with “ leave to give special matter in evidence.” The plaintiff replied, non-payment,” and thus issue was joined. Under this plea of payment, with leave, &c. the defendants, by the rule of the Court of Common Pleas, might give in evidence any thing which showed that the plaintiff had no right to recover, whether the defence was of a legal or equitable nature; he might give in evidence, either that the mortgage was actually paid, or that if ought not to be' paid, by reason of fraud in Lippincott, the mortgagee, or Hollenback, the assignee, for whose use the suit was brought. There was a verdict and judgment for the plaintiff, on which a levari facias issued; the land was sold, and Matthias Hollenback became the purchaser. This was all in conformity with the “ Act for taking “ lands in execution for the payment of debts,” passed in 1705, (1 Sm. L. 59. sec. 6.) By that act the defendant may plead payment of all or any part of the mortgage money, “ or any other lawful plea in avoidance of the debt, as the case may require.” The act declares also, that upon judgment obtained by the plaintiff, a levari facias may issue, upon which the land may be sold, and the purchaser shall hold it « free from all equity, or benefit of' redemption by the mort-- « gagor, his heirs, or assigns.” Upon the trial of this ejectment the defendant offered to give in evidence a variety of facts, tending to show, either that the mortgage money was pajcp or that Lippincott, or Matthias Hollenback, or both, had been guilty of fraud; but the court rejected the evidence. The cause appears to me to turn on the single point, whether the defendant, George Nace, was a party to the scire facias, and, after the evidence which I have mentioned, I think it must be granted, that he was substantially a party. The plaintiffs in error have laboured to prove, that the defence set up in this ejectment, was different from the defence in the scire facias. I cannot say they have satisfied me of that, because George Hart, who, from the defendant’s own showing, knew most of the facts on which they now rely, was examined as a witness, and if he swore to the matter now stated by the defendants to have been within his knowledge, and the jury believed him, the verdict ought to have been for the defendant. But it is immaterial whether the defence in the scire facias was precisely the same as that now set up, because the defendants might have given evidence of every thing which they offered to prove in this suit, and, if they did not, it was their own fault. It does not appear, that any material fact has come to light since the scire facias, so that the question is, whether the defendants shall have a trial now, of a matter which was, or might have been, tried before. This question is answered by the act of assembly on which the scire facias was founded. The defendant was permitted then to make his defence; he did make it, and failed. The consequence is, by the plain words of the law, that the land having been sold under a levari facias, the purchaser shall hold it. It is enough for him to show the judgment, execution, sale, and sheriff’s deed, and the terretenant cannot be admitted to any defence which was, or might have been, made before. There is no more reason why these defendants should be permitted to enter into the merits of the judgment on the scire facias, than if there had been judgment in an original action on a bond, and the land had been sold, under an execution on that judgment. If indeed the judgment in the scire facias had been obtained by fraud, or collusion between the mortgagee and mortgagor, the defendants in this ejectment might have shown it: And I think that if George Nace had not been a party to the scire facias, he might have made any defence in this suit which would have been open to him on the scire fa cías. But as the case stands, he is precluded. I am therefore of opinion, that the judgment should be affirmed.

Yeates J. of the same opinion.

Brackenridge J. dissented.

Judgment affirmed.  