
    WISEMAN’S APPEAL.
    Goods levied upon, by a Sheriff are subject to attachment under the Act of March 17th, 1869.
    An attaching creditor may be awarded the fund before judgment obtained on the attachment.
    Appeal from Common Pleas of Luzerne County, No. 77 July Term, 1884.
    The facts of the case as found by the Auditor are as follows:
    On or about 28th November, 1883, George S. Burgan, to evade the payment or collection of an execution then issued against him for about one hundred and fifty dollars, in favor of one M. Lederer, proposed to John Barrett, his father-in-law, that he (Burgan) would give him a judgment note, upon which Barrett should proceed to execution and sell him out. Barrett required that money should be passed by him over to Burgan in the presence of one Esquire Cox, before he would take a judgment note. Burgan gave Barrett about three hundred dollars in money. They then went to the office of Esquire Cox, where Barrett, who did not know what amount of money had been given him by Burgan, handed it back to Burgan, in the presence of Mr. Cox. Burgan then signed a judgment note dated 28th November, 1883, for six hundred dollars, in favor •of Barrett, with release of errors, without stay of execution, and waiving inquisition and exemption. The judgment was ■entered on 1st December, 1883, in the Common Pleas of Luzerne county to No. 97, January Term, 1884. On the same day a writ of fieri facias was issued upon this judgment, was received by the Sheriff, who levied on and took into his possession the personal property (consisting of a lot of boots and shoes) of Burgan. On December 18th, 1883, the Sheriff sold the property for $362.00, and after deducting his costs, paid into Court the sum of three hundred and forty-seven and forty-hundredths dollars, which is the fund for distribution. Subsequently to the issuing of the fieri facias on the Barrett judgment, and prior to the sale by the Sheriff, two writs were issued and placed in the Sheriff’s hands against Burgan, as follows:
    
      ist. On the ioth December, 1883, Messrs. Hays, Field & Co., to whom Burgan was indebted for merchandise in the sum of $413.45, issued an attachment under the provisions of the Act of 17th March, 1869, against him, to No. 150 January-Term, 1884. The Sheriff on nth December, 1883, attached the same property levied on by virtue of the Barrett judgment.' On the 15th December, 1883, the Court granted a rule to show cause why, this attachment should not be dissolved. On 25th January, 1884, this rule was discharged by the Court.
    2d. On 17th December, 1883, Wiseman & Blatner, to whom Burgan was also,indebted for merchandise, entered in the Common Pleas of Luzerne county a transcript.of a judgment with certificate of nulla bona attached, which they had previously obtained before an alderman, to No. 205 January Term, 1884, for $190.36 debt, &c., and on the same day issued a writ of fieri facias, which was received by the Sheriff, who levied on the same goods above noted.
    Subsequently to the sale by the Sheriff, but prior to the discharge of the rule to dissolve the attachment of Hays, Field & Co., on the 21st of January, 1884, Barrett, the plaintiff in the judgment No. 97 January Term, 1884, having become troubled in mind, as he alleges, because his wife was “knocked about” in the cross-examination on taking testimony in favor of the fraudulent attachment, and “took the ‘knocking’ hard,” went to Esquire Cox, who appears to have been his friend and adviser, and stating to Cox “that he did not want any trouble in the matter,” asked Cox “if there was any way of getting out ■of it.” Later in the same day, Mr. Barrett, accompanied by Esquire Cox, called at the office of Mr. Lenahan, attorney for Hays, Field & Co., and proposed to assign his judgment (No. 97 January Term, 1884) to Hays, Field & Co., if Lenahan would pay the lawyers of Barrett and Burgan. Mr. Lenahan agreed to pay the lawyers $20.00 each for the assignment, and that he would re-assign the judgment to Barrett after Hays, Field & Co. had received what moneys were in the Sheriff’s hands under the execution in the judgment. The moneys in the Sheriff’s hands were to go to' Hays, Field & Co., less the $40.00 which Mr. Lenahan was to pay to counsel, and to apply on the debt in the attachment when received. The assignment was duly made and entered of record on.22d January, 1884, On 28th January, 1884, George S. Burgan, the defendant, files a notice with the Prothonotary (noted of record in No. 97 January Term, 1884), asking for the exemption under the Act of 9th April, 1849.
    As to the position of the parties before the Auditor:
    1. The judgment No. 97 January Term, 1884, in favor of John Barrett is now owned by Hays, Field & Co. The defendant, George S. Burgan, testifies that the judgment was without consideration, and was conceived and executed with intent to defraud other creditors. Notwithstanding the objections of his counsel, Burgan answered, and made his statement deliberately, stating that “he would answer whether his counsel objects or not.” Both the plaintiff, Barrett, and the counsel for his assignees, were present. Neither objected to the testimony of Burgan, and he was uncontradicted. Waiving the question of the Auditor’s jurisdiction to inquire into the validity of a judgment, regular upon its face, there was a tacit understanding between the parties to the distribution that fraud vitiated this judgment. Much against his personal inclination, but in accordance with his view of the law upon the question of his jurisdiction, the Auditor declines to pass upon the validity of the judgment. No demand is made for payment of the judgment, however, presumably because of the testimony elicited before the Auditor, and he concludes, in view of these premises, that it is not to participate in the distribution of the fund ip Court.
    2. The counsel for Hays, Field & Co., attaching creditors,' and assignees of the Barrett judgment, claim the fund because, 1st, their attachment antedates other executions; 2d, the rule to dissolve the attachment has been discharged and fraud has been shown to exist.
    3. In opposition to this claim it is contended by the counsel for Wiseman & Blatner, execution creditors, that in taking the assignment of the Barrett judgment,, on 22d January, 1884, Hays, Field & Co. accepted a new judgment security for the same debt for which their attachment had previously issued— that the judgment so obtained being between the same parties and for the same subject matter, it operated as a dissolution of the attachment, and is a bar to any further proceedings thereon —that the judgment in favor of Barrett was collusive, without consideration and given for the purpose of defrauding creditors — that this fact was known to Hays, Field & Co. previous to their acceptance of the assignment — and that therefore the attachment should be set aside in this distribution and Wiseman & Blatner be paid their demands first out of the fund in Court.
    4. The defendant, George S. Burgan, presents a claim for three hundred dollars,' exemption, under the provisions of the Act of 9th April, 1849. This demand is antagonized by all the other parties in interest.
    Two questions are therefore presented for determination:
    1st. Whether the judgment No. 97 January Term, 1884, now assigned to Flays, Field & Co., is a bar to any further proceedings on their attachment?
    2d. Is the defendant entitled to the benefit of the exemption?
    
      As to the exemption—
    The defendant first made his demand on 28th January, 1884, the sale having taken place 18th December, 1883, and renewed his demand before the Auditor on the day of the hearing. It is unnecessary to object to the allowance of the exemption because the demand was not made in time or because of the fraudulent and collusive conduct of the defendant. In Mc-Afoose’s Appeal, 8 Casey, 277, it is held that the demand which entitles the debtor to the benefit of the statute “must be made in the case which is the instrument of effecting the sale,” and. “if the sale be effected under a writ issued on a judgment containing a waiver of the exemption law, the debtor has no claim upon any portion of. the fund.” Shelly’s Appeal, 36 Penna. St. R., 373. The sale in this case was made on a writ issued upon the-Barrett judgment. In that judgment the defendant expressly ■waived the right of exemption. The Auditor, therefore, holds that he is not entitled to the benefit of the exemption in this distribution.
    
      As to the remaining question—
    “Whether Hays, Field & Co. are debarred from further proceedings on their attachment” because of their acceptance of the assignment of the Barrett judgment? The learned counsel for Wiseman & Blatner raises a contention based upon the assumption of facts, which he submits should be found from the testimony, and in support of his position he has presented the Auditor with a most elaborate argument, sustained by a carefully prepared brief of authorities. Upon the cases cited, he has convinced the Auditor that where two personal actions are instituted between the same parties for the same cause of action, a recovery of judgment in one extinguishes the right to recover judgment in the other. Brenner, Trucks & Co. vs. Moyer, 98 Penna. St., 274. And where an action has been instituted, and pending a determination of the suit, plaintiff accepts in settlement a judgment, upon certain conditions, given him by, the defendant, for the same subject matter, notwithstanding a failurd on part of defendant to comply with the conditions, the plaintiff is estopped from proceeding with his original action, upon the principle that the judgment merged the cause of action, and thus bars the suit. Jones vs. Ellison et al., 10 W. N. C., 205.
    
    If the facts were within the line of these and other decisions cited by the learned counsel, there would be no difficulty whatever in applying them to this distribution. And.it would have to appear that the judgment now assigned to Hays, Field & Co. was between the same parties and for the same matter. But under the testimony of Mr. Lenahan, the judgment No. 97 January Term, 1884, was owned by John Barrett and was assigned by him to Hays, Field & Co., not in payment of their claim against Burgan, but as collateral security, with the understanding that whatever moneys were collected from, the .Sheriff should be credited on the claim of Hays, Field & Co. Burgan nowhere appears as a party to the assignment. And Mr. Lenahan swears that he did not take the judgment as a payment, and would not do so for the reason that he believed from the testimony taken in the rule to dissolve the attachment, that it was fraudulent. Whatever impressions of propriety maybe raised by Mr. Lenahan’s acceptance of the assignment in behalf of his clients, when he believed the judgment fraudulent, he should not be criticised for his vigilance in their behalf. If he deemed it proper to accept the assignment as an easy mode of disposing of the fraudulent judgment so far as it was in the way of his recovering on the attachment, he cannot be complained of. Nor does the defendant complain. The objection comes from another creditor. Assuming that the objection is proper even from that direction, the Auditor finds neither identity in the parties to the action, or in the subject matter, under the meaning of the decisions cited. He therefore concludes that there was no merger of the cause of action (in the attachment) in-the Barrett judgment, and that the proceeding under the attachment should be sustained.
    Wiseman & Blatner filed exceptions to the report, and also-applied for an issue, to determine whether the Barrett judgment was fraudulent, and whether Hays, Field & Co. took an assignment of it knowing its character. The Court overruled the exceptions and refused the issue in the following opinion, per:
    Woodward, J.
    If this were a case in which it seemed necessary to direct an issue, for the purpose of ascertaining the truth in regard to the validity, of a judgment, which had been attacked for fraud, we should feel inclined to direct it, although the application therefor had not been made in due form, or át the proper time.
    Our Supreme Court, in Thompson’s Appeal, 12 Casey, 4ip, say, “Generally, feigned issues are framed to try definite and clearly defined questions of fact. If the parties cannot, and do not, clearly define the fact in dispute, there ought to be no-issue ordered.” See also Stone’s Estate, 1 C. R. R., I3p.
    
    
      In the present case, what is known as the Barrett judgment, was admitted by all parties before the Auditor, to have been a bald fraud. Neither the plaintiff, nor the defendant, nor the assignee of the plaintiff, alleged that it was founded upon any consideration whatever. On the contrary, it was admitted that it was confessed for the express purpose of defrauding the honest creditors of the defendant. The Auditor, in making distribution of the fund in Court, very properly treated it as a nullity, and gave the money to the second execution.
    And we are unable to understand the application to the case before us, of those authorities to which we have been referred by the learned counsel for the exceptions. If Hays, Field 8c Co. had obtained a judgment against Burgan, and subsequently, for the same cause of action, had begun proceedings by attachment, it might well be argued that the recovery of judgment in the one case had extinguished the right to recover judgment in the other. Brenner, Trucks & Co. vs. Moyer, 98 P. S., 2^4. The maxim of the law is nemo bis vexari pro eadem causa, and this maxim applies as well where the one action is on a statute, and the other at common law, as in those where the form of action, in both cases, is the same. In the present instance neither the cause of action nor the parties are identical. Not only would the payment of the Barrett judgment, as it originally stood, have failed to benefit Hays, Field & Co., but its allowance out of the fund would have resulted in their getting nothing. And we are unable to see in what respect the parties are in a different position, than they would be, if no assignment of the fraudulent judgment had been made. It would seem from the report of the Auditor, that no claim founded upon this judgment was made upon the fund, but that it was treated as if it did not exist.
    The only other question raised by the exceptions to the Auditor’s report, relates to his disallowance of the claim of the defendant for the benefit of the exemption law. But the Auditor was clearly right. To permit a defendant who has confessed a fraudulent judgment, in which he has waived the exemption, to take $300 of the money raised by the sale on execution, issued upon that judgment, would be both absurd and unjust. See Winton vs. Freeman, 14 W. N. C. 324.
    
    The exceptions to the Auditor’s report are overruled and the report is confirmed.
    Wiseman & Blatner then appealed to the Supreme Court, and assigned various errors to the action of the Court in overruling their exceptions to the Auditor’s report, which embraced the following points: That Wiseman & Blatner had alone attacked the Barrett judgment and should be preferred. That the assignment to Hays, Field & Co. was in satisfaction of their debt on the attachment. That there was no judgment on the attachment of Hays, Field & Co., and hence the Wiseman judgment was entitled to the preference.
    
      M. Cannon, Esq., for appellant,
    argued, that the Auditor should have found that Wiseman & Blatner were the only parties who contested the Barrett judgment; or granted an issue; Baker vs. Williamson, 2 Pa. 120; Benson’s Appeal, 48 Pa. 159; Dickerson’s Appeal, 7 Pa. 258; Robinson’s Appeal, 36 Pa. 83; Ringwalt vs. Ahl, 36 Penna. 336. The attacking creditor is preferred; Shulse’s Appeal, 1 Pa. 251; Shick’s Appeal, 49 Pa. 380; Shick vs. Pharo, 49 Pa. 384; Fisher vs. Knox, 13 Pa. 626; Monroe vs. Smith, 79, Pa. 462; Mellon’s Appeal, 96 Pa. 476; Bunn vs. Ahl, 29 Pa. 390; Evans vs. Dravo, 24 Pa. 66. The assignment was given to stop further proceedings on the attachment, and this being the case, the claim of Hays, Field & Co. begun on the attachment was merged in the assigned judgment; Calhoun vs. Dunning, 4 Dall 120; Brenner vs. Moyer, 98 Pa. 274; Sykes vs. Gerber, 98 Pa. 179; Jones vs. Ellison, 10 W. N. C. 205; Stuart vs. Biglin, 98 Pa. 81. There was no judgment on the attachment, and the property was in the hands of the Sheriff, and could not be attached, and therefore, Hays, Field & Co. had no lien; Ross vs. Clarke, 1 Dallas 380.
    
      N. Taylor and J. T. Lenahan, Esqs., contra,
    
    argued, that Wiseman, having failed to demand an issue at the proper time, is concluded by the Auditor’s findings; Miller’s Appeal, 30 Pa. 478; Brua’s Appeal, 55 Pa. 294, Gilbert vs. Grim, 1 W. N. C. 306. The assignment did not affect the attachment; Graham’s Estate, 10 W. N. C. 83; Leonard vs. Leonard, 1 W. & S. 342. It is presumed to have been taken as collateral security; Wolf vs. Wyeth, 11 S. & R. 149; Jones vs. Johnson, 3 W. & S. 276. Goods levied on, under a fraudulent judgment are liable to attachments ; Ebert vs. Spangler, 3 Penrose & W. 389; Case vs. Case, 5 Clark 281; Yelverton vs. Burton, 26 Pa. 351.
   The Supreme Court affirmed the decree of the Common Pleas on April 27, 1885, in the following opinion:

Per Curiam.

All the assignments of error are to the refusal of the Court to sustain the exceptions to the report of the Auditor. An examination of the whole case convinces us that the Court was right. It was. admitted before the Auditor that the judgment in favor of Barrett was confessed for the purpose of defrauding the honest creditors of the defendant therein, nor was it seriously contended that it was based on any valid consideration. Tt was therefore properly postponed in the distribution and the money given to the second execution. AVhen a person confesses a fraudulent judgment in which he has waived the benefit of the law exempting three hundred dollars worth of property from execution, he is in no condition to claim three hundred dollars out of the proceeds of the sale. Although the judgment be invalid as to his creditors who seek to avoid it, yet as to him it remains in full force.

Decree affirmed, and appeal dismissed at the costs of the appellants.  