Armstrong's Appeal

The opinion of the Court was delivered by Sergeant, J.

The supplementary Act of the 26th of March 1827, was enacted for the purpose of restraining the practices which had crept in under the Act of the 4th of April 1798, of constructive revivals of judgments by the issuing of execution, or by stay of execution, or of dispensing with revivals because the money was payable in futuro, or on a condition or contingency attached to a confession of the judgment, in all which cases it had been held by the court, or contended by counsel, that the lien would continue without issuing a scire facias within the five years. This Act also *355 altered the date from which the revival was to be reckoned, doing away the relation to the return day prescribed by the Act of 1798, as the time from which the five years were to commence. Another 'and most material object of the Act of 1827 was, to regulate revivals by the agreement of the parties, concerning which nothing had been said in the Act of 1798, but which had become a common usage. It therefore prescribes precise and positive provisions as to them, pointing out the mode in which they shall be authenticated, the parties competent to enter into them, and the time for which the lien shall, in that case, endure; and in the close of the third section directs, that no order or rule of court or other process or proceeding shall obviate the necessity of revival in the manner prescribed. It is obvious from comparing the two Acts together, that the Legislature intended to provide by express enact-me'nt, for every case that should occur, and to preclude thereafter interpretative and constructive revivals, and all other modes that should not conform to the precise directions of the Acts, in order that they might terminate the doubts and litigation that had arisen, and put liens by judgment on such a footing, that parties as well purchasers and others interested might have a clear and certain guide to follow in relation to their effect on heal estate. It is the duty of the court to construe the Acts according to their obvious design. A departure from this would create again a host of questions for dispute, mischievous to the community, and calculated to subvert the wholesome end which was in view when the supplementary Act of 1827 was passed.

This Act enacts, as to revivals by agreement, that they shall be “ by agreement of the parties and terre-tenants, filed in writing, and entered on the proper docket.” That has not been done in the present case. The agreement of the 4th of June 1841, was signed only by Beckwith, the.defendant in the prior judgment, and not by Armstrong, who had become the owner by a conveyance from Beckwith after that judgment, and whose creditors now contest the lien of this revival. But it is said, that Armstrong’s deed was not recorded, and the plaintiff ought to be excused for not making him a party, because he had no means of knowing from the record of deeds, the existence of such a conveyance from Beck-with. The answer is, that he has chosen to risk this. If he meant to be secure at all events, he might have issued a scire facias within the five years, and had it served on Beckwith and also on the occupiers who were then in possession as tenants of Armstrong, and who, it is to be presumed, would have given him notice, because it was their duty to do so; but whether they would or not, such service is by the second section of the Act of 12th of April 1798, made an effectuál service as far as regards the terre-tenants. The terre-tenant or owner at the time when a revival is sought, holding under a conveyance from the defendant, is the person most interested in the proceeding to obtain it, the defendant being *356 merely nominal, having parted with his interest. In the second section of the Act of 1798, the terre-tenant is the person first named on whom the writ is to be served, which shows that his connection with the revival was deemed of primary importance ;■ and in the same spirit, by the Act of 1827, his consent in writing, together with that of the party, is made essential in a revival by agreement. Here neither Act has been complied with: the attempt to revive by agreement fails, for want of the parties required by the Act, and such failure is not to be dispensed with by the allegation of difficulties or apparent impracticabilities in discovering the owner, when they could have been avoided by resorting to the scire facias, in which every case is provided for that could occur, by service on terre-tenants or occupiers, or where there are no occupiers, and the defendant or his feoffees, their heirs, executors or administrators cannot be found, by proclamation in open court at two succeeding terms. We are, therefore, of opinion, that the lien of the judgment of 1841, not being duly revived, was lost, and that the expiration of the lien may be objected to by the lien creditors of the grantee, as well as by the grantee himself; and that in consequence of the expiration of such lien, the other .judgment creditors, by the enactment of the second section of the Act of 4th of April 1798, have a priority for their liens.

The next question is, whether the bail for a stay of execution has a right to substitution 1 We have held in Burns v. The Huntingdon Bank, ( 1 P. R. 395 ), and Pott v. Nathans, ( 1 Watts & Serg. 155 ), that where the interposition of the bail is the means of hindering and delaying the payment of the debt, such bail has less equity than one who has been a prior surety. The principle of those cases is, that bail who intervenes in order to hinder execution, has no equity against other persons that may have been injured by the stay of execution. That principle seems to apply in the present instance. The purpose for which this bail was entered was to delay and postpone execution. This may have prevented a payment by the debtor or out of his funds. Substitution is a matter of benevolence and equity, and is sought, in this case, in order to acquire a preference. As between the bail and the principal debtor, there would, perhaps, be no difficulty: but regard is always had, in these questions, to third persons whose right may be affected by such substitution. In the case of The Bank of the United States v. Winston's Executors, (Brockenbrough’s Rep. 254), where one had become bail to obtain a delay of execution under a special Act of Assembly, and asked substitution, C. J. Makshali, suggested, that “ the doctrine of subrogation or substitution was confined to sureties, and had never been applied to á mere volunteer. If an assignable instrument be transferred, its obligation at law and equity remains. If a security not assignable be discharged by a surety whom it binds, equity keeps it in force, and puts such surety in the place of the original creditor. But, I *357 think, there is no case in which this has been done in favour of a person not bound by the original security who discharges it as a volunteer. I will not say that it may not be done, but if it may, equity will consider all the circumstances and impose equitable terms.” Considering that the substitution sought for in the present case will trench on the claims of the other judgment creditors, and that the bail are persons who came forward and procured a delay of proceedings in favour of the defendant, we think the substitution ought not to be admitted.

Decree reversed so far as respects the judgment of Wilson, and so far as it allows substitution to M’Garvy, and affirmed for thé residue, and record remitted that distribution may be made accordingly.