In re the Appropriation of the Money Arising from the Sale of the Real Estate of Goswiler

The opinion of the court, which contains a detail of the material facts of the case, was delivered by Huston, J.

A preliminary point in this case, wás this: The decree Of the cburt was made On the 12th of April, the second day of May following, was Sunday, and the appeal was entered on Monday the third of May. The act of assembly, of the 16th of April, 1827, Purdon, 476, Says, if any person shall consider hirtisélf aggrieved, by such decision, he may appeal to the Supreme Court, “within twenty days after such decision.” Without recurring to all the decisions on the subject of computation of time, it may be sufficient tb say, that whenever; by a rule of cdürt, or an act of the legislature; a given numbfer of days are allowed to do fen act, 'or it is said an act may be done within a givfen number of days, the day in which the rule is taken, or the decision made is excluded, Sims v. Hampton, 1 Serg. & Rawle, 411 , and if one or more Sundays occur within thetime, they are counted, unless the last day falls on Sunday, in which case the afet may be done on the next day. This construction has been so universally settled in courts, and in cases so similar to the one in (question, that we think the rule ought to extend to cases Under this act; and the general rule, we think, ought not to be questioned, fespecialty as it is doubted whether We could substitute a better one in its place.

The Pennsylvania Agricultural and Manufacturing Bank, on the 30th November 1820, obtained a judgment against C Poor-man, drawer, and John Goswiler, endorser for six hundred and thirty dollars, twenty-five cents. By an act of assembly of this state, it had been provided, that the draWer and endorser of endorsers of a note, might be joined in the same suit. This action had some peculiarities which distinguished it from other suits for debts against several debtors, for there might be judgments for one and against another. On this judgment a fi.fa. issufed to Pug. Term 1821, which is státed tb have been levied on personal property, &c. (of Goswiler it is said,) but we liaye not the Writ of return.

On the 29th of July, 1821, C. Poorman, obtained a rule to show cause why this judgment should not be opened as to him, Poorman, and the proceedings were stayed in the meantime as to Poorman. On what allegation this rule was obtained, Wé know not. On the 17th February, 1827, this rule was discharged, and then the property levied on, was, it is stated, Sold and applied to former levies. To Ppril Term 1827 an alias fi. fa. issued, and was levied on a house and lot, &c. in Mechanicshurg, as the property of Poorman. It may be remarked here, that a great many judgments had been obtained before this one, against Goswiler. We have next the following entry from the docket: “17th November, 1828; Upon motion on behalf bf C. Poorman, and it ap péaring that he had satisfied this judgment to the Bank, under an agreériierit, by Which the judgment against Goswiler, should stand *202 revived for his Use; and it also appearing to the court that the debt for which the said judgment was obtained, was' the proper debt of the said Goswiter, and that said Poorman was only sure-» ty for the same, the Court vacate the levy made on the estate of the said Poorman on this execution, and direct the original judgment against Goswiler to stand revived for thé use of the said Poorman. See paper filed.” This paper we have not, but we are told it is an agreement between Poorman and Goswiler.

On the 10th December 1828, Mr. Penrose, for Atwood, a judgment creditor, obtained a rule to show cause why this assignment to Poorman, should not be set aside. A rule was entered to take depositions.. On the 15th of May, 1829, this rule was discharged.

A scire facias issued to January Term, 1829, to revive this judgment. Jacob Garret had brought suit to August Term, 1820, against John Goswiler, debt on note under seal, and a refer ence and report in this suit, was made on the 21st day of February, 1821, for the plaintiff for two hundred forty-one dollars and thirty-six cents. The defendants appealed, and in January 1825, withdrew his appeal, when this report became an absol|te judgment. ■ . ■,

Some real, property of Goswiler had been sold on, the 9th of January, 1830, and the question was, whether Poorman as owner of the Bank’s judgment decreed to be assigned to him, or this latter judgment was entitled to the money. It was contended that-the lien of this first judgment was gone under the authority of Betz’s Appeal, 1 Penn. Rep. 271 and Commonwealth v. Barker, 2 Penn. Rep. 232, and a part of the court were of that opinion, but others doubted, on the idea that the rule in 1822 stayed all proceedings, and that no scire facias could then issue: and as the' Chief Justice did not set in the case, we have considered' it in another point of view. The right of a surety to be substituted for the plaintiff, and to hold the judgment against the principal, where' the surety has paid the debt, has been often settled in this and oth-» er courts. There must, however, be some limitation to it. In this case, it is denied that Poorman was surety, and that he is entitled to be substituted if he were.

From inspection of the suit on the docket, it would appear' that Poorman was the debtor — he was the drawer, and Goswiler the endorser. It is much stronger than the case of a man being the first named in a bond, it is prima facie evidence that he was the debtor and not the surety. To entitle him to substitution merely to facilitate his recovery against Goswiler, I agree that Goswiler’s admission in the paper filed is good evidence, but not as against other creditors. The rule taken by Atwood and that rule feting .discharged will be Conclusive to Atwood, but not as to other *203 creditors, who had no notice of that rule,. Stahl v. Jarret, 2 Rawle, 454 ; 2 Des. Rep. 104 . The party claiming to be substituted must always prove that he was a mere surety. Kenedy v. Gibbs, 2 Des. Rep. 380 . But it does not appear whether this point was made in the Common Pleas; we rather think'not, or dispositions would have been taken or an issue directed.

Can a surety put himself on the record expressly as principal, and after several years, and many judgment creditors have acquired rights, apply, and have his situation and character changed, so as to affect them ? Doorman ties up this judgment five years by a rule, he then saw the docket and that he was represented to the world as the real debtor, and not the surety. If Goswiler had paid the debt, or it had been levied from Goswiler’s property, he could have been- substituted for the plaintiff, and by this judgment have covered Doorman’s property, or have taken the proceeds of it from Doorman’s creditors; and when Doorman pays it, he claims it from Goswiler’s creditors. This right of substitution is an equity, but an equity must be managed fairly, it must not be this or that as suits the parties. When he drew the note, he represented himself as the debtor, and Goswiler as his surety. On this idea, the Bank discounted the note, and he could not, as against the Bank, deny this, and claim that notice of non-payment should be given to him. Bank of Montgomery v. Walker, 9 Serg. & Rawle 129, Why then after being sued, and appearing in the character of principal, on the record from 1820 till 1828, shall he be permitted to deny all this to the injury of others. In Monroe v. Wallace, 2 Penn. Rep. 173, we have a case where a man who really paid off a judgment against another > had no right to be substituted for the judgment creditor, because his conduct exhibited a design to deceive, and defraud others. Although it was strenuously insisted and perhaps was true, that he intended no wrong, but was to hold the land till he was paid; and he reconveyed under the mistaken notion, that having paid the debt to Monroe he would be substituted in his place, and succeed to his rights.

Erb’s Appeal, 2 Penn. Rep. 296, establishes a principle which may be applied here, viz: that it is not always enough to entitle a party tobe substituted, or to the right of. substitution, that such person has paid off a prior judgment, but it must also appear, that such person applying for such 'rights of substitution, has a greater equity than those who oppose it. And in 4th John. 546, Chancellor Kent, whose decisions and expressions in some cases would seem to have carried this right further than any who had gone before him, (except decisions under the civil law) says: “The-benefit of substitution is only to be applied in a clear pase, appearing from the proceedings in the cause.”

We think the case before us does not present a clear case, and if *204 it could be made clear by testimony, that would not still entitle Poorman to be substituted as surety, to the injury of other judgment creditors, after he had for eight years appeared on the records of the county, as the real debtor.

The decree of the court of Common Pleas is. reversed, and this court decree, that the judgment in favor of Garret is entitled to be paid out of the proceeds of the sale of the real estate of John Gos-, toiler, in court fpr appropriation,

Decree reversed.