Schaffer v. Cadwallader

• Decision Date: 01 January 1860
• Parties: Schaffer versus Cadwallader.
• Court: Pennsylvania Supreme Court

Page 126

36 Pa. 126

Schaffer versus Cadwallader.

Supreme Court of Pennsylvania.

CERTIFICATE from the Court of Nisi Prius.

E. K. Price, for the plaintiff in error.

H. Wharton, for the defendant in error.—No execution on a judgment against the city can be levied on its real estate. At common law, the only process against a corporation aggregate was by distringas or mandamus: Bac. Abr. tit. Corporation, E. 2; 1 Kyd on Corporations 270. In modern times, this has been altered in respect to trading corporations: Bushel v. Commonwealth Insurance Co., 15 S. & R. 176. But the same motives of policy do not exist in the case of municipal corporations; possessing, from the earliest times, the character of quasi sovereignty, and exercising some of the most useful and important functions of government, to subject them to the ordinary process of law, for the enforcement of a judgment, would be manifestly unsuitable. It would be monstrous, for instance, to permit a creditor to seize and sell the court-house, jail, or other public buildings of a town.

The early acts in Pennsylvania, which authorize the sale of lands for the payment of debts, do not, in express terms, include corporations of any kind: Act of 1700, Bradford's Laws, Ed. 1714, p. 10; Act of 1705, 1 Smith's Laws 57. The first act which provided directly for proceedings against corporations, was that of 1817: 6 Smith 438. The general tenor of this act shows that it was intended to apply only to private corporations; and a very strong opinion to that effect was expressed in Robinson v. Jefferson County, 6 W. & S. 17. This was followed by an Act of 1828, authorizing process in the nature of a bill of discovery in aid of execution, expressly against private corporations: Pamph. L. 439.

This was the state of the law at the time of the passage of the Act of 1834: Brightly's Purd. 172. That act was prepared by the revisers of the Civil Code, and was intended to form part of a general system. And the prefatory remarks of the commissioners indicated their intention that all the sections of the act should apply to and embrace the city of Philadelphia, as though expressly named: Report of the Revisers 4-5.

The 6th section of the act provides, that if judgment be obtained against a county, the plaintiff shall have execution in the manner therein provided, "and not otherwise." The Act of 1836, relating to executions, provides for executions against corporations "not being a county, township, or other public corporate body." And in The Turnpike Co. v. Wallace, 8 Watts 317, it is said, that the words "other public corporate bodies" obviously apply to boroughs, cities, &c.

As, then, the city is not within the Act of 1836, it necessarily follows, that unless it be within that of 1834, in regard to counties and townships, no execution whatever can issue against it. But that it is within the Act of 1834, is well settled by authority: Monaghan v. The City, 4 Casey 208; Morgan v. Moyamensing, 2 Miles 397; Hewson v. Kensington, 2 Penn. L. J. 301; City of Erie v. Knapp, 5 Casey 174; Borough of Pottsville v. Curry, 8 Id. 444.

If, then, no execution can be levied on the land, are the judgments against the city liens upon it, so as to be payable out of the proceeds of a sheriff's sale, made under a subsequent encumbrance against the present or any future owner? It is submitted, that what is called the lien of a judgment on lands, means simply the present or future right of the...