fess judgment, signed by Jos. S. Nichols, and was entered at once in the judgment docket, as authorized by the Act of March 23, 1853, applying to Chester and other counties, (Purdon 823, pl. 22,) and the judgment so entered was then indexed in the judgment index, as required by the Act of Assembly. It appears that the initial letter S. was written so small in the signature that it escaped the attention of the prothonotary, and the judgment was entered against Joseph Nichols, and so indexed. The entry stated the defendant as of Coatesville, where it appears all parties in interest reside. The next judgment is that of Frederick A. Bickel. This judgment was also entered on a bond and warrant of attorney, and was entered in like manner in the judgment docket against Joseph Nichols, without naming his residence and omitting the initial letter S., but the judgment thus entered was indexed against Joseph S. Nichols. Both these judgments were subsequently revived against Joseph S. Nichols, and so docketed and indexed. The auditor in his first report refers to the judgment held by Bickel as having been originally entered against Joseph S. Nichols, but he corrects this in his report on the exceptions, and there states that it was entered against Joseph Nichols.

ment is rightly entered. (Wood v. Reynolds, 7 W. & S. 406; Ridgway, Budd & Co.'s Appeal, 3 H. 177; Bergner's Appeal, 7 Nor. 120; Esther Hutchinson's Appeal, 11 Nor. 186; Peck's Appeal, 11 W. N. C. 31; King v. King & Miller, 2 Ches. Co. Rep. 45; Trickett on Liens, vol. 1, Sec. 231.

In the case before us, however, Frederick A. Bickel, the holder of the second judgment, is not in position to contest the right of Perkins & Miller, the holders of the first judgment. In the entry of both judgments the initial letter S. in the defendant's name, is omitted, and in this regard they are on the same footing. Their respective judgments were originally entered against Joseph Nichols, not Joseph S. Nichols, and were revived against Joseph S. Nichols. It is true that the prothonotary in indexing the judgment of Bickel, indexed it against Joseph S. Nichols. This in itself was an error of the prothonotary. There was no such judgment to index. He was indexing a judgment entered on the docket against Joseph Nichols, and could properly, in the index, only refer to that judgment. The purpose of the index where a separate judgment docket is kept, as in this county, is to give information of the entry of judgments in the docket, and to guide persons making searches to the place where they are entered. The index of this judgment of Bickel would simply direct persons making searches to a judgment against Joseph Nichols, not one against Joseph S. Nichols.

It is undoubtedly the general rule that

the omission of the middle letter in the name of a defendant in the entry of a judgment is fatal to the lien as against subsequent judgment creditors, not having actual notice, and whose judgments are properly entered. It is the duty of the judgment creditor to see that his judg

Whatever might have been the rights of Bickel as against Perkins & Miller, had

S. Nichols, he certainly cannot here claim that his judgment against Joseph Nichols shall be paid in preference to Perkins & Miller's entered in the same way.

There are no other interests involved than those of the holders of these judg

ments.

We are of the opinion that they

should be paid in their order so far as the purchase money will extend, and the exceptions to the return of the sheriff are dismissed.

A sci. fa. to revive the lien of a judgment must substantially identify the original judgment by parties, date and amount.

The assignee of a part of a judgment sought to revive the lien, to the extent of the equitable interest, by sci. fa., reciting the judgment in the name of the legal, to the use of the equitable plaintiff, and naming the amount assigned. HELD, that the recital of the amount was a fatal variance, and that the judgment was not revived, in whole or in part.

Where the legal plaintiff is properly named, the addition of the name of the equitable plaintiff may be treated as surplusage.

Where the sci. fa. recite the original judgment against the defendant as against the defendant and his assignee, "terre tenant in possession, defendants," the variance is more important; and coupled with a variance in amount has weight as indicating that the sci. fa. and the original were based upon different transactions.

Where the equitable owner of part of a judgment seeks to revive it, to the extent of the equitable interest, the equitable owner of another part cannot, by a suggestion filed extend the lien to both.

Nor can the defendant extend the lien, by appearing to the sci. fa. and confessing judgment, after five years have elapsed and the land has been sold by an assignee.

The equitable owner who issued the sci. fa. and subsequent judgment creditors, have standing to object to such proceeding, and it is not going behind the record for an auditor to enquire into it to determine the question of lien

Exceptions to report of auditors to dis

tribute.

on, one in the name of the State Bank for the use of Mary Dietrich, No. 42 to August Term, 1882, and the other in the Bank's name for the use of Catharine Creamer, No. 43 to August Term, 1882. These writs are more fully described hereafter. Upon these sci. fa's judgments were entered, on May 27, 1882, for want of an appearance, for $1227.18 and $323.26 respectively. No further action was taken by any of the equitable plaintiffs until October 7, 1882, when Fleming & Mc-, Carroll, attorneys for Christian Ferrance et al., filed a suggestion in No. 42, August Term, 1882, upon which a second judgment was entered of $16,532.95, with interest from April 26, 1880, in favor of certain plaintiffs in specified sums. May 11, 1883, another suggestion was filed by attorneys for all the other plaintiffs, except one, marking portions of the. judgment of October 7 to their use also. On October 7, 1882, the real estate, from which the fund in question arises, was sold by order of court, and the sale was confirmed on November 20, 1882. On April 26, 1883, Messrs. Wolf and Ott were appointed auditors to distribute the fund,

On

On June 4, Geo. Winters filed a paper in No. 42, August Term, 1882, appearing to the sci. fa. waiving exception to any va

riance between that writ and the record upon which it was issued, and also to previous entries of judgments thereon, and confessing a third judgment of revival for $16,632.95 with interest from April 26, 1880, for the use of the several equitable owners of the original judgment according to their respective interests as set out in the assignment of Oct. 12, 1878.

The State Bank held a second judgment against Winters for $10,264, entered October 12, 1878, which was a lien on his real estate when the same was sold in October-November, 1882, and claimed the fund, which amounted to $7,141.38, on the ground that the lien of No. 145,

August Term, 1877, had been lost by failure to revive. Mrs. Dietrich and Mrs. Creamer claimed to be paid in full, asserting that they had revived that judgment for the respective interests therein by sci. fa's. 42 and 43, August Term, 1882, and the other equitable plaintiffs claimed that the entry of judgment on October 7, 1882, for $16,532.95, and the confession of judgment by Winters on June 4, 1883, revived the original for the full balance due for the benefit of all, and that the fund should go to all, pro rata, to the exclusion of the second judgment of the Bank. The auditors awarded the fund to the Bank, holding that sci. fa's. 41 and 43, August Term, 1882, and the subsequent proceedings referred to, did not continue the lien of No. 145, August Term, 1876, either in whole or in part, and the correctness of this ruling is the matter for determination.

Several questions of some difficulty are presented by these facts, and in reaching

a conclusion we have been much assisted by the able report of the auditors and the arguments at bar. We will consider these questions in what seems to us the most convenient order.

(1) What effect, if any, is to be given to the confession of judgment entered June 4, 1883? It is urged that it must be treated as curing any defect in the sci. fa., though the judgment for $16,532.95, entered October 7, 1882, of which this confession is meant to be a ratification, was entered against the protest of Mrs. Dietrich's counsel, who claim the right to revive for her separate interest alone, and denies that the sci. fa's he issued have any defects to be cured, and although the confession was obtained by counsel representing other claimants than Mrs. Dietrich. But we think this protest is entitled to consideration. No other of the persons to whom the original judgment was assigned seems to have joined in the proceedings begun by Mrs. Dietrich and Mrs. Creamer, and, if they had the right to proceed separately, and have by diligence acquired priority, certainly the defendant could not be allowed, upon his own motion merely, or upon that of other persons, to deprive them of precedence. Can the Can the

State Bank, a subsequent judgment creditor, also object to the confession, as an attempted ratification of the judgment of October 7, 1882, or considered as an independent act? Under the circumstances, we think it has a standing to be heard. It must be remembered that the defendant's property was sold in 1882; the sale was confirmed on November 20 of that could not be disturbed after that date, at year, and we think the rights of creditors latest. The defendant's title was then transferred to the purchaser, his land was then turned into money, and the liens upon it were then divested and became claims upon the fund. If the Bank's judgment was then the first lien, or prior to all others except Mrs. Dietrich's and Mrs. Creamer's, it certainly can be heard to object to a proceeding, the result of which might be to take from it a fund, to If the lien of the original judgment was part or all of which they were entitled. gone, in whole or in part, by reason of a failure to revive, it surely could not be restored, as against the Bank, by the defendant's declaration that he wished it to continue, especially if, as we think, the rights of the lien creditors were fixed at latest by the confirmation of the sale. Suppose no fi. fa. at all had issued; in that case the lien of the original judgment, would, of course, have ended, as against the Bank, when the five years expired, (Bank v. Fitzsimmons, 3 Binn. 342; Styer's Appeal, 6 H. 86; Fulton's Estate, I Sm. 204; Mellon's Appeal, 15 Nor. 478; and, as against it, no subsequent action of the defendant could have restored it. stored it. A similar result must follow if the sci. fa's which did issue were not effective to continue the lien; if they did continue it, the defendant's confession of judgment was unnecessary, for the mere issuing of a proper sci. fa. without service or judgment thereon would be sufficient for that purpose (Lichty v. Hochstetter, 10 Nor. 444; Kirby v. Cash, 12 Ib. 505;) if they did not continue it, he could not take away from the Bank a legal advantage to which it had become entitled by reason of the negligence of prior judg ment creditors. The confession is really an attempt, on behalf of certain parties in interest, to amend defects which they admit to exist in sci. fa. No. 42, August Term, 1882, considered as a sci. fa. to revive the whole judgment; for it was not needed to continue the lien of the original if the sci. fa. had been good (see cases

above cited ;) and, for the reasons stated, we think the attempt must fail.

(2) This brings us to the second question, viz.: Did the sci. fa. issued by Mrs. Dietrich, and the subsequent proceedings thereon, excluding the confession of judgment, avail to continue the lien of the original in favor of all the persons to whom it was assigned? Here, again, it is urged, that the Bank cannot object to any irregularity of the proceedings, or the auditors go behind the judgment of revival of Octobeṛ 7. But the question is not of this character; it is a question of lien, whether the judgment on the sci. fa. is the original judgment so continued as to preserve its priority, or whether the latter has lost its place by lapse of time without revival. This can only be determined by inspection of the record, and such an examination it is clearly proper for a subsequent judgment creditor to require, and for an auditor to make. (Edward's Estate, 2 Pears. 58-9.) It is necessary, therefore, to consider the sci. fa. issued by Mrs. Dietrich, and determine its effect.

A sci. fa. to revive must substantially identify the original document as to parties, date and amount. Its purpose is to give notice that the lien of the original is to continue, and the original must, therefore, be clearly pointed out. It is not enough to correctly name the parties, or the parties and the date, or the parties and the amount, alone, for, in either case, it might well be that another judgment in another proceeding might be meant; but where parties, date and amount together appear with substantial correctness, it is held that sufficient marks of identity are present. The following cases show the necessity for correctly reciting the original judgment: Brannan v. Kelly, 8 S. & R. 481; Black v. Dobson, 11 Ib. 94; Walker v. Pennel, 15 Ib. 68; Williard v. Norris, 2 R. 62; Arrison v. Com., 1 Watts 380; Eichelberger v. Smyser, 8 Watts 181; Grennell v. Sharp, 4 Wh. 344; Dougherty's Estate, 8 W. & S. 189; Richter v. Cummings, 10 Sm. 441. The necessity for a definite legal rule on this subject is apparent. The question being one of notice, if no rule existed, each case would stand by itself, and different courts would certainly hold different views as to what was sufficient. Even as it is, there is some room for uncertainty, since substantial correctness in the three essentials

,,

is all that is required; but this qualification must exist to prevent valuable rights from being sacrificed to technical and formal objections. What now is the case here? As to the parties, in the original judgment was in favor of the State Bank against George Winters; the sci. fa: describes it as recovered by "the State Bank for the use of Mary J. Dietrich, against "George Winters, and Peter K. Boyd, assignee of George Winters, terre tenant, in possession, defendants. As to the date, the number and term correctly recited, and no variance in this respect is alleged. As to the amount, the original was for $28,120.72, and the sci. fa. describes it as recovered for $1300.00, in this and the other particulars exactly following the praecipe. These are certainly variances, and if they are substantial we must hold that the lien does not continue. It cannot be doubted that on the plea nul tiel record, they would be fatal; but we hesitate to apply so strict a rule as there prevails in favor of a subsequent judgment creditor whose money was not advanced after the sci. fa. issued. He has done nothing on the faith of the record; and asserting a strict legal right without equity, cannot complain if we insist that his right shall clearly appear as a matter of substance and not of form alone. When it does not appear, however, he is of course entitled to its benefits.

The first variance complained of we regard as of no consequence. The legal plaintiff is properly named in the sci. fa. and the addition of Mrs. Dietrich's name, we think, may be treated as a surplusage. The second variance is of more importance, but we would hesitate to hold it fatal if it stood alone. Coupled with the third, the difference in the amount, it has more weight, as indicating that the sci. fa. and the original were based upon different transactions; but we express no opinion on its affect, because we cannot avoid the conclusion that the difference in amount must be regarded as substantial. We are now considering whether this sci. fa. can be held to revive the whole balance due on the original, and in that aspect of the case, we are forced to say that the variance is fatal. The original to be revived was for $28,120.72; the sci. fa. describes its original as being for $1300.00. What connectian can be discovered between the two? Nor is this a mere clerical mistake, for when judgment is taken, it is for $1,229

18, reached by credit and calculation upon a principal of $1300.00, and in no way referring to the larger sum. If sci. fa's to revive must substantially recite the amount of their originals, this one fails to do so, and the lien of its original was not contiued-at least, not as to the whole amount.

If this variance is fatal, its effect could not be avoided by the judgment entered on October 7, 1882. This presents the anomaly of a judgment for $16,532.95 on a sci. fa. which recited an original of only $1300.00, on which there was a credit of $341.06, and upon which there was already a judgment of $1229.18. Moreover, this judgment of October 7 was entered upon the suggestion of counsel for other claimants than Mrs. Dietrich, and against the protest of her own attorney. If she had a right to a separate sci. fa. for her own interest, certainly other claimants could not interfere with it after judgment; if she had no such right and her writ must be held to be upon the whole judgment for the benefit of all, we have already decided that the sci. fa. she did issue was bad and failed to continue the lien of the whole. It certainly could not, in any event, support a judgment for over $16,000.00. In In addition to this the judgment of October 7, 1882, was unnecessary, if sci. fa. 42, Aug. T. 1882, was good, for, as we have seen, the mere issuing of a proper writ continues the lien.

We say nothing as to our power to have amended there proceedings, if applied to in time. Such an application was made on the argument of these exceptions, by the counsel who directed the judgment of October 7, 1882, but we think it is too late. The lien, considered as a whole, is gone, the land is sold and the fund in court. How can we now amend substantial variances, when the effect would be to alter valid existing rights to the money? Neither is any amendment asked by Mrs. Dietrich; and, we repeat, if she had a right to separate a sci. fa., we could not, upon the motion of others, amend away her priority. The probable explanation of this singular record is, that all the equitable plaintiffs except Mrs. Dietrich and Mrs. Creamer were negligent and allowed the five years to elapse without action, and that, afterwards becoming aware of their situation, they endeavored to avail themselves of a writ which was not intended for their benefit, and, hence, was

not so framed as to support their right.

Another argument may be briefly notiticed. It was urged, that the mere issuing of a sci. fa., without more, continues a lien, and that, as a sci. fa. issued here, it is enough, although the judgments upon it are admitted irregular. This supposes that the issue of any sci. fa. is sufficient, but it need hardly be said that the cases, which hold the issuing of the writ to be enough, mean a proper writ. If it is substantially defective it fails.

(3) The final question is, whether Mrs. Dietrich and Mrs. Creamer had the right to issue separate sci. fa's for their respective interests, and, if also, whether they issued proper writs. The case of Peterson v. Lathrop, 10 Cas. 223, decides that an equitable plaintiff may issue a sci. fa. upon the original judgment claiming to recover only his interest therein, and that, in such case, the judgment of revival should only be for the amount he claims. It does not decide that separate sci. fa's may issue for each interest, although the language of the court indicates that the other equitable plaintiffs might afterwards take some action upon the original judgment. But the language is as much applicable to an execution thereon for their interests as to a sci. fa. to revive, and the point was not raised by the facts or necessary for the decision. Neither is it neccessary here, for the reason that these two writs are quite as objectionable, when considered as an attempt, to revive separate interests, as we have found one of them to be considered as an

They are

attempt to revive the whole. just as varient in one respect as in the other. They do not, as in Peterson v. Lathrop, correctly recite the original, the interest of the equitable plaintiff therein, and claim to recover this interest and

share, so that the identity of the original clearly appeared, although the claim of the equitable plaintiff was limited to his own interest therein; but are in the common form, based on alleged originals of $1300 and $340 respectively, and, for the reasons already given in considering Mrs. Dietrich's writ under another aspect, cannot continue the lien, even in part. Both writs were alike and neither is good. The exceptions are dismissed, the report is confirmed, and distribution decreed in accordance therewith.