#### Morley *v.*Elsbree.

In an action on the case for conspiracy, the declaration alleged that the plaintiff and defendants each held a judgment against the same party, that defendants’ judgment was paid, but they fraudulently conspired to cheat the plaintiff by inducing the debtor to enter an appearance on a sci. fa. issued upon plaintiff’s judgment so as to prevent judgment, and further induced the debtor to confess a revival of the judgment paid. Besides tending to establish the alleged conspiracy, the evidence showed that sale was made upon execution issued upon the plaintiff’s judgment, the fund referred to an auditor who awarded it to the judgment now alleged to be paid. The defendants claimed that this suit was a collateral attack upon a judgment. The court charged, in effect, that if the judgment was paid and kept on foot by the defendant for the purpose of defrauding the plaintiff, and the purpose was accomplished, the plaintiff could recover. Verdict and judgment for plaintiff. Held., that the judgment should be affirmed.

March 19, 1889.

Error, No. 44, July T., 1888, to C. P. Bradford Co., to review a judgment on a verdict for plaintiff in an action on the case for conspiracy, by J. Leman Elsbree against Abram Morley and Job Morley, at Feb. T., 1887, No. 202. McCollum and Mitchell, JJ., absent.

The declaration averred that Abram Morley, Job Morley and Luman Putnam, conspired and agreed to act and operate together, and aid and assist each other in cheating and defrauding the plaintiff out of his debt against Reuben Morley, in the following manner: On Aug. 17, 1882, plaintiff issued a sci. fa. on a judgment of $521.49, against Reuben Morley, for the collection of said judgment ; then defendants agreed with Reuben to have an appearance entered so as to prevent plaintiff from taking judgment on the return day, although they knew he had no defence; and defendants prevailed upon Reuben to revive a judgment defendants held against him but which had been paid in full, the defendants agreeing to give Reuben the amount of plaintiff’s judgment; the paid judgment was revived, and plaintiff thereby prevented from collecting his judgment. The defendants pleaded not guilty.

The evidence, besides tending to prove the alleged conspiracy, was to the following effect: A sale was made on execution issued upon the plaintiff’s judgment, the fund produced referred toan auditor for distribution, who awarded it to the Morley debt, as the result of litigation terminating in Ross & Elsbree’s. Ap., 106 Pa. 82.

The facts are stated in the charge of the court below, as follows, by Sittser, P. J.:

“Isaac Morley died on July 5, 1882, leaving to survive him nine children, among whom was Reuben Morley, who inherited real estate from his father of the value, as fixed by some of the witnesses, of about $900.00. At the time of the death of Isaac Morley, the father of Reuben, there were three judgments entered in the court of common pleas of Bradford county against Reuben Morley. One was a judgment of Abram and Job Morley, amounting, at that time, to about $4340.00; another, a judgment of Ross & Co., amounting *282to about $212.00; and another, a judgment of J. L. Elsbree, the plaintiff in this case, amounting to about $521.00.

“On Aug. 14, 1882, executions were issued by J. Leman Elsbree, and by Ross & Co., upon their judgment against Reuben Morley, and, on the same day, levy was made upon the interest which Reuben Morley acquired by descent from his father’s estate. But it seems that these levies were not entered upon the proper docket in the court of common pleas, as they should have been, in order to be legal notice, and, notwithstanding the levy, it was in the power of Reuben Morley to convey his land by deed, or to incumber it by mortgage. Abram Morley and Job Morley, after this, got their judgment revived, and Reuben gave a mortgage to Luman Putnam as collateral security for the payment of the judgment of Abram Morley and Job Morley against Reuben Morley, this judgment having been assigned by Abram and Job Morley to Putnam about the time the mortgage was given. It was in the power of Reuben Morley to give this mortgage to Luman Putnam as collateral security for the payment of this judgment. Asale of the property took place about Dec. 1, 1882, and a fund of $430.00 was produced by the sale, and an auditor was appointed by the court to distribute the money. There was a contest between these creditors, as to which party was entitled to the money. The money was awarded to the j udgment of Abram and Job Morley, for the reason that Reuben had given a mortgage as collateral security for it. The money was appropriated to the mortgage which had this judgment for its support, or foundation. If the judgment of Abram and Job Morley against Reuben was at this time a valid judgment, there was nothing wrong or improper in the conduct of these defendants. If that judgment' was a valid judgment at that time, they had a perfect right to take the proceedings which they did take. But it is claimed, on the part of the plaintiff in this case, that this judgment which Abram and Job had against Reuben had been 'paid in full before that time, and that the use of it as a foundation for this mortgage, and for the purpose of taking this fund away from the plaintiff, was a fraud upon the plaintiff, Mr. Elsbree, and the plaintiff claims the right to recover in this action, in consequence of that fraud. And at this point, we say to you that there is no evidence in this case which would justify you in finding a verdict against Luman Putnam. There is no evidence in the case to show, even if this judgment had been previously paid, that Luman Putnam knew it, or that he in any way did anything for the purpose, or with the intention, of defrauding Mr. Elsbrpe. So that, whatever view you may take as to whether this judgment had been paid, the evidence will not justify you in finding a verdict against Luman Putnam.

“ The plaintiff in this case relies chiefly upon the testimony of Reuben Morley, in order to establish his allegation that this judgment had been paid.. Reuben Morley testifies, and it seems to be the undisputed evidence in the case, that, in 1876, he was the owner *283of a farm in Burlington borough, and some of the witnesses put the value upon that farm at that time, as high as $5,000. You will remember what the testimony is upon that subject. It is claimed by the plaintiff that, when the levy was made upon this real estate of Reuben, in Burlington borough, upon this judgment of A. and J. Morley, that an arrangement was made between the plaintiffs and the defendant, that they were to sell the property and buy it in for as small a figure as they could, and that the judgment was then to be satisfied, and Reuben testifies that, by some arrangement, he was to have the privilege of selling the property, and that, if it brought more than enough to pay the judgment, the balance was to go to him. The record evidence in the case shows that this farm of Reuben Morley was sold, on Dec. 1,1876, for about $155. Now, upon the face of this transaction, in the absence of the evidence of Reuben Morley, it would appear that this farm was sold, that $155 was bid upon it, and that money would be appropriated, first to the payment of the costs of the sale, and the balance, if any, would apply on the first lien. After the sale, the purchaser would hold the property, and the balance of the judgment would remain a valid indebtedness against Reuben Morley, and any property which he might have at the time, or which he might afterwards acquire would be liable to be seized upon for the payment of the balance of the judgment. The defendants claim that that was all there was to that transaction, that they simply had a judgment against the property, and that, in the regular way, they sold it at sheriff’s sale, that they purchased it for $155, and took their sheriff’s deed, and that there was no arrangement whatever to satisfy the judgment. If that is the case, the balance of the judgment was still valid and remained so down to the time when it was used as a foundation for the mortgage, and they had a right to use it for the purpose of taking the fund that was raised by the sale of Reuben’s interest in his father’s estate, and your verdict should be for the defendant. [If, however, upon the other hand, you find there was an arrangement made, as testified to by Reuben Morley, by which he was to permit that farm to’ be sold for any sum they might choose to bid upon it, that they were then to satisfy the judgment, and that they did afterwards give him a paper agreeing to satisfy the judgment, or if, by the terms of the agreement, it was to be satisfied, then that was a valid and binding agreement, and if they, afterwards, with the knowledge that this-judgment had been paid, used it for the purpose of defrauding’the plaintiff, Mr. Elsbree, out of his share of the fund derived from the sheriff’s sale of Reuben Morley’s interest in his father’s estate, then the plaintiff would have a right to recover such damages as he sustained in consequence of their action.] [1]

“ This is simply a question of fact, to be determined by you, from the evidence in the case. You have heard the testimony of Reuben Morley, and of the other witnesses. You are the judges of their credibility. In passing upon their credibility, you may take *284into consideration the appearance of the witnesses upon the stand, the reasonableness or unreasonableness of the stories they tell, how their testimony is corroborated or contradicted by that of other witnesses, or by proven or admitted facts, or by their own statements, made in court, or at any other times. Reuben Morley testifies that there was an arrangement made between him and his brothers, by which the plaintiff was to be defrauded out of his right to this fund. The fact that he testifies to that is one which affects his credit. It is to his discredit that he comes into court and testifies to such a fact. Still, if he is corroborated, and if you think, from all the evidence in the case, that he is entitled to credit, you will give him such credit, and, if you think he is not, you ought not to give him credit. This is entirely a question for you. You must give it your best judgment, and arrive at such a conclusion as you think is right and proper, under the circumstances. [If you find that this judgment was paid, and was kept on foot by the defendants, for the purpose of defrauding Mr. Elsbree out of the fund raised by the sale of Reuben Morley’s interest in his father’s estate, that it was used for that purpose, and that by its use the defendants actually accomplished that purpose, then the plaintiff would be entitled to recover in this action such damages as he has suffered by' reason of this wrongful conduct of the defendants.] [2] If, however, you are of the opinion that that judgment was not paid, but that it remained a valid indebtedness, then, as we have already said, there was nothing wrong in the plaintiffs using it as they did for the purpose of acquiring that fund, and your verdict would be for the defendants. It is claimed, on the paid of the plaintiff, that Reuben Morley is corroborated to some extent in reference to the receipt, by the fact that this property, worth $4,000 or $5,000, was sold for a small sum of money, and that no attempt was made to bid it up to anywhere near its actual value. It is also claimed that he is corroborated to some extent by Mr. Estell, who testifies to some vague and indefinite recollection about his being at the prothonotary’s office with a writing which he desired to have filed in satisfaction of some judgment. Reuben testifies that he had this receipt at Mt. Vernon, New York, that he went there and got it, and put it in his pocket-book, and brought it to New York city, where he saw his son, Ira Morley, and showed it to him, that after a while he missed his son and the receipt, and that he has never seen the receipt since.

“ The son, however, goes upon the stand, and denies that his father showed him any such receipt, and says, further, that, instead of having any receipt, his father asked him to forge a receipt, which he says that he refused to do. Besides the testimony of the son, the defendants claim that Reuben Morley is contradicted in various ways.

“ If, under all the evidence, you find in favor of the defendants, your verdict will simply be ‘ we find for the defendants.’ But if you *285find for the plaintiff, you will find such damages as you think he has suffered in consequence of the fraudulent conduct of the defendants, Abram and Job Morley. The funds which was raised by the sheriff’s sale of the interest of Reuben Morley amounted to $430. If the defendants had not yet presented their judgment, and claimed this fund, it would have been appropriated, first to the payment of the costs upon the writ, or writs upon which the property was sold, and the balance would have then been appropriated, pro rata, to the judgment of Ross & Co., and J. L. Elsbree. The judgment of Ross & Co. was $212, and the judgment of Mr. Elsbree was $521, and it would be your duty to ascertain by calculation what share of this fund of $430 would have been applied upon Elsbree’s judgment, if he had not been prevented from obtaining the money, by the interference of Abram and Job Morley. The measure of his damages would be the amount of this fund that he was deprived of, that he would otherwise have obtained out of this money. The measure of his damages would not be the value of Reuben’s share of his father’s estate. This property was sold for $430, and if it did not sell for its full value, it was stricken down to J. L. Elsbee, so that he reaped the benefit of any deficiency, if it sold for less than its actual value.”

*The assignments of error*specified, .1, 2, the portions of the charge included within brackets, quoting them.

*John F. Sanderson*and *D’A. Overton,*with them *W. T. Davies,*for plaintiff in error.

The cause of action submitted to the jury, is not that alleged in the declaration. No question of ^combination between the defendants to cheat and defraud Elsbree and to assist each other in so doing, is submitted to the jury, nor any act done in pursuance of such combination; especially the alleged device of causing appearance to be entered for purpose of delay; the making of the revival pursuant to the conspiracy; and the bribe promised Reuben in consideration of his silence, to be paid in the event of the success of the conspiracy. All these elements of the cause of action alleged are passed over in the charge and the naked question is submitted to the jury: Did A. and J. Morley use a paid judgment for the purpose of defrauding Elsbree out of a fund raised by sheriff’s sale?

The decree of distribution finally determined the validity of the Morley judgment and its right to the fund which is now by indirection sought to be applied to the very Elsbree judgment upon which the contest before the auditor was made. It is now too late to try, by any means, the mere question submitted by the court below to the jury, viz: Whether the Morley judgment was in fact paid. Finnel *v.*Brew, 81 Pa. 362; Meckley’s Ap., 102 Pa. 536; Steinhauer *v.*Witman, 1 S. & R. 448.

It may be that a judgment or decree obtained by fraudulent practices may not be available to bar the rights of him upon whom *286the fraud was practiced. Such a fraud, however, must consist in something done by the successful party whereby a real trial or adversary decision has been prevented, as for example: Some fraud or deception practiced on the unsuccessful party by which he was prevented from exhibiting fully his case, or by which he was kept away from court, or the like. U. S. *v.*Throckmorton, 98 U. S. 61. But a judgment founded on a fraudulent instrument or perjured evidence, cannot be collaterally impeached. Ibid. 66. The fraud must be extrinsic or collateral to the matter tried, not inherent in the matter on which the decree was rendered. Ibid. 68.

March 25, 1889.

*H. F. Maynard*and *R. A.*Mercur, with them *I. N.*Evans, for defendant in error.

The question before the auditor was whether or not the Elsbree j udgment was the first lien upon the money raise by the sale. The question in this case is, did the plaintiffs in error conspire to cheat and defraud Elsbree, and did they succeed in so doing, and, if so, what damage did Elsbree sustain? These questions of conspiracy and damage were settled by the jury.

Elsbree is not estopped from recovery in this case by the issues adjudicated by the auditor. Kelsey *v.*Murphy, 26 Pa. 78; Williams *v.*Row, 62 Pa. 118.

Per Curiam,

This was a motion for a new trial under the guise of a writ of error. The court below ruled the law in favor of the defendants so far as they asked for instructions, and the jury found against them upon the facts. Under such circumstances, an argument here upon the merits is a waste of time. However embarrassing such a position may be, we cannot grant relief.

No error is apparent in the portions of the charge of the learned judge embraced in the assignments. It is a mistake to assume that the court ignored the matter of conspiracy, and placed the entire case upon the question whether the judgment had been paid. This is evident from reading over the portions of the charge assigned as error. While the technical word conspiracy is not used, the court distinctly refers to the facts which tend to show it. We find no error in the record.

Judgment affirmed.