utory provisions authorizing it. Here it is, in | nonappearance. Did the record and judg course, would be set aside regardless of the effect thereof on the plaintiff's position in court, as a matter of right and not as a mat its original character, in the nature of an ex ment disclose a fatal error, the judgment, of parte proceeding in rem to judgment of condemnation against the property bound by the foreign attachment; for, while it continues such, there is no appearance of the defend-ter of discretion. If defendant has permitted ant, no defense whatever pleaded, no issue joined, and no trial had. Frankel v. Satterfield, 9 Houst. 201, 19 Atl. 898; Wells v. Shreve's Adm'r, 2 Houst. 329; Nat. Bank of W. & B. v. Furtick, 2 Marv. 35, 51, 42 Atl. 479, 44 L. R. A. 115, 69 Am. St. Rep. 99; and the opinion of the court in banc, first filed in this proceeding. Remedy by attachment must be pursued in conformity with the terms of the law conferring it. Drake on Attachment, § 4; Reynolds v. Howell, 1 Marv. 52, 59, 31 Atl. 875; Penna. Steel Co. v. N. J. S. R. R. Co., 4 Houst. 572, 578; Rev. Code 1915, § 4137. The method of ascertaining amount due on interlocutory judgments is provided for by Rev. Code 1915, § 3729. plaintiff to obtain judgment against him by default, the defendant may, in common-law actions, on showing a sufficient legal excuse therefor, have the default judgment set aside and the proceedings restored to that stage of the case which will permit a trial of the merits. Where a judgment is set aside, if the plaintiff can recover anew, a new judgment terminates the cause. It seems that in Pennsylvania a practice unknown to the common law has grown up whereby the judgment is opened to permit a trial, but on the termination of that trial, if the judgment be in favor of the same party the old judgment is closed and on the order of the court stands and is for amount determined by the last trial, but the courts have uniformly held that where a judgment is so opened it remains as security for whatever may be found due on retrial, but in all other respects the subsequent proceedings are as if no judgment had The maxim "expressio unius est exclusio ever been entered in the cause or proceeding. alterius" controls and prevents the judgment Carson v. Coulter, 2 Grant, Cas. (Pa.) 121; in a foreign attachment proceeding from be- Sossong v. Rosar, 112 Pa. 197, 3 Atl. 768; ing opened in any manner other than that Harris v. Harris, 154 Pa. 501, 26 Atl. 617; prescribed by statute. It also prevents the Long v. Morning Star, 212 Pa. 458, 61 Atl. disproving of a claim after judgment in any 1007; Farmers' Loan & Trust Co. v. Killmanner other than as provided by the stat-inger, 46 Neb. 677, 65 N. W. 790, 41 L. R. A. ute. District Township v. Dubuque, 7 Iowa, 222, and note; Harbaugh v. Butner, 148 Pa. 262, 275, 276; Scott v. Ford, 52 Or. 288, 296, 97 Pac. 99; State v. Gas Co., 15 Ariz. 294, The method for the disproving after judgment of the claim of the plaintiff in a foreign attachment proceeding is provided for by Rev. Code 1915, § 4135. 138 Pac. 781; New Haven v. Whitney, 36 Conn. 373, 375; In the Matter of the Attorney General, 2 N. M. 49, 56, 57. An analysis of the cases and text-books shows that judgments are opened or vacated in three instances: (1) Where the entire proceedings and judgment rendered thereon are null and void. (2) Where a judgment may have been paid or otherwise discharged since its rendition and the judgment remain unsatisfied. Lofland v. McDaniel, 1 Pennewill, 416, 41 Atl. 882. (3) Where a judgment may be set aside, vacated or opened, as a result of proceedings had: (a) For material defects. (b) For irregularity. (c) Upon excuse and as a favor. The first two are applicable to all judgments, the third to default judgments only. No attack has been made on the judgment for a material defect therein or error in the record other than the allegation of nonproduction of letters, which is overcome by the record and the previous determination by the court; or for irregularity. The basis of the application must be found, if at all, under the third head, a legal excuse 273, 23 Atl. 983. Mott v. Union Bank of N. Y., 38 N. Y. 18, determines the status of a default judgment upon which the defendant was permitted to plead. The Pennsylvania courts have also held that an opened judgment is not a final judgment in the full sense of the term. Savage v. Kelly, 32 Legal Int. (Pa.) 5. When the judgment is opened it remains a judgment, instead of being stricken off, solely for the protection of the plaintiff, to furnish security for him in the event that he recovers on the retrial. It does not remain a judgment against the defendant in any sense as a reward to the defendant for having been in default. As a defendant cannot defend before judgment without first appearing, he cannot, of course, when the judgment is in legal effect stricken off to permit him to defend, any more defend without appearing, than he could originally have defended without appearing. Assuming that the defendant has shown a sufficient legal excuse for his default, viz. his failure to appear, the court would not open the judgment and thereby leave the record in a condition which might debar the plaintiff from ultimate relief in event of failure of defendant to appear, unless the court is assured that defendant can and will ap tion expressly avers the inability of the defendant to enter special bail now even were the judgment opened. The defendant can appear on judgment opened only as he may appear before judgment rendered, viz. by giving special bail. Arlington Mills, 2 Pennewill, 188, 44 Atl. 620. The defendant has a statutory right of trial (Rev. Code 1915, § 4135), after the property condemned has been sold. It does not accord with legal ideas that the defendant In Taylor v. Rossiter, 6 Houst. 485, the should have the opportunity he now seeks points here raised were not called to the at- to try his case and also another afterwards tention of the court and were not passed | under the foregoing section of the Code. upon. The contention of the defendant is incon proceedings. McClenachan v. McCarty, 1 Dall. 375, 1 L. Ed. 183. In re Levy, 3 Pennewill, 5, 50 Atl. 540, asistent with the theory of foreign attachment motion was made that the judgment be opened and that the defendant be permitted to come in and plead and give security, which, it is submitted, was a proper application. The court considered merely the procedure of opening judgments and directed that a rule issue. In In re Warthman, 4 Pennewill, 319, 55 Atl. 6, an application was made that the defendant be allowed to enter into a recognizance, appear in court, and move to dissolve the attachment. This application was apparently considered as being in substance the same as the motion made in In re Levy. The court considered the question merely of dissolving the attachment, and held that the attachment remained. The effect of opening the judgment or manner of defendant's subsequent appearance were not before the court and were not passed upon, nor was the attention of the court called to the fact that when the defendant appears, the plaintiff if he obtain judgment is entitled to a judgment in personam. Also that such judgment be secured by special bail. The defendant's appearance would prevent the final judgment being a judgment in rem and a judgment in personam without the requisite special bail against a nonresident defendant, would probably be without benefit to the plaintiff. These three cases are not authorities against the contentions of the plaintiffs. The case of McDaniel v. Townsend, 4 Pennewill, 359, 55 Atl. 6, should be considered in this connection. No impropriety whatsoever or improper motive is attributed to the plaintiffs in the cause in Colorado. The petition in substance shows that it is a cause duly instituted and prosecuted. This proceeding could have no effect whatsoever, unless it were shown to have been instituted or prosecuted for the purpose of defrauding this defendant. Fraud is not alleged, and fraud is never presumed. In substance then, the petition presents as the sole ground for opening the judgment, the inability of the defendant to furnish special bail. The statute contains no exception in favor of persons unable to furnish special bail and it provides no exception for such persons. The plaintiffs deny that there is any equity shown by the petition. Banorgee v. Hovey et al., 5 Mass. 24, 4 Am. Dec. 17. That the Superior Court has not in the exercise of its discretion full equity powers That hardship is not a sufficient ground for vacating judgment is shown by Home Loan Ass'n v. Foard, 3 Pennewill, 165, 50 Atl. 537, Woolley v. Corbit, 3 Pennewill, 501, 51 Atl. 601, Railway Co. v. Taylor, 210 U. S. 281, 295, 28 Sup. Ct. 616, 52 L. Ed. 1061, and Ladew v. Copper Co. (C. C.) 179 Fed. 245. It is to be remembered that giving special bail or bond as a prerequisite to appearance is required by our law in instances other than attachment. Had the defendant been able to give special bail prior to the final judgment he would not have been permitted to defend without incurring the risk of a judgment in personam against him. Is a defaulting defendant to be placed in a superior position to a defendant who makes no default? The statute prevents the defendant being heard before judgment without his giving special bail; yet the defendant now seeks the court to permit him to do after judgment what the statute prevented his doing before judgment. Defendant's petition fails to show that were his default excused he could now enter special bail and thereby prevent a similar default. He relies on the discretionary or equitable powers of the court for relief. The object of the petition is not to show that the debt has been discharged or other defense arisen since the rendition of the judgment, but he seeks to have the judgment opened or set aside to show that nothing or a smaller amount than called for by the judgment was due when the judgment was obtained. No case, with the possible exception of the three Delaware cases cited has been found which has held that a judgment in rem may be opened and remain as security pending a trial on the merits. It is submitted that this cannot be done, for the theory of opening a judgment and letting it remain cautionary as security is that when it is closed it will be closed in the same form in which it originally was, possibly for a different amount, but opening a judgment in rem collectible only from the property attached and later closing it as a judgment in personam is a legal feat which has never yet been accomplished. All the cases cited by counsel for defend that an "opened" judgment lacks the quality of res adjudicata and "it leaves the action still pending and undetermined." On what theory then, may he now appear in the pending and undetermined action, save by giving special bail? None, save as provided by Rev. Code 1915, § 4135. The judgment here is unknown to the common law, the right thereto being given by statute. When such judgment is obtained in conformity with the statute, the plaintiff's right thereto is made absolute, Rev. Code 1915, § 4137; and there is no room for the operation of the alleged common-law powers of the court. The court must give judgment for the plaintiff, under Rev. Code 1915, 4137, when he has complied with the statutory conditions precedent, and must ascertain the amount due thereupon by inquisition. Rev. Code 1915, § 3729. It is submitted that the defendant has not shown a right to have the judgment opened. Carpentier v. Insurance Co., 2 Bin. (Pa.) 264; Bushel v. Insurance Co., 15 Serg. & R. (Pa.) 181; 36 Cyc. 1103; St. Louis & S. F. R. Co. v. Delk, 158 Fed. 931, 934, 86 C. C. A. 95, 14 Ann. Cas. 233; Ladew v. Tennessee Copper Co. (C. C.) 179 Fed. 245, 252; Railroad Commission v. Grand Trunk Western R. Co., 179 Ind. 255, 100 N. E. 852, 855. Rev. Code 1915, § 4089, provides for judgment for default of appearance in suits instituted by writ of summons. This statute also authorizes the court to take off such default judgments under the conditions there mentioned. Woolley v. Corbit, 3 Pennewill, 501, 51 Atl. 601, and Home Loan Ass'n v. Foard, 3 Pennewill, 165, 50 Atl. 537, show that such judgment can be taken off only in the method prescribed by the statute. Rev. Code 1915, § 4135, provides for defense by defendant in the event of his having sustained judgment by default in the foreign attachment proceeding. The statute therefore makes the right of the plaintiff to a judgment under section 4137 absolute, save as qualified by section 4135, and the court is therefore deprived by the statute of any power to open a judgment regularly obtained under section 4137, however great in the opinion of the court the hardship imposed on the defendant by such statute. It is submitted, therefore, that the court cannot open the judgment in the case at bar, it having been regularly obtained, under any terms whatsoever. The court in Taylor v. Rossiter, In re Levy, and In re Warthman were probably led into error by overlooking the limited scope of section 4089 and without considering the points herein set forth. PENNEWILL, C. J., delivering the opinion of the court in banc: Our contention is, that the opening of the Judgment leaves the action still pending and undetermined and as the defendant could not originally appear in the pending and undetermined action without giving security, he cannot otherwise appear therein when the action is restored to a pending and undetermin-judgment in this case, the defendant filed a ed status. Smith v. Eyre, 149 Pa. 272, 24 Atl. 288, seems directly in conflict with the contention of counsel for the defendant. After the plaintiffs had obtained final motion asking that the same be opened, and that he be permitted to appear and disprove or avoid the plaintiffs' claim, and that the judgment be vacated. It follows from this case that the defendant has not yet appeared in the main cause, The rule to show cause, issued upon such and the court in banc has held that the demotion, was served upon plaintiffs' counsel, it fendant cannot appear in the pending and undetermined action save by giving bail. Apart from the reply now made to the argument of counsel for the defendant, it is respectfully submitted that the statute is controlling upon the question before the court. Rev. Code 1915, § 4137, gives the plaintiff an absolute and unqualified right to judgment. Rev. Code 1915, § 3729, prescribes the method of ascertaining the amount of such judgment. The right to this judgment being statutory, the plaintiff may not be deprived of this judgment if it be regularly obtained. Rev. Code 1915, § 4169, provides for judgment for plaintiff at the first term in default of affidavit of defense. This likewise, it is submitted, would be an absolute and unqualified judgment were it not for a provision in the statute (same section) authorizing the court to open such judgment under the conditions there provided and it cannot be imagined that the court would open such judgment under any terms other than those therein provided. 7 not being possible to serve it upon the plaintiffs' themselves, because they were not in this state. [5] While objection is made to such service, it appears to be formal only, and is not urged with much force or confidence. It is unnecessary, we think, to give any reasons or authorities for holding that the service of the rule was good and legal. The only question for the court to consider is whether the judgment in question should be opened. [6] The court have been very strongly impressed, during the progress of this case, with the thought that the situation of the defendant was not only a hard one, but also very exceptional. Having no property whatever except the corporate stock attached, the attachment together with the receivership secured in Colorado made it impossible for the defendant to enter the bail demanded in the action. By the receivership proceeding the stock was stripped of any immediate market value and became practically worthless as a security or pledge for advancement or loan. For that man of large property which is so situated as to be unavailing as security for a loan. reason the court were at one time strongly [ just as difficult or impossible for an indiinclined to believe that after final judgmentvidual of small means to furnish the bail rewas obtained and the lien perfected, it would quired to dissolve the attachment as for a be just to the defendant and not unfair or prejudicial to the plaintiffs to open the judgment so that the case could be tried upon the merits without requiring the entry of security or special bail. We have no doubt that a court of general jurisdiction, in the control of its own judgments, has the inherent power to open a judgment of this character if convinced that it would be in furtherance of justice to do so. The fact that the receivership in Colorado has deprived the property of the defendant of any immediate market value is, we think, immaterial in the present case, and cannot avail the defendant in his motion. For anything that appears in his petition the receiver was regularly appointed. We must assume that the court was justified in making the Such power has been exercised or recogniz- appointment. Indeed, the defendant does not ed by the Superior Court of this state in cas-charge that the receivership was caused by es similar in character to the present case. any fraud or unfairness on the part of the Taylor v. Rossiter, 6 Houst. 486; In re plaintiffs, or that the purpose of the plaintiffs Warthman, 4 Pennewill, 319, 55 Atl. 6; In re in securing the appointment of the receiver Levy, 3 Pennewill, 5, 50 Atl. 540. was to enable them to obtain possession of his property by foreign attachment proceeding. There does not seem to be any connection between the two proceedings at all. But those cases were different from the present one in this important particular: The defendant had no knowledge of the attachment until final judgment was obtained. It was impossible for him to dissolve the attachment by entering security because he had no opportunity to do it. He was entirely ignorant of the proceeding, and the court held that he should have an opportunity to make his defense. In the present case the defendant had knowledge of the attachment from the time it was made, and the only excuse he can give for failing to appear is that it was impossible for him to furnish security in the large amount demanded. Being unable to find any facts in this case that would justify the court in opening the judgment in question, without security, the defendant's motion is refused. It is ordered that the foregoing opinion be and it is certified to the said Superior Court. (Signed by the Judges.) Whereupon the Superior Court made the following order: PER CURIAM. And now, to wit, this 27th day of November, A. D. 1916, on motion of the plaintiffs' attorneys, for an order to sell the shares of stock attached by virtue of the above writ, or as many shares as shall be sufficient to satisfy the debt, interest and costs of the judgment obtained upon the said writ: Because of the peculiar circumstances of the case, and the inability of the defendant to appear by giving the bail required, his motion to open the judgment in order that he might have an opportunity to make a defense, and the case be tried on the merits appealed It is ordered by the court that the said strongly to the sympathy and discretion of shares, or so many of these shares as shall the court. But after a most careful consider- be sufficient to satisfy the debt, interest and ation of all the facts we are forced to the costs aforesaid, be sold at public vendue to conclusion that no sufficient reason has been the highest bidder, upon such notice as is reshown to justify the opening of said judg-quired for sales upon execution process. ment. 2. BILLS AND NOTES →→525 Another case involving similar facts will probably never arise in the Superior Court again, but it will frequently happen that a defendant will find it impossible to furnish the security required; and such impossibility may be caused by the fact that he has no [Ed. Note. For other cases, see Bills and property other than that attached. It may be | Notes, Cent. Dig. §§ 1832-1839.] 3. BILLS AND NOTES In an action by the subsequent holder of notes given for work to be performed, where the contract for the transfer of the notes was made in Illinois and was to be performed there, its construction and interpretation is to be governed by the law of Illinois. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 744.] 4. SALES 6-SALE OR PLEDGE-NOTES. 311-TRANSFER-CON- | 3d, 16 days after the delivery of the notes STRUCTION-WHAT LAW GOVERNS. to Tomlinson-Humes, Incorporated, it sold and delivered the notes to plaintiff under an existing agreement between it and the plaintiff, Credit Company, by which the parties agreed to buy the accounts belonging to Tomlinson-Humes, Incorporated, and to pay therefor from 98 per cent. to 78 per cent. of their face value, depending upon the time in which the accounts were paid, paying 65 per cent. of the face value upon acceptance by the Credit Company and the balance upon payments of said accounts to it to TomlinsonHumes, Incorporated. Tomlinson-Humes, Incorporated, guaranteed payment of the accounts and the payment of all expenses incurred in collecting accounts in default, and agreed to assign to the Credit Company the accounts purchased by it, to the end that it might be subrogated to all of the rights possessed by Tomlinson-Humes, Incorporated. The Credit Company had the right to appropriate deferred payments collected by it on Under the law of Illinois, where notes were transferred to plaintiff by language appropriate to a sale, but under an agreement whereby plaintiff's interest in them was limited to the amount advanced, and the balance was to be applied to the liquidation of similar indebtednesses or paid to the payee, the contract between plaintiff and payee was a loan secured by the notes as collateral, and not a sale of the notes. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 14.] 5. PLEDGES 58(6) NOTE RIGHTS [Ed. Note.-For other cases, see Pledges, Cent. one account to the payment of amounts due Dig. § 194.] it by Tomlinson-Humes, Incorporated, on 6. USURY 127-RIGHT TO PLEAD AS A DE- other accounts. FENSE. The defense of usury as to the rate of discount of notes to a pledgee was not available to the maker as against the pledgee with power to collect. [Ed. Note.-For other cases, see Usury, Cent. Dig. §§ 365-379.] Under the agreement as to payment of these three notes the Credit Company charged as discount $149.90, paid by check $1,511.54, and credited $745.56 upon the indebtedness of Tomlinson-Humes, Incorporated, on other accounts held by the Credit Company, leaving a balance between these sums and the face of the notes of $600, called a de Appeal from Superior Court, Hartford County; Joseph P. Tuttle, Judge. Action by the Continental Credit Compa-ferred payment, which upon collection was ny against Caroline I. Ely. Judgment for plaintiff, and defendant appeals. Affirmed. The finding recites that the defendant entered into a contract on May 17, 1913, with Tomlinson-Humes, Incorporated, of Chicago, by which it agreed to go over all of Mrs. Ely's (defendant's) pictures, mezzotints, and prints, and to clean and repair all pictures in her house in Washington, D. C., and to authenticate through its expert, Thurber, all original paintings and engravings in her collection, and furnish her with an estimate of their value, and the defendant agreed "to make payment for such work as is contemplated and specified above" the sum of $3,000; and in payment defendant delivered to Tomlinson-Humes, Incorporated, three notes, for $1,000 each, without interest, payable in 3, 4, and 6 months from date, respectively. Tomlinson-Humes, Incorporated, never carried out its agreement, 'but it was not requested to perform, and there was no evidence that it did not intend to carry out its agreement in good faith at the time it was made and at all times. TomlinsonHumes, Incorporated, was adjudged bankrupt on July 30, 1913. It was a part of the agreement that the work of cleaning and restoration should not be done until about July 1, 1913. On June to be turned over to Tomlinson-Humes, Incorporated, or credited upon its debt to the Credit Company. The plaintiff, Credit Company, has owned and had possession of these notes since their delivery to it, and duly presented them for payment, but they have never been paid. Tomlinson-Humes, Incorporated, has never fulfilled its guaranty, and plaintiff is still the actual bona fide holder and owner of these notes. Walter S. Schutz and Charles Edgar Blake, WHEELER, J. (after stating the facts as The assignments of error pressed above). are the following: (1) The refusal to correct and add to the finding. (2) The sustaining of the demurrer to defendant's motion for a disclosure. (3) The denial of defendant's motion for a stay of proceedings. (4) The holding as matter of law that plaintiff was a bona fide purchaser for value of these notes, and the failure to hold that plaintiff took the notes as collateral security for an usurious loan. (5) The failure to hold that defendant can avail herself of the defense of usury, and of the defenses of fraud and lack of consideration. (6) And in any event hold |