allowed in the case of a foreign attachment; in which case, the writ shall contain a clause of scire facius to the garnishee, etc.: See Wray v. Tammany, 13 Pa. St. 394; Gochenaur v. Hostetter, 18 Id. 414; Strause's Ex'r v. Becker, 44 Id. 206.

Whilst, therefore, all the goods and chattels of the defendant, whether they have been previously "pawned, pledged, or demised, as aforesaid," or not, are liable to seizure and sale on execution under a fieri facias, it is only such goods and chattels as have been "pawned or pledged by the defendant, as a security for a debt or liability, or which have been demised or in some manner delivered or bailed for a term," that are liable to an attachment execution; the party in whose possession the goods are must have such a title or interest therein that they cannot be taken from him: Lennig's Appeal, 9 Week. Not. Cas. 503.

But there is no restriction in section 35 to any particular kind or class of debts due, or deposits of money made by the defendant; that section applies in the most general terms to all debts and deposits; and whilst section 22 provides that such debts and deposits shall be liable like other goods and chattels, section 35, as was said by Mr. Justice Woodward, in Reed v. Penrose, 36 Pa. St. 239, prescribes that the manner of levying and seizing all such credits and choses in action shall be like that allowed in foreign attachment.

It may be conceded, perhaps, that if the money which Rozelle deposited with Tillinghast had been in the view of the sheriff, and within his power, he might, upon a fieri facias, have taken of it to the amount of his writ; but the money, it must be conceded, was a deposit with Tillinghast, and even if liable to levy upon a fieri facias it was also liable to an attachment in execution in his hands. In disposing of the rule and the demurrer, we must of course assume the truth of the facts which the defendant and the garnishee have set forth in the plea and answer respectively, but we are not bound to accept their legal conclusions. A deposit, properly so called, is a naked bailment, and exists where one of the contracting parties gives something to the other to keep, who is to do so gratuitously, and obliges himself to return it in individuo when he shall be requested. When one deposits money with another for safe-keeping, the latter to return, not the specific money, but an equal sum, the transaction is also called a deposit, but it is an irregular deposit: Bouv. 511. Now, the transaction between Rozelle and Tillinghast was undoubtedly a deposit of

money, plain and simple; the money was left with Tillinghast for safe-keeping, to be returned, not in money of like amount, but "in the identical money deposited," and it is of no consequence that the garnishee in his answer, and the defendant in his plea, deny that it was a deposit, as by the admitted facts it was plainly nothing else.

It is true that a depositary is held to the exercise of ordinary care only, but when he becomes the depositary of a fund, he assumes that relation under the law as it exists, and thereby subjects himself to the chances that it may be attached in his hands for the depositor's debts; and if he thereby incur a larger measure of responsibility, it is but the legitimate consequence of his own voluntary act.

Upon a careful examination of the whole case, we find no error in this record, and the judgment is affirmed.

PENSION MONEY, WHEN NOT EXEMPT FROM LEGAL PROCESS: Cranz v. White, 41 Am. Rep. 408; Friend v. Garcelon, 52 Id. 739; Robion v. Walker, 56 Id. 878; when exempt: Hissem v. Johnson, 55 Id. 327; recovery back of illegal fees for obtaining: Hall v. Kimmer, 1 Am. St. Rep. 575, and note 578. GRATUITOUS BAILEE, DILIGENCE REQUIRED OF: Smith v. First National Bank, 97 Am. Dec. 59, and note 62; First National Bank v. Ocean National Bank, 19 Am. Rep. 181; Jenkins v. Bacon, 15 Id. 33; Tancil v. Seaton, 26 Id. 380; Caldwell v. Hall, 45 Id. 410; Schermer v. Neurath, 39 Id. 397.

WHEN MONEY RESULTING FROM PENSIONS BECOMES SUBJECT TO GARNISHMENT. The conclusion arrived at in the principal case, that the provisions of the United States Revised Statutes, section 4747, exempting pensions from execution, does not apply after the money reaches the hands of the pensioner, is well sustained by the cases cited in the opinion: See Cranz v. While, 27 Kan. 319; 41 Am. Rep. 408; Friend v. Garcelon, 77 Me. 25; 52 Am. Rep. 739; Robion v. Walker, 82 Ky. 60; 56 Am. Rep. 878; Cavanaugh v. Smith, 84 Ind. 380; Spellman v. Aldrich, 126 Mass. 113; Jardain v. Fairton Saving Fund Ass'n, 44 N. J. L. 376; to which may be added other well-considered cases to the same effect: See Webb v. Holt, 57 Iowa, 712; Triplett v. Graham, 58 Id. 135; Baugh v. Barrett, 69 Id. 495. It is held that money received by a debtor as a pension from the federal government stands upon the same footing as any other money which he may have: Faurote v. Carr, 108 Ind. 123. Property purchased by a pensioner with pension money is liable to sale on execution: Cavanaugh v. Smith, 84 Id. 380. So where a pensioner gives his pension money to his sons, who buy land therewith, such land is not exempt from execution upon a judgment against the pensioner, obtained prior to the gift: Sims v. Walsham, Ct. App. Ky., Mar. 3, 1888. And where a pensioner deposited his pension money in a bank to his credit, it was held not to be exempt, in the hands of the bank, from the process of attachment for the pensioner's debts: Webb v. Holt, 57 Iowa, 712.

The view taken by the courts in the cases above cited is, that the federal statute (U. S. R. S., sec. 4747) is limited to protecting and exempting pension money from levy and seizure while it remains in the pension office, or in the hands of government officials, and in the course of transmission to

the pensioner entitled thereto; but after the money is paid over, the United States law ceases to be operative, and the right of exemption after that, if any exists, must be found in the laws of the state where the pensioner resides: See also Burgett v. Fancher, 35 Hun, 647, 650; Stockwell v. National Dank, 36 Id. 583. It is held that the language of the federal statute precludes the idea that it was the intention of Congress to exempt either the money, after it had gone into the hands of the pensioner, or the property which he may have purchased with it; and therefore, that a homestead purchased with pension money, and levied upon in satisfaction of a debt con tracted prior to such purchase, is not exempt from execution under the statute: Foster v. Byrne, Sup. Ct. Iowa, Dec. 15, 1887, Beck and Rothrock, JJ., dissenting, and reaching the conclusion that under the statutes of the United States a person may hold a homestead purchased with his pension money, free from all debts, without regard to the time they were contracted: Foster v. Byrne, Sup. Ct. Iowa, Dec. 15, 1887, So the view was entertained in a Vermont case, that so long as the pension money is kept as a fund, or invested for keeping and use as current circumstances may require, it would not be subject to attachment by trustee process or otherwise, in suits against the pensioner. Nor was the court prepared to say that property needful for proper purposes of current life of the pensioner and his family, purchased with the pension money, could be so subjected: Hayward v. Clark, 50 Vt. 612. So it is held in Wisconsin, contrary to the prevailing weight of authority elsewhere, that money received by a pensioner of the United States in pay. ment of his pension, and remaining in his possession, is exempt from seizure on process against him for debt, under the federal statute: Folschow v. Werner, 51 Wis. 85. In the cases last cited, the courts were disposed to give the closing clause of the section "but shall inure wholly to the benefit of such pensioner "-such a force and application as would effectuate the benefit therein meant: See Hayward v. Clark, 50 Vt. 617. The same view is taken by the court in a recent case in West Virginia, holding that where a pensioner receives pension drafts from the government, and transfers them or their proceeds to another, upon his agreement to convey land to the pensioner's wife, and the land is so conveyed, it is not subject to the lien of judgments against the pensioner existing at the time the drafts were received by him: Hissem v. Johnson, 27 W. Va. 644; 55 Am. Rep. 327.

The New York statute (Code Civ. Proc., sec. 1393), providing for the exemption from seizure of a pension granted by the United States for military services, is broader in its terms than the federal law, and was not intended to be as limited in its operation. By it a pension is exempted, not as by the federal statute only when "in course of transmission," but after it has been received by the pensioner. And it is held that, although the pension money may have been deposited in a bank, the account cannot be reached by a creditor: Burgett v. Fancher, 35 Hun, 647; Stockwell v. National Bank, 36 Id. 583; Wildrick v. De Vinney, 18 N. Y. Week. Dig. 355. But pension moneys given by the United States to a woman on account of the military services of her son are not, after her death, exempt, either under the New York statute or the federal statute, in favor of her descendants not constituting a family for whom she provided, from liability to be applied to the payment of a judgment recovered, upon a debt of the decedent, against her administrator: Matter of Winans, 5 Demarest, 138; see Hodge v. Leaning, 2 Id. 553.

It was held in a recent case in Iowa that a homestead purchased with pension money, and levied upon in satisfaction of a debt contracted prior to such purchase, is not exempt from execution under a statute of that state

providing for the exemption of pension money, or the property purchased therewith, and that such exemption "shall apply to debts of such pensioners contracted prior to the purchase of such homestead." The statute, so far as it applies to debts contracted before the purchase of the homestead, is held to be in conflict with the constitution of the United States (art. 1, sec. 10), in that it impairs the obligation of contracts: Foster v. Byrne, Sup. Ct. Iowa, Dec. 15, 1887.

Where a woman received pension money, and loaned it, taking a note for security, and shortly before her death assigned the note as a gift to her daughter, it was held that, in the absence of other assets, the note was liable in the daughter's hands to the payment of the claims against her mother's estate, the mother's death having occurred prior to the taking effect of the state statute exempting pension- money from execution: Baugh v. Barrett, 69 Iowa, 495. The question whether pension money is exempt is to be determined by the law in force when the pensioner died: Id. 498.

Under the statutes of Iowa, pension money is exempt from execution whether the pensioner "is the head of the family or not," and upon the death of a married man leaving money derived from a pension, the money goes to his administrator, and not to his widow, who is entitled to such property only as would be exempt in the hands of her husband "as the head of a family": Perkins v. Hinckley, 71 Iowa, 499.

RAUCH V. DECH.

[116 PENNSYLVANIA State, 157.]

VENDOR OR MORTGAGOR WHO SELLS OR MORTGAGES LAND WHICH HE DOES NOT OWN WILL NOT BE PERMITTED TO SET UP AFTER-ACQUIRED TITLE THERETO, to defeat his previous grant or mortgage, for this would be to permit him to perpetrate a fraud on his grantee or creditor.

ID. BUT THIS RULE DOES NOT APPLY where the lien of a mortgage is discharged by a judicial sale, and the mortgagor, having been discharged in bankruptcy, reacquires title to the mortgaged premises through the purchaser at such sale. The purchase by the mortgagor in such case does not work a revival of the discharged mortgage lien.

SCIRE FACIAS to revive the lien of a judgment obtained on a mortgage. The mortgage was executed by Rauch to Dech on May 3, 1874, upon certain premises already subject to prior encumbrances, to secure the payment of one thousand dollars. Rauch was adjudicated a bankrupt on July 5, 1877, and judgment was entered against him on March 22, 1878, in liquidation of the mortgage executed to Dech. On March 28, 1879, he received his discharge in bankruptcy from all debts and claims, including said judgment. To the scire facias the defendant filed a special plea, setting out the discharge in bankruptcy, and further alleging that the lien of said judg ment was forever divested by a sheriff's sale of the mortgaged premises upon a previous mortgage. To this plea the plaintiff

filed a demurrer, which was sustained, and judgment entered thereon in his favor. Whereupon the defendant took this writ. Other facts in the opinion fully state the case.

W. E. Doster, for the plaintiff in error.

Robert L. Cope and J. B. Kemerer, for the defendant in error.

By Court, GORDON, J. This was a scire facias to revive the lien of a judgment obtained on a mortgage, and which lien had been discharged by a sale of the premises by a judicial sale on a previous mortgage. This sale seems to have been made by the sheriff to C. A. Luckenbach, on the 15th of June, 1878; and subsequently, June 1, 1882, the executors of Luckenbach, for a full consideration, conveyed the premises to James K. Rauch, the defendant in the present suit. The court below seemed to think that, because there had been a reacquisition of the mortgaged property by the defendant, the lien of the discharged mortgage had been thereby revived; hence entered judgment on the demurrer for the plaintiff. This was a mistake; a result such as this could only arise by way of estoppel. When a vendor or mortgagor either sells or mortgages land which he does not own, and afterwards obtains the title thereto, he will not be permitted to set up this afteracquired title to defeat his previous grant or mortgage, for this would be to permit him to perpetrate a fraud on his grantee or creditor. But there is nothing of the kind in the case before us; for it is not pretended that Rauch mortgaged to Dech land to which he had no title, or that he was guilty of any species of fraud whereby Dech was deceived. The plaintiff's lien was lost by force of legal process, and it is not even intimated that Luckenbach's title was not taken clear of that lien. In the mean time, and before the date of the deed of the executors to the defendant, he had received his discharge in bankruptcy; so that, at that time, he was not even the debtor of the plaintiff. It thus follows that, so far as Dech and his mortgage were concerned, Rauch, at the time of his purchase, occupied the position of a stranger. To hold, therefore, that that purchase worked a revival of the extinguished debt and mortgage was a clear mistake, without the shadow of authority for its support.

The judgment of the court below is now reversed, and it is ordered that judgment be entered on the demurrer for the defendant.