Church's Appeal

Mr. Justice' Tkunkey,

delivered the opinion of the court,

From the final decree the respondents appealed, and filed the certiorari in the court of common pleas on March 10th 1877. Afterwards and before the return-day of the writ, said decree was amended in the court below, and the record, setting forth the decree as amended, was certified and returned. That is the decree which was affirmed and remitted for enforcement, and whether there had been irregularities in the procedure for the amendment is a matter of no concern in the execution. The alleged irregularities -were prior to the final hearing and adjudication in the appellate court, and if it be conceded that the court below7 erred in making the amendment, the time for its correction w7as at or before that hearing; the decree, as affirmed, is valid until vacated by the court.

The bill was against Joseph Church and Charlotte, his wife, for a decree that they convey to the plaintiff certain undivided interests in a tract of land in accordance with an alleged trust created before and at the time the legal title to the land was vested in said Charlotte. Joseph Church was a necessary party, and it appears that he wras an active party in contesting the plaintiff’s demand. The result was a decree that Charlotte Church held the legal title to the land, that the defendants should convey said interests to the equitable owners thereof, and that the defendants pay the costs.

The Act of 1842 provides that no person shall be arrested or imprisoned on any civil process, issued in any proceeding for the recovery of money due upon a judgment or decree founded upon contract, or due upon any contract, or for the recovery of damages for the non-performance of a contract. This suit was not for the recovery of money, but for the enforcement of a trust and, therefore, without the statute. It may be that the trust grew7 out of a contract, and that the suit was akin to a proceeding for specific performance, yet it is not within the spirit of the statute, for breaches of duty by trustees are excepted out of its operation : Chew’s Appeal, 44 Pa. St. 247.

Where the decree against a party is founded upon his tort, or upon his breach of duty as a trustee, the costs imposed upon him follow his wrongful acts. In an action for recovery of money founded upon a contract, the costs are of the same nature, and the defendant is not liable to arrest for either debt or costs : S. S. Pierce’s Appeal, decided at this term (reported ante, page 27). But where the party is liable to’ arrest to enforce the payment of money, or the performance of a specific thing, he is, also, for the costs taxed against him in the judgment or decree.

The order awarding an attachment is affirmed, and appeal dismissed at the costs of appellant.