author: Huston, J.

text:
    FREDERICK DEMI, against CHRISTIAN BOSSLER,
    IN ERROR.
    Where a lease is made for the term of a year, and the tenant sows the land with spring grain, before his term expires, he has no right to the crop of spring grain, cut after the term is out; and this whether the lease be for a money rent, or on the shares.

    The custom in Pennsylvania, as to the way going crop, is confined to fall grain, sowed in the autumn, before the expiration of the lease, and cut in the summer after it determines.
    In error to the District Court for the city and county of Lancaster.
    This was an action of trover and conversion, by which the plaintiff sought to obtain the value of oats, in the straw, which grew on twenty-four acres of land, alleged to be one thousand six hundred dozen of sheaves, of the value of three hundred dollars, and which came into the defendant’s possession on the the 15th of July, 1825,
    On the 1st December, 1823, Christian Bossier, leased the land on which these oats grew to Frederick Demi, the plaintiff, for the term of one year, from the 1st day of April, 1824, to the 1st day of April, 1825. The lease contained a covenant that “Demi” should “cultivate; the said plantation by the shares” that each of the said parties “should have the one equal half part of all the wheat, rye, oats, indian corn, hay and pasture”: the wheat, rye and oats, to be delivered in the bushel. The landlord, on the 28th December, 1824, served Demi, with notice to leave the premises, and by a proceeding under the landlord and tenant act, commencing on the 4th of April, 1825, compelled him to quit. The oats in question, were sown in the month of March before the expiration of the lease. The charge of the court, being with the defendant, a verdict was found for him: and the plaintiff brought this writ of error, and assigned for error, this opinion of the court.

      Porter, for the plaintiff in error.
    The question is, whether a tenant who has put out a spring crop, in proper season, before the expiration of his lease, has a right to enter, after his term is ended, and cut that crop. By the terms of the lease, the tenant was to cultivate the land “by the shares,” and divide the “oats,” as well as other grain, in the bushel. The lease too, is without any restriction as to the mode of cultivation, and contains no covenant, that he should quit at the end of the term. The right claimed, is then consistent with the covenants in the lease, giving to the tenant a compensation for his labor, and the landlord the benefit of the covenant, to deliver the one half of the grain cut. The case of Stultz v. Dickey, 5 Bin. 285, establishing the right of the tenant to the way going crop, was a case in which fall grain was claimed; but the reasoning in that case is applicable to the present:- that too, was the case of a money rent, this a rent by the shares. He referred also to Carson v. Blazer, 2 Bin. 475,- 487. Biggs v. Brown, 2 Serg. Sg Razóle, 14.-

      Henry, contra.
    The tenant knew that his term was to expire on the 1st day of April, 1825,-and had full notice to quit, before he sowed the grain in question, and he sowed it a few days before the end of his term.
    This takes from his case all equity. The way going crop, the right to which exists in Pennsylvania, means the fall crop. This right, has its foundation in particular custom,- and did not exist at common law. Gordon v. Little, 8 Serg. Sg Rawle, 533, 559.- The particular custom is supposed to- enter into the contract between the parties, and if the plaintiff wished to extend it to the spring crop, it was incumbent on him to prove a custom, to sustain him: A custom in derogation of the common law, must be construed strictly, and will not be extended without evidence. 1 Blac. Com. 78.

      JVorris, on the same side.- Before the case of Stultz v. Dickey, 5 Bin. 285, decided at Lancaster; the custom, as to the way going crop, was not established in Pennsylvania, and is inconsistent with the language of the lease; which by its terms is-to expire- at the end of the year. But this custom, does not extend to give the tenant two spring crops, and one fall crop. The plaintiff was permitted to- give evidence to establish such a custom, but in this he failed. Here the lease, by its terms, ends with the year, and cannot be carried beyond it, but by usage, and this is a matter in pais, and lies in proof. But the right contended for, is in the highest degree unreasonable; it would permit the tenant by sowing a spring crop; under a lease for one year, to occupy the premises rented for two years: and would be against the course of good husbandry, as it is in violation of the contract of the parties.

      Hopkins, in reply.
    We do not rely on usage, we stand on our contract, and the law of the land. By the terms of the lease, the tenant had the exclusive right to the land for one year, with no other restriction, but that he should not under-let; he was to have the half of what was sown during the term, and the landlord the other half. There is no restriction in the lease as to the time he should sow. If to sow grain in the spring, as was done in this case, be contrary to good husbandry,- the landlord should have guarded against it, by an appropriate covenant. As there is no such restriction, it is the defendant who must resort to the proof of usage, to effect a construction of the lease, which its language does not import, and that too, for the unjust purpose of depriving the tenant of a compensation for his labor.
   The opinion of the court was delivered by

Huston, J.

By the common law, a tenant after the expiration of his lease, and removal from the tenement, had no right to return; and hence the' crops growing-and ungathered, were lost to him. The law in this State has varied from that, as to what has been called the way going crop, which, heretofore, has been confined to grain sown in the autumn? to be reaped the next harvest: and no difference has-yetbeen established between a tenant, who pays a rent in money, and one who gives, as rent to his landlord, a share of the produce of the farm.- The usage and general understanding of the country form a part of general agreements, unless otherwise specified. 5 Bin. 285, Stultz v. Dickey. If a tenant rents a farm for one year, it is understood, he is to take one crop of each kind of grain cultivated, and that he is to mow as many crops of grass as the meadows will produce. If a tenant on a monied rent, can sow with oats, flax or other grain in March, before his lease expires, which is always about the first of April; he in fact gets the benefit of the farm for two years, although he pays the rent of but one. So, if he takes the farm on the shares, and after raising the summer crop one year, sows in March all the grounds with oats, no tenant can go on it the next year, or he will have no land to cultivate for spring crops, and can put in fall crops, but on oats stubble, which yields badly. The law has been well and justly settled, and favorably to tenants. The present attempt is unreasonable, and pregnant with injustice to one party, and would eventuate in injury to tenants as a class; for the tenant who rents a farm for the ensuing year, will not know, whether he can put in a spring crop until he knows whether the month of March will be clement or inclement, or whether the previous tenant was regardful of the rights and interests of others, and the general laws and usages of the country. The conduct of Demi, in this particular case, was unreasonable and unjust, and to sanction it would only introduce a new clause into leases. It is contrary to the common law, to the law as settled in this State, and is not pretended to be 'sanctioned by any usage.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROYER, STULTZFUS and ECKERT, appellants, against TATE and others, appellees.
    A decree Which does not dispose of the whole fund for distribution, under the act of assembly “relative to the distribution of money arising from, sheriff’s and coroner’s sales,” is not a final decree,- and- an appeal taken from such decree will be quashed.
    This was an appeal taken by Abraham Royer, John Stultzfus áñd Peter Eckert, from the decree of the Court of Common Pleas of Lancaster county, in the matter of the distribution of the money raised by the sale of the real estate of James Plamilton, deceased, by the sheriff —
    On the 2d of September, 1825, the sheriff was ruled to pay the money into court, and notice to J. Hopkins, Esq., at bar, was noted on the record. On the 9th September, 1825, he paid seven thousand seven hundred and thirty-five dollars and twenty-five! cents, the nett proceeds, into court. On the 30th September, 1825, a rule was taken to show cause why the judgment oi Susannah EU-maker, should not be paid out of these proceeds, and on the 29th December, 1825, a similar rule was taken in behalf of Hamilton, Potter', Ramsey and Clark, other judgment creditors of J. Hamilton, deceased. On the 13th of March, 1827, these rules were argued; and on the 1st May,-1827, the court decreed, that “the judgments obtained by Tate and wife, No. 7, to April term, 1817; Joshua Potter, to April term, 1821; William Ramsey, to the same term; Grayson, assignee, &c. to January term, 1818, and Susannah Ellmaker, to Au* gustterm, 1824,” are entitled to be paid as judgment's on specialties out of the proceeds of the sale of the real estate of James Hamilton. Those obtained by Tate and wife, No. 8, April term, 1817; Jane M. Tate, to August term, 1824; by Clark and wife, to April term, 1823, “are entitled to be paid as judgments on simple contract debts only.” The court added. “We cannot recognize John_ Stultzfus, Peter Eckert and Abraham Royer, as specialty creditors. There was no debt due to them at the time of J. Hamilton’s death. Their remedy is confined to the covenant of warrantee in the deed, and the claim must be made out judicially before it can be enforced.”
    From this decree an appeal to the Supreme Court, was taken by the present appellants, and on the 6th of June, 1827, this appeal was dismissed. On the 26th June, 1-827, Hopkins, moved the Court of Common Pleas, on the petition of the appellants, “ That the court proceed to make a final distribution of the proceeds of the real estate of the said James Hamilton, agreeably to the 14th section of the act of the 19th April, 1794, and that if it should appear, that any incertitude, as to the question of any other claims exists, that the court direct issues to ascertain them.” On the 30th June, 1827, that court made the following decree:
    “The court having decided on the 1st May, 1827, that the judgments obtained by Tate and wife, to April term, 1817, No. 7; of
      Joshua Potter, to April term, 1821, No. 440; of William Ramsey, to-April term, 1821, No. 441; of Grayson, assignee of John Whitacre,executor of Stephen Wray, to January term, 1818, No. 52; Susannah Ellmaker, to August term, 1824, No. 28, are entitled to be paid as-judgments on specialties out of the proceeds of sale of the real estate of James Hamilton; and that John Stultzfus, Peter Eckert and Abraham Royer, could not he recognized as specialty creditors; no-questions on those points are now open for discussion. Under that decision, the prothonotary should pay the amounts due on those judgments, and if not paid after this declaration of the court, payment will he enforced by attachment. The court will proceed on a proper application, by those who claim any part of the balance to make a final distribution of it agreeably to law, and, when such claims are made; if any facts connected with such distribution, should be disputed, the court will direct an issue, if the party ask-ing it, he legally entitled thereto.”
    Same day (30th June,) appeal was taken by James Hopkins, attorney of Abraham Royer, and others, and this affidavit made, viz;- “ James Hopkins, being duly affirmed according to law, saith, that this appeal is not taken for the purpose of delay, andfurther saith not.” On-the 23d of July, 1827, bail on the appeal was entered.

      Champneys, Porter and Ellmaker, for the appellees,
    now moved-the court to dismiss the appeal.
    1. Because the affidavit made to; obtain the appeal, is not that' required by law,.and the security required by the act of assembly,, was not entered.
    2. No decision was made after the 1st day of May, 1827, from-which an appeal could he taken.
    They referred to Pamphlet laws 471, act of the lQth of April, 1827. PurcL dig. 613, act of 27th March, 1813.

      Hopkins, contra,
    contended that the first decree of the 1st May,. 1827, from which the appeal was taken, which was dismissed by the Supreme Court, was hut interlocutory; and that the decree made on the 30th June, 1827, from which this appeal was taken, was the final decree. A decree is only final when the court dispose of the whole subject matter in dispute. Under the act of assembly authorising this proceeding, no bail is required to obtain an appeal. The appeal is effectual without hail, although without it, there is no supersedeas. Magil v. Caufman, 4 Serg. Sf Rawle, 318. The affidavit is stronger than that required by the act, and is well taken by the attorney of the appellants.
   Per Curiam.

This appeal must be quashed. There is yet no final decree. The Court of Common Pleas must have all the parties before them, and dispose of the whole fund. This must be done to make a final decree. . Appeal quashed.

NOTE — Rogers, J., was sitting at-vVm Prius in Philadelphia, during this adjourned court, and took no part in the judgments given at it.


author: Huston, J.,

text:
    NEIL CROSBY and PATRICK CROSBY, against LYDIA MASSEY and others.
    'When a judgment is irregularly entered against a defendant, by default of appearance, who being informed of it, neglects or refuses for two terms, and until after a writ of enquiry of damages is executed, to make an application to have the judgment set aside, it will not be reversed on a writ of error.
    'The time and manner of filing narr, of appearing, pleading and signing judgment, for want of plea, &c. are matters of practice regulated by rules of court: and any one complaining of irregularity therein, must apply for redress as soon as he knows of the injury.
    Error to the Common Pleas of Schuylkill county.
    This action was instituted by the entry of the following agreement between the parties.

      Lydia Massey and others. > Neil Crosby and Patrick Crosby. )
    Amicable action in trespass on case‘
    We, the defendants above named, hereby authorize and require -the prothonotary of the court of Common Pleas] of Schuylkill county, to enter up the above stated amicable action of trespass on the case to July term, 1827, and we agree that the same proceedings be had thereon, as though we had been regularly summoned.
    In witness whereof, we have hereunto set our hands, the fourteenth day of June, 1827.

      Neil Crosby,

      Patrick Crosby,

    I agree to the entering up of the above amicable action on the terms above mentioned.

      Jno. Bannan,

    Att’y for Plaintiffs.

      This agreement being entered on the record to July term, 1827, a declaration for use and occupation of a saw-mill, was filed on the 28th, September, 1827, and, on the same day, a judgment by default of appearance, was signed by the plaintiff On the 26th February, 1828, a writ of inquiry of damages was issued, by which the damages were assessed at three hundred and twenty-five dollars. On the 31st March, 1828, Mr. Loeser appeared for the defendants, and obtained a rule to shew cause why the judgment and inquisition should not be set aside. In October, 1828, upon hearing the testimony, the court discharged the rule, and entered judgment on the inquisition.
    The substance of the testimony was, that the next day after the judgment was entered, Mr. Bannan, the plaintiff’s attorney, gave notice to the defendants that judgment had been entered, at which they expressed their surprise, and said that Mr. Loeser had been employed by them to make defence: The next day Mr. Loeser called on Mr. Bannan, and requested him to open the judgment, which he refused to do, but told Mr, Loeser he might ask the court to set it aside. At the next court after this conversation, Mr. Loeser said to Mr. Bannan, that he was prepared to make a motion to have the judgment opened, but he had concluded that he would not, as his clients would derive an advantage from the judgment, in another action which was pending, in which his clients were interested.
    Errors assigned, i. The court erred in rendering judgment against the defendants by default, after they had both appeared in their proper persons.
    2. The court erred in refusing to set aside the judgment and inquisition.
    3. The court erred in rendering final judgment on the inquisition.
    4. The interlocutory judgment entered on the 28th September, 1827, is uncertain and void, and is no foundation for a writ of inquiry of damages.
    Loeser, for plaintiff in error.
    This is a judgment by default of appearance, entered in vacation on the same day the declaration was filed, when there was, in fact, an appearance by the defendants. The agreement by which the action was instituted was an appearance, and the defendants were entitled to notice of any further proceeding,

      Bannan for defendant in error.
    The agreement amounts to nothing rnore than a waiver of the writ of summons, whereby that expense might be saved, the words are “ and we agree that the sameproceedings be hadthere.on, as though we had been regularly summoned.”

    The judgment was not void, and if it is irregular, the party must take the earliest opportunity to have the error corrected. Here the defendants knew of the judgment the next day after it was entered; at the next) term their attorney refused to make the application to have the judgment opened, and did not make it until after two terms had elapsed, and the plaintiffs had been put to the expense of executing a writ of inquiry of damages. This is an acquiescence which concludes the defendants. 1 Penn. Prac. 92. Morriton v. Wetherill, 8 Serg. Rawle, 502. Tidd’s Prac. 434, 507. 2 Arch. Prac. 201. Cochran v. Parker, 6 Serg. Sf Rawle, 549.

      Buchanan, in reply.
    The judgment being erroneous, the attorney of the party had no power to release the errors: and much less should his loose declarations be so construed as to conclude the defendants. By a rule of the court of Schuylkill county, “ no parol agreement between attorneys is binding.”
    The judgment by default was interlocutory, upon which no writ of error would lie, until the writ of inquiry was executed; the defendants, therefore, have taken-the earliest opportunity, and the mode pointed out by law to correct an erroneous judgment: they have not acquiesced. In the case of Ranch v. Becker, 12 Serg. <Sf Rawle, 412, this court reversed the judgment entered upon an award of arbitrators, although the party had entered bail for the stay of execution.
   The opinion of the court was delivered by

Huston, J.,

(who stated the facts of the case.) — It has been contended here, that the judgment was irregularly signed, was erroneous, that defendants had a right to wait till final judgment on the inquisition, and if the inquest awarded a small sum, acquiesce; if a large one, take a writ of error and reverse it.

Perhaps there was a time when such was the law, but much of what was once the subject of a writ of error in England, or of audita querila is now relieved from on motion, and I doubt whether any counsel, would venture to argue a writ of error in England, in such a case as the present. The time and manner of filing a narr, of appearing and pleading by defendant, and of signing judgment for-want of a plea, &c. are matters of practice regulated by rules of court, and the practice of the court, and irregularities in any of these respects are universally remedied by applications to the court, whose rules or practice is supposed to have been violated. Tidd’s Prac. 434, 8 Serg. & Rawle, 502. One universal rule is, that the person complaining of any irregularity, must apply for redress as soon as he knows of the injury. In no court is he allowed to lie by, conceal his complaint, subject the other party to delay, expense, and perhaps total loss, and after all this, to obtain redress for a mistake, of which he had full knowledge as soon as it was committed.

The complaint here is, that the entry of the amicable suit, was in effect, an appearance by the defendants and they were entitled to a rule to plead. The plaintiffs contend, it in fact only amounted toan acknowledgment of service of writ,hut not to an appearance.

I think, the plaintiff was wrong, that the judgment was irregular and would have been, or ought to have been set aside, if the application had been made at the next term. The plaintiff’s attorney seems to have thought so. It was not made at the next nor even the second term. If we reverse here, we take from the Common Pleas all power of regulating their own practice, all controul over counsel, and causes in their court; we assume the controul and supervision of every rule in every cause in the State; and all this, not to effect justice, but to restore an obsolete practice of disregarding right and justice, and deciding every cause according to the strict accuracy and accumen of the pleader.

I repeat, what has been often said, that the several Courts of Common Pleas, have a right to make their own rules, and regulate their own practice. It is possible, a rule of court may be contrary to an act of assembly, and illegal. I don’t say, we will not in any case reverse for a practice under such a rule. The rules and practice followed in this case, are salutary and wise, and the decision of the court on these rules, right. I am not sure, that such a decision as that complained of in this case, depending on several rules of court, and the practice under them, and where the facts were brought before the court on affidavit, is tha subject of a writ of error. I do not say, however, that we will not in any case reconsider a case so brought before us.- In the present case, the judgment of the court below is affirmed.

Judgment affirmed.


author: Ross, J.

text:
    MARTIN WENGERT and ABRAHAM WENGERT, executors of LUDWIG ZEARING, deceased, against DAVID BEASHORE.
    An action for maliciously suing out a cafiias ad resfiondendum, and holding the defendant to bail, is not to be favoured; and elear proof of want of probable cause is necessary to support it.
    As a general rule, it may be laid down, that such an action cannot be supported, when in the original action, the defendant was obliged to set up some collateral matter by way of defence, which did not appear on the declaration or the face of the instrument declared on.
    Where such original action was brought by executors, maliciously and without probable cause; in an action therefor against them, they must be sued in their individual capacity ; a writ and declaration calling them executors, is not mere description or surplusage, but is error.
    Error to Lebanon county.
    This was an action on the case brought by David Beashore, against Marlin Wengert and Abraham Wengert, executors of Ludwig

      Zearing, deceased, for maliciously suing out a capias ad respondendum against him, and requiring bail without probable cause of action.
    The facts of the case were these:' Ludwig Zearing, in his lifetime, to wit, in 1817 held David Beashore’s bond for three -hundred and ninety-six dollars, and upon his death, it came into the hands of the defendants Martin Wengert and Abraham Wengert, his executors, who to April term, 1824, brought suit upon the said bond by issuing a capias ad respondendum, and required bail in live hundred dollars; the same day it issued, the defendant Beashore, was taken by the sheriff, and not being able to get bail, he was imprisoned. A rule of reference was entered by the defendant, and arbitrators were chosen, who met on the 12th April, 1824, the defendant then proved the consideration of the bond, and that it had failed; the arbitrators reported no cause of action. Upon the report being filed, the plaintiffs Martin and Abraham Wengert, by advice of their counsel, refused to discharge the defendant Beashore, from custody. No appeal was entered by the plaintiffs’, and after the twenty days had elapsed, the defendant was discharged on habeas corpus, and brought the present suit to recover damages.
    The following points were put to the court by the defendants, upon which they requested them to charge the jury:
    1. That this action cannot be supported by the plaintiff, in its present form.
    2. That no action for a malicious prosecution can be maintained against executors.
    3. That the plaintiff has misconcieved his remedy; that if any injury has been sustained by him, he ought to have sought redress, by an action for false imprisonment against the defendants in their individual capacity, and that no action can be maintained by the plain tiff against the defendants in their representative capacity, as the executors of the said Ludwig Zearing, deceased, for the supposed injury set forth in the declaration.
    4. That the plaintiff, before he can recover in this action, must prove malice in the defendants, and want of probable cause at the time suit was brought.
    5. That when a plaintiff sues out a writ, such as in the present case, founded on the bond or writing obligatory of the defendants, no action for a malicious prosecution can be supported; for the want of probable cause, does not, nor cannot exist.
    6. That defendants having called upon counsel, and issued the writ in pursuance of his directions, and acting as executors of Ludwig Zearing, excludes in law, every presumption of malice in the defendants.
    7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David Beashore, are not circumstances sufficient in themselves to warrant the jury in finding a verdict in favour of the plaintiffs; unless the defendants knew the want of probable cause at the time they brought their suit. That the jury cannot infer malice in the defendants from the circumstance of their failing to recover in their suit on the bond against David Seashore.

    To which the court answered:
    1. This action can be supported and maintained by the plaintiff in its present form, the styling of the defendants executors is merely a personal description.

      2. It cannot be maintained against them as executors.
    3. This suit is not against them as executors, in their representative character; and they are answerable in this suit, in their individual capacity, notwithstanding they are styled executors, and the plaintiff has not. misconcieved his remedy.
    4. The jury must be satisfied, from all the circumstances given in evidence, that the suit against the present plaintiff was brought maliciously, and without probable cause; malice and want of probable cause both are necessary, and must be shown, in order to •maintain an action for a malicious prosecution, either of a civil proceeding or criminal prosecution. Express malice is not required to be proved; malice may be implied. For if the plaintiffs case proves that the proceedings against him were groundless, and that the defendants knew it; then malice will be implied. Holding to bail where' the plaintiff has no cause of action, and knows that he has no cause of action, if done for the purpose of vexation, entitles theparty aggrieved to an action for a malicious prosecution.
    ■ 5. Want of probable cause may exist where a suit is brought on a bond. The circumstance of a suit being founded on a bond or writing obligatory, is no bar to an action for a malicious prosecution.
    6. If upon a fair representation of facts to the counsel, by the defendants, he advised the bringing of a suit upon the bond, and guided by that advice, they brought suit on that bond, the law will not impute malice to the defendants; for the clients ought not to suffer by the honest mistake of their counsel, if they innocently acted by his advice. But if they did not make a fair representation of facts to their counsel, and knew the proceedings on the bond were groundless, the law will impute malice to the defendants. Whether the suit was brought maliciously and for the purpose of oppressing the defendant, is a conclusion of fact to be drawn by the jury from all the circumstances of the case. It does not follow from the plaintiffs failure to recover in the action on the bond, that the suit was brought with a view to vex, and improperly injure the defendant in the case.
    7. The want of probable cause alone, and the defendants having failed to recover in the suit which they brought against David

      Beashore, are not circumstances in themselves sufficient to warrant the jury in finding a verdict in favour of the plaintiff, unless the defendants knew the want of probable cause at the time when they brought their suit. The jury cannot infer malice in the defendants, from the circumstance of their failing to recover in their suit on the bond.
    The charge of the court was assigned as error;»

      Kline and Weidman, for plaintiff in error,

      J. A. Fisher, for defendant in error.
   The opinion of the court was delivered by

Ross, J.

-The action for malicious prosecution, is Very different from that of maliciously and vexatiously arresting and holding defendant to bail. Many reasons might be assigned why the one should be sustained, which would not apply to the other. In the former, the defendant, even if acquitted, recovers no costs; in the latter, a verdict in favour of defendant entitles him to costs. In the former, the defendant has no other redress- for any injury he may have received; in the latter, he may cite the plaintiff before a judge to shew his cause of action, and if no sufficient cause be shown, he will be discharged on common bail. In the former, if felony, punishable with death, he may not be allowed to give bail; in the latter, the defendant is always allowed to give bail. In the former, he can only be exonerated by a trial and acquittal; in the latter, the defendant may have any oppressive, vexatious-or illegal process set aside, on motion to the court. In the former, the defendant cannot demand a writ of error as a matter of right;, in the latter, he is entitled to it. In the former, the defendant’s life may be put in jeopardy; in the latter it never can; no punishment can be inflicted on him. In the former, the prosecutor gives no bail; in the latter the plaintiff, until of late, must have given real pledges, who on failure of plaintiff to prosecute his suit, &c. were liable to be amerced, and the.plain tiff himself was amerceable pro falso clamare, liable to costs. See 1 Sel. Prac. Introd. 49, 50, 59. Bul. N.B. 11. The action for maliciousprosecution, properly so called, has often been brought in this State, and sustained by the courts; the action for maliciously and vexatiously arresting and holding defendant to bail, it is believed, has seldom been brought in this State, and has never received a judicial recognition. Yet it must be understood that no doubt is intended to be intimated of its lying in proper cases, and under proper restrictions; but it is not to be favoured. Enough has been said to show, there is a substantial difference between the two descriptions of action. Yet from not attending to the want of similarity between them, they have been, in modern times, considered as analogous. The same decisions and principles of law have been applied to both.

The practice of the courts in England, as well as the law as to' arrests, and holding to bail, is very dissimilar from the practice in this State. In England, by the statute 12 Geo. I. c. 29, certain requisites must be complied with, before any one can be arrested on civil process. The courts strictly require a positive affidavit; the sum must be specified in it, which sum must be endorsed on the back of the writ or process: for which so -endorsed the sheriff shall take bail, and for no more. If no such affidavit and endorsement be made, the defendant is not to be arrested, let the amount of debt be what it may. 1 Sel. Prac. Introd. 59.

In this State, it has long been the practice to issue the capias without any affidavit, except in a very few cases sounding exclusively in damages, on which the attorney directs the endorsement of such bail as he may think sufficient. If the defendant think himself aggrieved, he may apply to a single judge in vacation, or to the court in term time, to be discharged on common bail; or to have it mitigated- Until application is made to the judge or to the court, the affidavit of the debt is seldom made; and even then the plaintiff’s- attorney often obtains time to- notify the plaintiff to come in and make the requisite affidavit. Many of those suits are brought with a view to submit them to arbitration, under the law of 1806, by which means they partially obtain, it is said, the benefit of a bill of disclosure; acquiring from the investigation before the arbitrators, the evidence of a cause of action they had nothing but a mere suspicion of before.

By the rules of court, where the affidavit is not positive, but yet sufficient to convince the judge that there is- good cause of action, especially where it is founded on a bond, note, letter, or other paper signed by the defendant, the judge may, at his discretion,hold the defendant to bail: thus giving a power to the judge to dispense with the production of a positive affidavit of the debt and the amount thereof, if a paper signed by the defendant is produced. The rule indicates in strong terms, and in language that cannot be misunderstood, that a bond signed by the defendant is a probable cause of action. These matters have been brought into view for the purpose of shewing, that instead of relaxing the restrictions and limitations to which a malicious and vexatious suit is subjected in the courts of Great Britain, there is every reason here, that exists there, with many additional ones peculiar to this State, arising out of the nature and mode of our proceedings, why these restrictions and limitations should be increased and not diminished. In the case of Sterling against Adams, reported in 3 Day, 411, in which most of the,cases are brought under review, analyzed, commented upon, and contrasted with great ability, the counsel for the plaintiff admitted “ that a person must be guilty of a very gross abuse of the right of suing, before he will be liable for vexation- To the exercise of that right great indulgence is given. If the object of the plaintiff be in any degree to obtain right, his temper is not to be regarded. When all the facts, known or believed by the plaintiff! or existing without his knowledge, would afford any probability to an honest mind that there ought to be a recovery, probable cause in law exists, and a suit, however unsuccessful, injurious, or vindictive, will entitle the defendant to no remuneration. Here is often great wrong and no remedy — it is “damnum absque injuria.” A man, from a málicious motive, may take upon himself a prosecution for real guilt, or he may from circumstances which he really believes, proceed upon the apparent guilt, and in neither case, is he liable to this kind of action, 6 Mod. 73. To support it there must be express malice, without any colour of cause. Holt 4. 6 Mod. 25. He may therefore from malicious motives, proceed to collect a real debt by the process of capias and bail, or he may from circumstances which he really believes, proceed upon the apparent evidence of debt, to collect it by capias and bail, and in neither case be liable to an action for vexation. The plaintiff’s declaration in •this action shews, that there was a probable cause for the original suit. It admits the suit was founded on a bond given to the testator, Ludwig Zearing, in his lifetime. Want of probable cause cannot be implied from an acquittal of a defendant in a criminal prosecution, or a failure to recover in a civil suit. 2 Selw. N. P. 1057 in note 2. Day's Coke upon Litt. 161, a, note 297. Although an action for a malicious prosecution will lie, it is not to be favoured. 1 Salk. 15. Bul. N. P. 14. 1 Wilson, 231. It is difficult to define with precision in what cases, and under what circumstances this action will lie. It may however be safely laid down as a general proposition, that, wherein the original action the defendant is-obliged to set up some collateral matter by way of justification, or defence, which does not appear on the declaration, or the faceof the instrument declared on, probable cause is admitted. This proposition is supported by precedent and reason. 3 Day's Rep. 432, These principles ■when viewed collectively, manifestly shew, that the plaintiffs’ in error had sufficient probable cause to shield them from this action, even if the suit had been against them in their individual capacity. But this suit is clearly against them in their representative capacity as executors. It is for acts done by them as executors. The declaration recites that the writ was issued by them as executors on •a bond given to the testator, and the proceedings which took place on that writ, as the foundation of defendant’s claim, to damages. But it is contended that all these recitals may be rejected as surplusage, as merely descriptive of the persons; and so the court below charged the jury. The answer to this position will be found ■in Robins v. Robins, 1 Salk. 15, in which the complaint was that the plaintiff .caused the defendant to be arrested and held to bail, where by law, no bail was required — Per Holt. Ch. Jus. “ This is a tender action, you must shew that the plaintiff being indebted to the defendant in so much, the defendant took out such a writ for so much more, on purpose to hold him to bail, you should set out the ' writ.” If it is necessary to set out the writ in the original suit, it is equally true, that it is necessary to prove it as set out. The record of the original action must be produced on the trial, and given in evidence 2 Selw. N. P. 1062. It must correspond with allegations in the declaration, or it cannot be given in evidence. It therefore cannot be considered as surplusage. It is an essential and material .allegation without the proof of which the plaintiil could not support his action, The declaration ought to set forth the sum due, and the process specially, and that the first action is determined, See 2 Selw. N. P. 1060. Yelv. 110. The action then is against the plaintiffs in error as executors, for acts done by them as executors. It is the first attempt, it is believed, that ever has been made to support such an action. No such case has been produced, and it is belieyed none such can be found in the books, or the industry of the defendant’s counsel would have discovered it. It would be .an extension of the remedy by this kind of action, which, it has already been shewn, ought never to be permitted. Executors can ¡only be made liable in their individual capacity, if at all, for acts done by them in their official character, by such irregular, improper and gross misconduct as would render them tresspassers ab initio. In such a case, trespass vi el armis, and not case would be the remedy.

Deplorable would be the situation of executors, if they would be made liable in actions for vexatious suits. They are bound to use every diligence in collecting decedent’s debts. Not only to know themselves that they could not be recovered, but to be able to shew satisfactorily in the settlement of their accounts, to a querulous legatee or creditor, that they could not be collected. They may knot? a book debt or note is barred by the statute of limitations; but they cannot know that the debtor will avail himself of that defence. They may know that a bond will be presumed to have been paid from lapse of time; or that the obligor has some defence .arising out of other transactions, or depending on some collateral matters involving intricate questions of law and fact. But they are pot therefore to refrain from bringing suit; nor tobe deterred from doing so, by being in danger of subjecting themselves to an action for vexation, This would be contrary to policy and common sense, because it would be to say to them if you neglect to enforce the collection of the decedent’s debts with all due diligence, you shall be liable for such neglect, but if you attempt to do it, by the ordinary process of the law, you must run the risk of rendering yourselves liable to a vexatious and malicious suit. This would be placing executors on the bed of Procrustes. It therefore appears that on an examination of this cause on principle, this action cannot be supported. The charge of the court on the first point that it could be supported, and that styling the defendants executors, was merely personal description, was incorrect. If it be examined by a comparison with the decisions in each particular case, where the question has arisen, what shall amount to a reasonable or probable cause, it will be found that the court were equally incorrect. In this cause, the bond to the testator in his lifetime, coming to the hands of the executors, appearing on the face of it, to be due and unsatisfied, was much stronger probable cause than has been considered in most cases found in the books, sufficient to protect plaintiffs from actions for malicious prosecutions or vexatious suits. Many of the cases will be found collected in Day's note to Coke upon Litt. page 161, a, note 297, and in 3 Day's Rep. 411. Selw. N. P. 1057-8. A sufficient probable cause is laid in the defendants declaration in this very action; no averment being laid that the plaintiff knew the bond was paid, or in any way satisfied. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances, alledged to shew it probable or not probable, are true and existed, is a matter of fact; but whether supposing them true, they amount to a probable cause, is a question of law. 1 Wilson, 232, Day's Coke upon Litt. 161, a, note 297. Bul. N. P. 14. The plaintiffs in error had, clearly, reasonable and probable cause for arresting the defendant and holding him to bail. The court should have so instructed the jury. They should have informed them that the fact not being disputed, but expressly set forth in defendant’s declaration, that the original action was founded on a bond, which was given to Zearing in his lifetime, and which came to the hands, of plaintiffs in error as executors, appearing on its face to be due and unsatisfied, was a sufficient probable cause to justify the plaintiffs’ in error in arresting and holding defendant to hail, and that the verdict must be for the plaintiffs’ in error, There was also error, therefore, in the charge on the fourth and fifth points. The other points of the charge are too vague to give any accurate information to the jury. Upon the whole, it sufficiently appears that in this cause, the plaintiff below should have beén nonsuited, or not permitted to sustain his action.

Judgment reversed.


author: Gibson, C. J.

text:
    SAMUEL FINNEY’S administrators, against the COMMONWEALTH OF PENNSYLVANIA, for the use of JOHN ALLEN.
    IN ERROR.
    Lien creditors are to look to the application of the fund on which they have a lien, at their peril: every thing, which a due attention to their interest would have entitled them to receive, being considered as paid by operation oflaw:, as regards the debtor.
    The defendant in a judgment on a recognizance for the price of land, taken at a valuation in th.e Orphans’ Court, gives security for the stay of execution allowed by the act of assembly; after which the land is sold by the sheriff, and the money brought into court. The plaintiff, and other persons entitled, agree that the debts of a deceased brother, who died in the lifetime of the father, should be paid out of his estate, as liens, although in point of fact they were not liens, and the proceeds of sale are thus exhausted, and not applied to pay the judgment, which was a lien; Held: That the liability of the surety on the recognizance was discharged, and the agreement of the defendant in the judgment to the misapplication of the fund will not, as respects .the surety, alter the case.
    Error to tbe Court of Common Pleas of the county of Dauphin.
    This was a scire facias at the suit of the Commonwealth of Pennsylvania, for the use of John Mien, one of the heirs and legal representatives of Joseph Allen, deceased, against Ann Finney, Thomas Finney and William Finney, administrators of Samuel Finney, deceased, bail of James Allen, issued upon a recognizance entered into by Samuel Finney, as tbe surety of James Allen, to obtain the stay of execution under the act of assembly, upon a judgment in favour of the plaintiff against the said James Allen and Christian Forney. This judgment was obtained on a recognizance given by James Allen, with the said Forney as his security, in the Orphans’ Court, upon taking the real estate of his father, Joseph Alie??, deceased, at the appraisement. The recognizance, on which this 'scire facias issued, was entered into by James Allen, the defendant, on the 3d of January, 1S20; and the plaintiff in the judgment, to December term, 1820, issued an execution thereon, which was levied on the land of James Allen, and that was sold for three thousand and fifty dollars, which was brought into court, and auditors appointed to ascertain the debts due by Joseph Allen, deceased. These auditors reported the debts due by the estate of Joseph Allen, deceased, which amounted to the sum of seven hundred and twenty-eight dollars and twenty-five cents; and also, that by an agreement of the surviving heirs and legatees (of whom the plaintiff John was one,) of the said deceased, in writing, it was stipulated that the executors of the said deceased should pay the debts of Tristram Allen, one of the sons of Joseph, who died in his fathers lifetime, out of tbe estate of the said Joseph, and that considering the debts of Tristram, under this agreement, as the debts of Joseph, they reported those debts. They amounted to the sum of two thousand four hundred and fifty dollars ; and among them there was a judgment in favour of Samuel Finney, the defendant’s intestate, for one hundred and thirty-six dollars and sixty-eight cents. The report on the 24th March, 1823, was confirmed by the court, and a decree made that the money should be paid over according to the report.
    This scire facias was brought to April term, 1823, and a verdict under a charge of the court favourable to the plaintiff, which was excepted to, having passed for the plaintiff, error was brought by the defendant.

      Fisher, for the plain tiff in error,
    argued, that the application of the proceeds of the sale of the real estate of James Allen, to the payment of the debts of Tristram, (which were no lien on the fund,) by the agreement of the plaintiff, instead of applying them to pay his judgment against James, which was a lien, discharged the liability of the defendant on his recognizance upon that judgment.
    Any act of the obligee which affects the surety will discharge him. Commonwealth v. Miller. 8 Serg. Rawle, 452. Diermond v. Robison, 2 Yeates, 324. Here the means of satisfaction were in the hands of the plaintiff, he parted with them, and cannot now resort to the surety. Ludlow v. Simond, 2 Caines Cases in Error, 29. 30. By any act which changes the situation of the surety he is discharged. Rathbonev. Warren, 10 Johns. Rep. 588. 590. 3 Wils. 539. Phillips v. Thompson, 2 John Ch Rep. 418. Bellas v. Haasf 16 Serg. & Rawle, 252.

      Douglas and Elder, contra.
   The opinion of the court was delivered by

Gibson, C. J.

In the bank of Pennsylvania v. Winger, 1 Rawle, 295, it was held, that, lien creditors are to look to the application of the fund at their peril, every thing which a due attention to their interest would have entitled them to receive, being considered as paid by operation of law as regards the debtor. So little was this principle doubted that some of the judges inclined to think it superior to the equity of a creditor who has but one fund, against a. prior creditor who might otherwiseresortto either of two; andit was barely held that it is not. But no one entertained theleastdoubt that where the creditor is entitled to satisfaction out of the proceeds of the land both at law and in equity, a loss shall be borne by him whose supineness occasioned it; much more so, where it has been produced by his positive agency. What then is the case here ? The defendant in a judgment on a recognizance for the price of land taken at a valuation in the Orphans’ Court, gives security to entitle himself to the stay of execution allowed by the act of assembly, after which the land is sold by the sheriff and the money brought into court,' The plaintiff and the other persons entitled to the estate of the decedent, appear before auditors appointed to report the state of the liens, and agree that the executors of a deceased brother who had died in the lifetime of their father, should pay his debts out of the estate, in consequence of which, these debts are reported and paid as liens, although indisputably not so in fact; and the proceeds of the sale being thus exhausted, the plaintiff proceeds on the recognizance given to obtain a stay of execution. Now, to say nothing of the rule which protects a surety, where the creditor has parted with the means of obtaining satisfaction from the principal, it is plain, here, that if the levy and sale were actual satisfaction ofthe original judgment, there could be no breach of the condition of the recognizance. But no one will pretend that the plaintiff could have had further recourse to the original debtor, had he not consented before the auditors, to apply the proceeds of his land to the payment of his deceased brother’s debts. But he had no right thus to consent, in prejudice of the rights of his surety for whose indemnity the land stood pledged by the lien of the judgment, to the benefit of which he would have become entitled by payment of the debt, but of which benefit he will be deprived, if he is compelled to pay it now, after the fruits of the lien have been swept away by a misapplication of them. The consent of the original defendant, then, being fraudulent, is to belaid out ofthe case, and the original judgment treated as if it were satisfied even as to him; and if so, it would be strange, if payment by him would not discharge the debt in favour of his surety. Any other construction would enable the children to manage matters so as not only to enjoy the full benefit of their father’s estate, but to cast the burthen of a deceased brother’s debts upon a stranger; and this monstrous result would be established by confirming the judgment of the court below. On the other points touched, but not pressed, we deem it unnecessary to express our opinion.

Rogers J. and Huston J. did not hear the argument, and took no part in the judgment.

Judgment reversed.


text:
    ROAD from the JONESTOWN ROAD, to the UNION CANAL RESERVOIR.
    A practice in the court of Quarter Sessions of appointing twelve freeholders as reviewers of a road, from which the parties in interest shall strike •six, the remaining six being the reviewers, is contrary .to the express provision of the law, and erroneous. But when the petitioners for the review pray for the appointment oitwelve, and then refuse to strike, because some of the persons appointed are exceptionable, it is not error in the court of Quarter Sessions to refuse to appoint others in .the place of those four, and-confirm the view.
    ‘Certiorari .to the Quarter Sessions of Lebanon County.
    At August sessions, 1828, a petition \vas presented for a view of a road, which wa s granted. The viewers reported in favour of the road, to November sessions, 1828, to which exceptions were filed, which upon argument wére overruled, and the report confirmed nisi, when those who were opposed to the road petitioned the court to appoint, (according to their practice,) twelve freeholders, from whom the . parties might strike six, and the remaining .six should review the said road. The court having appointed the twelve freeholders, the parties met in vacation, as was the custom, to strike three -each, when the petitioners discovered that four of the twelve nominated by the court, Were relations ef.the petitioners for the view, and for that reason refused to strike,- but at the next sessions petitioned -the court to appoint others in their room. This the court refused .to do, and on motion confirmed the report of the viewers. ' 1
    There were several errors assigned, none of which were insisted apon, hut one. That the court erred in not appointing a competent number of freeholders to review the road.

      Wádman, for the review*

      Nanis, for the view.
   The opinion of the court was delivered by

Huston, J.

-The complainants in this case have filed a number •of exceptions to the petition for, and report of this road. ' There is ■no ground for any of them, except one; and that one not filed until more than a year after the return to this court. The first section -of the act of the 6th April, 1802, for laying out roads, &c. directs, ■that the court, on petition, shall in open court, appoint six discreet .and reputable freeholders, &c. to view, (fee. In the twenty-second .-section, it is enacted that in all cases where the court of Quarter Sessions are authorised to grant a viewy for laying out a road, &c. .they are hereby authorised and directed, on application to then?, made for that purpose, to grant a -review of the same, at the ex» pense of the parties applying: provided, the application be made at the next term of the Quarter Sessions after the report has been made on the first view. The evident meaning of the law, the usage under it, and the former act of which it is in this respect a transcript, is, that the review is to consist of six discreet and reputable inhabitants, and like the viewers, they have been, and ought to be appointed in open court. To be sure, when the names of the reviewers are announced, it sometimes happens, that one or more of them, is objected to in open court, as being connected, in some way, with the parties contending, or as being affected by the location of the road, and in such case the court substitute the names of other persons, free from objection; all this, however, is done in open court. It seems there is a practice in Lebanon county, that the court make a list of twelve reviewers, and this is left in the office of their clerk, and after the court, those in favour of, and those opposed to the road, each strike out three names, and the remaining six are the reviewers. No practice can be more calculated to produce unfair results than this. No one of the petitioners is authorised to strike for the rest.. Any one of the petitioners for the view, or for the review, may then appear and select men to suit his individual purposes. It was no .doubt adopted as a rule, to save trouble to the court, and under an idea that it was fair. It has not, however, the sanction of the law, and the unanimous opinion of this court is, that it is a bad and illegal practice. No one county, nor several counties, can adopt a usage contrary to the rest of the State, and to- an express provision of the law. On the return of the report in this case, certain persons presented a petition to the court to appoint twelve reviewers. The court did so; after the court, the parties, or some of them, and their respective counsel, met to strike out three each. The petitioners for the review objected to the list, because a brother of one of the persons who petitioned for the road, was one of the twelve. To be sure he could be struck off, but that would not satisfy, they refused to strike altogether. There was of course no review, and the court confirmed the first report, and the other party took their certiorari to this court. Certainly if the court of Quarter Sessions had refused to grant a review, it would have been error, or if the petition had been to appoint six reviewers, and the court had appointed twelve, it would have been error. The party, however, and the court acted under their own rule. The object of that rule was to give six reviewers, to none of whom any exception could be taken. If the name objected to, had been struck by those objecting to him, the rest of the list would have been unobjectionable, which was all that in reason any party could ask. Every court must have the construction and application of its own rules; and it must be a strong case in which we will reverse, because a court put a wrong construction on its own rule. The Quarter Sessions thought the c onduct of the complainants captious, and intended for delay, and they thought the object of their rule was to give an opportunity of obtaining a -review, composed of men, to none of whom there was any exception. There was such opportunity given in this case, and if no review was had, it was owing to the fault of the petitioners ; a majority of the court overrule the exceptions, and affirm the proceedings of the Quarter Sessions, because we are unwilling to sanction the conduct of parties, who by their own mistakes, or their own obstinacy, occasion irregularities, and then endeavour to take advantage of them, by applying to a superior court.

Proceedings affirmed.

•Smith, J. and Ross, J. dissented.


author: Smith, J. Gibson, C. J.

text:
    GEORGE ULRICH, with notice to HENRY NEWMAN, terre-tenant, against JACOB VONEIDA.
    A bond, -with a -warrant of attorney to confess judgment, authorizes the entry of but one judgment: the entry of a second, upon the same warrant, is wholly irregular."
    It is competent for a terre-tenant, who is brought in by scire facias to revive a judgment, to show that the original judgment was entered without authority, was fraudulent, or otherwise wholly irregular.
    Error to the Common Pleas of Lebanon county.
    On the 15th February, 1820, a judgment was entered in the Common Pleas of Lebanon county, by virtue of á warrant of attorney, Jacob Voneida v. George Ulrich, for five hundred dollars, and within the period of five years, to wit: to April term, 1825, a scire facias issued to revive that judgment, with notice to Henry Newman, then terre-tenant of the land bound by the original judgment. At August term, 1825, the defendant filed an affidavit of defence and pleaded, payment with leave, ¿ye. The cause was then removed into the Circuit court, from which it was remanded to the Common Pleas, in May, 1828, where it was down for trial in August, 1828. On the 7th August, Weidman, attorney for the defendant, moved the court for a rule to show cause why the entry of the original judgment should not be stricken from the record, together with all entries and proceedings thereon; on the ground that a judgment had been previously entered, upon the same warrant of attorney, in the county of Berks. On argument, the court refused to grant the motion. 14th August, 1828, the defendant entered the plea of mil tiel record, upon which issue was joined, which the court proceeded to try. The plaintiff having shewn the original judgment in Lebanon county; the defendant, to maintain the issue on his part, called upon Norris, the plaintiff’s attorney, to produce the bond and Warrant upon which the original judgment was entered, which he refused to do. The defendant then gave in evidence the copy of a record of a judgment entered on the 14th February, 1820, in the county of Berks, on a bond and warrant of attorney of the same date and terms, as were recited in the judgment which was then trying. After argument, the court decided in favour of the plaintiff, to which exception was taken by the defendant.
    The defendant’s counsel then asked permission to add the plea of non est factum, as to the bond and warrant, upon which the original judgment was entered, and that said judgment was entered without authority. This plea was objected to by the plaintiff’s counsel, and rejected by the court, to which exception was taken by defendant-
    The jury being then sworn, and the plaintiff having given in evidence the record of the original judgment, the defendant’s counsel asked the court to- discharge the jury, and delay the trial of the cause, upon his exhibiting the record of a judgment entered in the county of Berks, upon the same warrant of attorney, but prior to the entry of the judgment in the county of Lebanon, and upon parol proof, that an endorsement on the said bond and warrant, which was then in possession of plaintiff’s attorney, shows that the. judgment in each county was entered upon the same warrant, and then again asked the court to grant the defendant a rule to shew cause why the original judgment should not he vacated and stricken from the record; which motion was refused hy the court, and to-, which the defendant took exception-
    The defendant, having proved a notice to Norris, counsel for plaintiff, to produce the bond and warrant of attorney, upon which the original 'judgment was entered, offered parol evidence that there was an endorsement on said bond, showing that a judgment had been entered by authority thereof, in the county of Berks, prior to the entry in the county of Lebanon, which was objected to by the plaintiff, the objection was sustained and exception taken hy defendant. The defendant then offered the record of the judgment in Berks county, to show fraud in the plaintiff, in entering the same judgment again in Lebanon, which was objected to, overruled, and exception taken by defendant. A verdict and judgment for the plaintiff were rendered in the court below, and this writ of error was sued out hy the defendant. Errors were assigned in the opinion of the court, as contained in the several hills of exception.

      Weidman, (with whom was Kline,) for plaintiff in error,
    admitting the rule that a record, when its validity is put in issue ip the same court, must be tried upon inspection, yet contended, that this case did not come within that rule, for by the 28th section of the act of 24th February, 1806, Purd. Dig. 409, a special mode was provided of creating a lien upon real estate. The prothonotary is authorised to make an entry of a note, bond or other instrument of writing, which contains an authority to confess judgment against the party, and the same shall be a lien on his real estate. There S no act of the court necessary, nor can any be legally exercised, it is not therefore, a judgment of the court which must be tried by inspection, but if fraud on the part of the prothonotary, or want of authority, shall be alleged, like all other facts they must be referred to the jury.
    If the court had a right to try these facts, they should have decided in favour of the defendant. In Martin v. Rex, 6 Serg. Sp Rawle, 296, the very point which arises here is settled, that á judgment entered upon a warrant of attorney, upon which a judgment had been previously entered in another county, is irregular: in this case the court had all the facts before them, which made it abundantly plain that this warrant of attorney was functus officio by. the entry of the judgment in Berks county, the same is laid down in Fairchild, v. Camac, 3 Wash. Ct. Ct. Rep. 558. The court erred also, in refusing the special plea offered by the defendant: by the act of the 21st March, 1806, section 6, Purd. Dig. 411, the right to alter the pleadings, so as to effect the merits of the cause, is given even upon the trial; and to refuse that right is error, Sharp v.- Sharp, 13 Serg. Rawle, 445. The case of Hartzel v. Reiss, 1 Bin. Rep. 291, supports the position that upon the trial of the scire facias suit, even Ulrich, the original defendant, might have given in evidence, that the original warrant of attorney was exhausted. The rule of law that no evidence shall be given as a defence to a scire facias, which goes to effect the legality of the-original judgment, only applies to parties and privies to that judgment, and it is always competent for a third person who becomes interested, to show that the judgment is illegal or fraudulent; and this may be shown, even in a collateral action, Griswold v. Stewart, et als, 4 Coweu’s Rep. 457. Here Newman, the terre-tenant, was a purchaser of the land for a valuable consideration, and the first opportunity which the law affordéd him to defend against this illegal judgment, was taken advantage of. He could not have sustained a writ of error to reverse the original judgment, Bul. N. P. 232. Newman having therefore done every thing which he could do, to divest his land of this illegal lien, the court having refused to open the judgment, unless he can avail himself of his defence ’ in the scire facias, his case is an anomaly in the law — a legal defence without an opportunity of making it. It was certainly competent for the defendant to show, that the plaintiff acted fraudulently in entering the judgment a second time, and that the prothonotary knew the fact also, that the judgment had been entered before, and fraud is a matter of fact for the jury; and if found by them, it would have destroyed the plaintiffs right to recover, 1 Madd. Chan. 300, but the court would not permit us to give this evidence.

      JYorris, for defendant in error.
    The motion by defendant’s counsel on the 7th August, 3^28, to vacate the judgment, was the legal and only remedy of the party complaining of the entry of the judgment without authority. Cook v. Jones, Cowpeds Rep. 227. 2 Strange, 1043. Cases Temp. Hardwick, 220. Strong v. Tomkins, 8 Johns. Rep. 77. Cassell v. Cooke, 8 Serg. Sf Rawle, 296. JVeffv. Barr, 14 Serg. 4> Rawle, 166. In/sleY. Williams, 15 Serg. Sf Rawle, 135. Kabach v. Fisher, 1 Rawle Rep. 323.
    The defendant, upon his motion to vacate, was fully heard. All the evidence offered on the trial, under the plea of payment and notice, was given to the court, and after hearing it, and the counsel of George Ulrich, in support of it, the court rejected the application. This judgment upon motion, and on a disclosure of the merits of the defendant, is decisive against him. It is a res judicata. 17 Serg. ¿f Rawle, 278. 6 Term Rep. 471. 7 Term Rep. 155, cases under the annuity act of 17. Geo. III. ch. 36. After the judgment of the court, on the motion, another trial of the same matter could not be granted to the defendant in the same or any other court, under any form or course of proceeding. All the evidence therefore offered by the defendant on the trial under the plea of payment, to impeach the validity of the original judgment was properly excluded, and this disposes of the 2d, 3d, 4th and 5th bills of exception. But, for another reason, this evidence could not be received. To a scire facias upon a judgment, and under the plea of payment, the law is settled that in no case, under any circumstances, can the yalidityor merits of the original judgment be enquired into for the purpose of furnishing a defence. Where a judgment has been obtained surreptitiously, it will be vacated on motion: and where it is suffered by confession or default, if there he a defence, the court will open the judgment and let the defendant into a trial. Cowper, 727. 8 Johns. R. 77. 1 Bin. 289, 4 Bin. 61. 1 Serg. 8/ Rawle, 540. 5 Serg. Rawle, 65. 11 Serg. 8/ Rawle, 155. 15 Serg. 8/ Rawle, 135. 1 Rawle, 323. 14 Serg. fy Rawle, 170. The issue in law, upon the plea of nul tiel record, embraced in the first bill of exceptions, was tried by the court, and found for the plaintiff Error cannot be conceived in this, and therefore none has been shown. To the decision of the court upon the issue in law, on the plea of a former recovery, the plaintiff in error, has not excepted in the court below — nor is it assigned for error in this court. Even on the argu-> ment, the counsel for the plaintiff in error did not ask the court to permit him to assign this as a matter in which there was error. But there is no error in the replication to the plea,nor in the trial and judgment. The plaintiff may and must reply to a plea of a- former recovery for the same cause of action — first, nul tiel record, upon which issue is taken in law to the court,- and tried by the court, and if the finding be for the plaintiff, the plea is entirely disposed of. But if the plaintiff do not choose to -rely upon the non-existence of the record of the judgment, he may in the second place, together with the denial of its existence, deny or traverse the fact of the recovery being for the same cause ; and the issue is then a mingled one of law and fact, and from our decisions in Pennsylvania, it appears must be tried by the jury. No formal judgment upon the existence of the record is entered by the court. The jury find for the plaintiff or defendant, and judgment is passed upon the verdict. There is no error in this. The want of a formal judgment by the court upon the plea of nul tiel record, when it appears with the plea of payment, and all is found by. the jury, is not error: 8 Serg. Sp Rawle, 228. 6 Serg. Sf Ramie, 544 — 573.
    The plea of a former' suit pending, like all the rest, (excepting payment with leave,) was offered on the trial of. the cause.- The rejection of it requires no answer. A plea in abatement, after a plea in bar, cannot be-received, and if received, it is a nullity. 4 Serg. Sf Rawle, 238. IS Serg. Sf Rawle, 150. The alleged record' of a recovery in Berks, for the same debt, is offered in the fifth bill of exceptions as.evidence to the jury,of fraud in the plaintiff. Under the plea of payment to the scire facias, fraud in obtaining the original judgment cannot be given in evidence. 10 Serg. Sf Rawle, 240. 13 Serg.Sf Rawle, 254. Finally, the justice of the case is with the verdict. For if it were true that judgment had been entered in Berks upon the same bond and warrant of attorney, it appears by the defendant’s plea of a former recovery, that the. judgment in Berks alledged to be for the same debt, was on the 1.5th August, 1828, at the time of the trial wholly unsatisfied; and that not a cent of the debt for which this verdict, was given, had ever been paid. George Uh-ich is insolvent. He had no real estate in Berks county, in 1820, and nothing there which the alleged judgment could bind. He then, and since, has resided in Lebanon county. He then owned a tract of land on Millback .mountain, in Lebanon, intended and fixed by our judgment for the payment of this debt: And to defeat it, he assigned all his land in 1824, to É his uncle, Henry Newman, the terre tenant. Newman, aware of his connexion with his nephew George, in relation to this judgment, when called in as terre-tenant, by the -scire facias, did not dare to take defence. He therefore has no cause to complain of the verdiet and judgment.- Would a court of justice, under these circumstances, relieve the defendant on motion and vacate the judgment in Lebanon? Surely not. Vacating the judgment would vacate the debt, for ever. But assuming the fact that the judgment was first entered in Berks, a chancellor would only grant relief on terms; on securing or paying the debt. 1 Maddótx Chancery, 225, 14 Serg. Sf Rawle, 170. .
   The opinion of the-court was delivered by

Smith, J.

-His honour, after having fully stated the case, said — ■ The errors assigned, impeach the several decisions of the court of Common Pleas, and present as the principal question for our consideration, this point, whether it is competent for the terre-tenant, in this sciref acias, to object to the original judgment, by showing that it was entered without authority, or fraudulently ?

With regard to 'the parties to that judgment, it is conceded, that nothing which would have been a defence in an action upon the bond, could be pleaded or given in evidence upon -the scire facias. But the terre-tenant, who is neither party nor privy, is he concluded? Henry Newman purchased the land of the defendant, for a valuable consideration, after the judgment was entered in Lebanon county. Until the scire facias, with notice to him, was issued, he had, however, no opportunity of questioning its validity. By that writ, he was made a party in interest, and called upon to defend his property, against the operation of the original judgment. The e ffect of the notice was not merely that he should show cause why execution should not issue, but why it should not issue against the land in his" possession, charged with the lien of the judgment. To deny him the right of impeaching the judgment, would be to take away his only remedy, and .make the call upon him for a defence, by the notice of this scire facias, a mockery. In 2 Salk. 600, Chief Justice Holt, says, “upon the scire facias, the terfe-tenants will have notice, and they, being strangers to the judgment, may falsify it.” See, also, 4 Cowen’s Rep. 457. This we consider to be the rule of law, which must govern the present case, and therefore decide; that it was competent for Henry, Newman, 'to shew that the judgment, on which the scire facias issued, was entered without authority, or fraudulently entered. It has been repeatedly determined, that a bond with ¿'warrant of attorney to, confess judgment, authorises the entry of but one judgment; and accordingly that when judgment is once entered, the warrant becomesfunctus oficio. A second or subsequent judgment by. virtue of the same warrant, is therefore, wholly irregular. Add. Rep. 267. 3 Wash. C. C. Rep-558. Martin v. Rex, 6 Serg. & Rawle, 296. 14 Serg. & Rawle, 170.

The court of Common Pleas erred, in denying to the terre-tenant all opportunity of showing, by pleading it specially, or by evidence, under the plea of payment, with leave, &c. that the powers of the warrant of attorney by which this judgment was entered in Leba- - nón county, had been satisfied by a previous judgment, entered on the same bond and warrant in Berks county. We do not think that the decision of the issue upon the plea of nul tiel record,- precluded the terre-tenant from subsequently pleading or showing by evidence, the fact of a prior judgment, entered upon the same Warrant in Berks county. The’question on that issue was this, is there such a judgment in Lebanon county as’ is set forth in the scire facias. This was to be determined upon inspection,- and the judgment was shown. But although the record was fair to the eye; and although th’fc was sufficient to justify the decision, yet- the terre-tenant might, without inconsistency, have been permitted to prove that it was irregular for the reasons before mentioned, and ought not in good conscience, to be- executed upon his land. In’ addition to this, as a judgment has the efiTect of merging the bond in it, it may fairly be eriquired, on another trial, whether a second judgment could afterwards be had thereon- in another county. See Clement v. Bursh, 3 Johns. Cases, 180. We are of opinion, therefore, that the judgment should be reversed.

Gibson, C. J.

Except for excess of jurisdiction, the judgment of a court of record is never void, 3 Inst. 321. Letters óf administration can be vacated only by a judicial sentence, Cro. Eliz. 315; and an order of justices of the peace likewise, -being a judicial act, is not ipsofacto void, but good till it is quashed, 2 Salk. 674. So the judgment of a superior court is voidable only on error, {id.) even in the case of an outlawry, which is expressly declared to be void by a statute, 1 Rol. Rep. 159; and a judgment on warrant of attorney is, in contemplation of law, a judgment rendered by the court. On the plea of mil tiel record, then,- how could the court below en-quire whether the authority on which the judgment was entered, had been exhausted by entering a previous judgment in another • county 1 The defendant had no remedy, but an application to have the judgment set aside, and to that he had-had recourse without success, and probably for a good reason. No one will pretend that-a second recovery for the same cause is merely void, or, where the previous recovery has not been pleaded, even erroneous. The court below, then, had before it a judgment irregular, if you will, ’ but unreversed, which in a collateral proceeding between the same parties, it was proposed to destroy. In Share v. Becker, 8 Serg. & Rawle, 241, the defendant in a scire facias on a judgment upon a report of arbitrators, was not permitted to gainsay the judgment by evidence of irregularity in -the proceedings, which is the very case at bar; and in the lessee of Hiester v. Fortney, 2 Bin. 40, it was held that a judgment on a scire fa-das, after one nihil, which of course might have been set aside or reversed on error, can not be questioned collaterally in another suit, and the same doctrine was asserted in King v. King, ante, 19. There is an endless list of authorities for this familiar elementary principle, which is the foundation of even the English practice in setting aside judgments surreptitiously obtained on warrant of attorney, without which, it is-said, the party would be without remedy — in other words,, he would not be able to take advantage of the irregularity on a scire facias, by evidence or.- pleading. On the plea of mil tiel record therefore, it seems to me the court did right to give judgment for the plaintiiL

Rogers J. concurred with Gibson, C. J.

Judgment- reversed, and a venire de novo awarded.

       See Cook v. Jones,, Cowp. 727-8, — Reporters.


text:
    GEORGE B. PORTER, Esq. against THE COMMONWEALTH OF PENNSYLVANIA.
    The account of a Prothonotary being settled by the accountant officers of the State, to which he files his objections in writing, and takes an appeal to the Common Pleas, upon the trial of the cause he cannot give evidence to support other objections than those made at the time of appeal.
    Upon the settlement of suclvaccount of a Prothonotary out of office, the accountant-officer is not confined to the settlement of items embraced, as to date, within the fiscal year.-
    Appeal from the Circuit Court of Dauphin county, held by Justice Huston.
    The defendant,. George B. Porter, Esq. was prothonotary of the county of Lancaster,' from April, 1818, until February, 1821, when he resigned, and during that time,, it, was admitted he received fifteen hundred dollars per annum.

    On the 12th June, 1822, the Auditor General, by a circular letter, called upon the defendant to settle an account of the fees of office received by him,.as prothonotary of the Common Pleas and District Court, after he went out?of office, to wit, from February, 1821, till the 1st July 1822. In pursuance of- this call, the defendant, on the 17th July, 1822, furnished an account of the fees received by him from his successor in office, and others, amounting to nineteen hundred and sixty-five dollars and twenty cents. In April, 1824, the Auditor General and State Treasurer settled the following account:

      DR. George B. Porter, prothonotary, &c. of Lancaster county. To the cl^pionwealth, in account for surplus fees of office:
    To fees received from the time he resigned until the 1st July, 1822, per his return on oath, $1965 20
    Deduct, for error made by him, 75 91
    1889 29
    1822, November 2d, received of F. A. Muhletiburg, Esq. prothonotary, per receipt filed, 368 32
    2257 61
    Deduct 50 per cent, thereof, to which he is entitled, agreeably to act of 24th March, 1818, 1128 80^
    Tax due commonwealth, $1128 80j
    Settled and entered, James Duncan,

    Auditor General’s office, 29th April, 1824.
    Approved and entered, Wrn. Clarhe,

    Treasurer’s office, 29th April, 1824.
    From the settlement of this account the defendant entered an appeal to the court of Common Pleas, on the 8th July, 1824, and specified the following objections thereto.
    “ That the taxation is illegal and improper. The law directs accounts of this kind to be furnished annually to the Auditor General; and the year is to commence and be computed from the first day of October, the account is then to be settled accordingly by the Auditor General; and whenever the amount of such account exceeds the sum of fifteen hundred dollars, the officer shall be charged with fifty per cent, on the amount of such excess, to be paid by him into the Treasury, for the use of the. Commonwealth. Whereas the above mentioned settlement is not on an account furnished, nor is the time for which the same is intended as a settlement, stated or known to defendant. It appears to be from 5th February, 1821, to April, 1824. One half of all the fees stated, is charged against the defendant as due to the commonwealth, although the only authority given to the accountant officers to tax an account of this kind is where the fees, in one year, exceed the sum of fifteen hundred dollars. The defendant claims to be allowed fifteen hundred dollars each year clear of tax, and of the excess he is willing to pay fifty per cent, into the treasury for the use of .the .commonwealth.
    “G. B. Porter,

    “July 8th, 1824.
    “To David Mann, Esq. Auditor General of the Commonwealth of Pennsylvania.”

      The appeal was filed in the Common Pleas, together with the objections. . WuF

    In Í826, a declaration in assumpsit, for money had and received, was filed; to which the .defendant then put in the pleas of non assumpsit, and payment with leave, &c, when the cause was certified into the circuit court. On the trial, after the plaintiff had given in evidence the accounts and settlement, as before stated, and rested, the defendant offered in evidence the depositions of John Mathiot and Christian Bachman, Esquires, which were objected to by the plaintiff and overruled by tlie Court, The defendant then offered to putin the following plea, which contains the substance of,the depositions which had been rejected.
    “ That on the Jfftly June, 1822, he was called upon by James Duncan, Esq. Auditor General, to render an account upon • oath or affirmation, of all fees of office which had been received by him since his resignation oy removal, up to ,the first day of July, 1822: and that he rendered an account in pursuance of this call; the total fees received and returned in said ¡account as corrected, being one thousand eight hundred and eighty-nine dollars and twenty-nine cents: that by an error in the settlement of the amount of fees due by John Mathiot, late sheriff, to the defendant, he returned in the said account to the Auditor General, fifty-seven dollars and eight cents, which were no.t Prothonotary’s (eg.?, or due to the defendant, and which haye been refunded to the said John Mathiot, Esq. And that of the fees so received, and of which an account was rendered to the Auditor General, after deducting the said error of fifty-seven dollars and eight cents, the sum of one hundred and fifty dollars and twenty-seyen cents, was fees received in the District Court for the city and county of Lancaster: and that of the .sum of three hundred and sixty-eight dollars and thirty-two cents, .stated in the claim of plaintiff to have been received by defendant on the 2d November, 1822, the sum of forty-nine dollars fifty-two and a half .cents, was fees received in the District Court for the city and county of Lancaster, and which the defendant is not liable to account for, and nevey assumed to pay. All which he is ready ,to verify, &c”

    The court refused to receive the plea.
    The defendant requested the court to charge the jury on. the following points of law.
    1. That by the existing laws in relation to settling the accounts of those who had held the office of Prothonotary, the Auditor General has power to call on such persons, and compel them to account upon .oath or affirmation; but that he must proceed agreeably to the provisions of the act of 10th March, 1810, and must make settlement of the account for each year, ending on the first day of October, and in such settlement can include nothing more than the account for one year: or if he has power to settle the accounts for more than one year at one time, such accounts must he settled separately, and the amount for each year, ending on the first October, be kept distinct. That as the Auditor General undertook to call upon the defendant, by letter of the 12th June, 1822, for an account of all fees of office, which had been received by him after his resignation, up to the 1st July, 1822, and defendant rendered an account accordingly; the accountant officers had no right to include in the settlement of the same, the amount of fees which were received in the subsequent year, viz. after 1st October, 1822.
    2. That the settlement of the account of defendant as made by tire Auditor General and State Treasurer, on the 29th April, 1824, is illegal and improper. No power being given, by law, to the Auditor General to call upon the defendant to render an account of fees received, during the year that would end on the 1st October, 1822, until after the expiration of this year. That even if he had such power, he had no right to include in the settlement of the account, when rendered, any sum paid to the defendant by his successor in office, after the first day of October, 1822; nor had he a right to include in such settlement, fees received for services rendered, while defendant acted as Prothonotary of the District Court for the city and county of Lancaster, in said court.
    The court answered these points in the negative; when a verdict was rendered for the plaintiff' which the defendant moved the court to set aside, and grant a new trial for the following reasons:
    1. Because the court erred, in rejecting the depositions of Christian Bachman and John Mathiot, offered in evidence on behalf of the defendant.
    2. Because the court erred, in not permitting the defendant to plead the matters as contained in his special plea this day filed.
    3. Because the court misdirected the jury, in their charge and answers to the points proposed on behalf of the defendant.
    The court overruled the motion, and entered judgment on the verdict; from which the defendant appealed.

      Montgomery, for appellant,
    cited the act for erecting the Controller General’s office, 2 Smith’s Lams, 19. Act of 18th February, 1785, 3 Carey S¡> Bioren, 9- — allowing to accountants a trial by jury, and the general issue to.be pleaded; act of 17th March, 1809, Penn. Lams, 7.1, Auditor General appointed to perform the duties of the Controller General; act of 30th March, 1811, Purd. Dig. 690, .directing the mode of settling the accounts of public officers. By the act of assembly the fiscal year commences on the 1st of October, and the officer is to account annually; the fees are not due to the commonwealth until the end of the year. The Auditor General halving therefore called upon the officer to account, and an account having been furnished, the accountant officers had no power upon the settlement of that account, to include the receipt of F. A.

      Muhlenburg, Esq. for three hundred and sixty-eight dollars and thirty-two cents, dated 2d November, 1822, not within that fiscal year; and they include it too, without any notice to Mr. Porta-, or opportunity to contest its correctness.
    The defendant is made liable to account, under the act of 1810, consequently he cannot be charged with fees received out of office; that could be done only under the act of 1818. The evidence contained in the depositions which were rejected, was strictly admissable under the general issue, 4 Yeates, 349. 2 Burr, 1019. 3 Burr, 1353. 5 Serg. Sf Rawle, 396. 6 Serg. Sf Rawle, 76. 11 Johns. 531. 13 Johns. 56. 15 Johns. 230. 4 Yeates, 366.
    Amendments of the pleading on the trial are mandatory, and not discretionary, there was therefore error in refusing the defendant permission to alter his pleas, 13 Serg. Sf Rawle, 444. 6 Bin. 88. 4 Yeates, 507. 8 Serg. Sf Rawle, 498. 10 Serg, Sf Rawle, 192. 11 Serg. Sf Rawle, 101. 16 Serg. Rawle, 117. 5 Bin. 53. 8 Serg. Sf Rawle, 286.. 6 Serg. Sf Rawle, 295.

      Douglas, Attorney General,
    submitted the cause for the state, without argument.
   The opinion of the court was delivered by

Gibson, C. J.

The act of the 30th March, 1811, requires an appeal from the Auditor General to be accompanied with a specification.of the appellant’s exceptions, and doubtless to indicate the very points to be determined by the court. As there is no reason to appeal in respect of points that are admitted, it would be flagrantly •unjust to permit the accountant to hold in reserve any thing that might have been allowed, had it been urged at the settlement, and thus subject the commonwealth to expense, and her officers to vexation without just cause. The exceptions contained in the defendant’s specification are not stated with precision, but they appear to be: 1. That the settlement was not on an account furnished. This appears not to have been pressed at the trial. 2. That it includes a period of more than one year. 3. That half of all the fees received in the whole period are charged, instead of the excess above fifteen hundred dollars, in any one fiscal year. These, therefore, are the only points which the court was competent to hear and determine.

At the trial, the defendant offered evidence of various other matters, which was rejected for want of notice, under the rule which requires a specification of special matters, before it can be received, under a general issue plea, on which he prayed for leave to plead the same matters specially, which was refused. It is unnecessary to enquire into the competency of these matters, on either of the grounds on which it was offered, as the fact that it is not included in the exceptions taken before the Auditor General, furnishes an ifisuperable objection to it on any ground. Perhaps the only ex-eeption legitimately urged at the trial, is that the account embraces a period of considerably more than a year. But whatever the law maybe in relation to the accounts of persons actually in office, the act of the 24th March, 1818, requires the Auditor General to settle the accounts of retired or displaced officers “from time to time.” Why the case of the defendant, whose appointment to the office, was subsequent to the passing of this act, should not be embraced by it, we are at a loss to discover. We therefore see no reason to disturb the verdict.

Judgment affirmed.