(Britton v. Stanley.)

held under advisement until this day, when the opinion of the Court was delivered by

SERGEANT, J.-Considerable doubt has been occasioned in this case by the practice which, it appears, has prevailed for a few years, for the prothonotary to enter judgment on the verdict, for the plaintiff, as soon as the jury fee is paid, sometimes at Nisi Prius and sometimes at the sitting of the Court in bank. However correct this may formerly have been, yet it would seem that the case is provided for by the 4th section of the 18th rule of this Court, which directs, that in all cases of motions for a new trial or of verdicts subject to the opinion of the court, the court may, on the report of the judge before whom the cause was tried, order judgment to be entered for the plaintiff to stand as security. No inconvenience can flow from this; for the plaintiff may at the first day of the court move for judgment, and if by the report of the judge who tried the cause, it is deemed proper he should have it as a security, it may be immediately ordered. This will prevent a loss to the plaintiff by the pendency of the motion in those cases where it is proper he should be secured by a judgment. In no case, however, can the judgment be entered until the jury fee is paid; nor until the sitting of the Court in bank.

Judgment taken off.

[PHILADELPHIA, FEBRUARY 6, 1836.]

M'BRIDE against DUNCAN, Esq., and Others.

1. In trespass against a sheriff and others for taking the plaintiff's goods, the defendants may give in evidence under the general issue that the goods were the property of A., at the time of the alleged trespass, and that they (the defendants,) took them under a judgment and execution against A.

2. Where such matter is pleaded specially, the court will strike off the special pleas, although they allege that the plaintiff was in possession of the goods by a bailment from A. for safe keeping, or by a fraudulent conveyance from him.

3. Quere, whether an averment of a judgment for $6000, is supported by a record showing a judgment entered by the prothonotary, in pursuance of the Act of 1806, by virtue of a warrant of attorney accompanying a bond in the penal sum of $12,000, conditioned for the payment of $6000 with interest.

THIS was an action of trespass brought by John M'Bride against Benjamin Duncan, Esq., High Sheriff of the City and County of Philadelphia, James G. Crozier, David Lewis, jr., Joseph Harper, and James Saunders, for taking and carrying away certain goods and chattels, (being the machinery of a Cotton Mill,) alleged to be the property of the plaintiff.

The defendants first pleaded "not guilty, with leave to give the special matter in evidence," but afterwards obtained a rule to show cause why the general issue should not be withdrawn, and special pleas filed in its stead. This rule was made absolute at the March Term, 1835. They then filed six special pleas, setting forth, in sub

stance:

1. That one Thomas Ireland, at the December Term, 1832, of the District Court for the City and County of Philadelphia, obtained a judgment against one William Linn, for $226 50, with costs, and sued out of the said Court a writ of fieri facias, directed to the sheriff of the said county, commanding him to cause the said debt and costs to be levied of the goods and chattels of the said Linn; which writ was delivered to the said sheriff: and the said defendants averred that the goods and chattels mentioned in the declaration were the property of the said Linn, (but that the said plaintiff was in possession of the said goods and chattels by colour of a certain bailment made by the said Linn to the said plaintiff, for the safe keeping thereof): and that the said sheriff, did in obedience to the said writ, and by virtue thereof, seize and sell the said goods and chattels, &c.

2. That one John B. Newman, at the March Term 1833, of the said District Court, obtained a judgment against the said William

(M'Bride v. Duncan.)

Linn, for $5,904 40, with costs, &c. and sued out a fieri facias, &c., with the like averments.

3. That the said James G. Crozier at the March Term 1833, of the said District Court, obtained a judgment against the said William Linn, for $859 81, with costs, &c., and sued out a fieri facias, &c., with the like averments.

4. That the said David Lewis, jr., at the December Term 1832, of the said District Court, obtained a judgment against the said William Linn, for $6000, with costs, &c., and sued out a fieri facias, &c., with the like averments.

5. That the property in the said goods and chattels, at the time of the taking, &c., was in the said William Linn, and that the said Linn was then and there indebted to various persons, altogether, in a large sum of money, viz. the sum of $20,000, and, being so indebted, did before the commission of the supposed trespass, &c., assign and convey the said goods and chattels (with design to defraud his said creditors and to defeat the executions which they might sue out,) to the said plaintiff, who was then and there privy to the design and purpose. And the defendants averred that the said David Lewis, jr., at the December Term 1832, of the said District Court, by the consideration and judgment of the same Court, recovered against the said William Linn, as well a certain debt of $6000, as also six dollars and twelve cents for his damages, for the detention of the same, &c., and that he sued out a certain writ of fieri facias, &c., under and by virtue of which the said sheriff sold the said goods and chattels, &c.

6. That the property in the said goods and chattels, at the time of the taking, &c., was in the said William Linn, and that the said Linn was indebted to the said David Lewis, jr., in the sum, of $14,000, and being so indebted, did before the commission of the supposed trespass, &c., make an assignment and conveyance of the said goods and chattels, (with design to defraud the said David Lewis, jr., and to defeat any execution which he might sue out,) to the said plaintiff, who was privy to the design and purpose. And the defendants averred that the said David Lewis, jr., at the December Term, 1832, of the said District Court, by the consideration and judgment of the said Court, recovered against the said Wm. Linn, as well a certain debt of $6000, as also six dollars and twelve cents, for his damages, &c., and that he sued out a certain writ of fieri facias, &c., under and by virtue of which the said sheriff sold the goods and chattels, &c.

To the first four of these pleas, the plaintiff put in replication concluding to the country. To the 5th and 6th he replied nul tiel record. To the replication to the first plea, the defendants demurred specially, setting forth the following causes of demurrer, viz.

(M'Bride v. Duncan.)

"That the said plaintiff hath in and by his said replication, tendered and offered to put several and distinct matters in issue-that is to say, that the goods in declaration mentioned, were the goods of William Linn: that they were seized and taken in execution by the said Benjamin as sheriff, and in obedience to the exigency of the writ in the said plea mentioned, and that the said James G., David, Joseph, and James, did aid and assist therein, and that they acted therein by the command of the said Benjamin, and that the said goods were advertised and sold; and for that the said plaintiff should and ought in and by his said replication to have tendered and offered to put in issue one single fact only, to be tried by a jury of the country, and to have relied on the same; and for that in the manner the said replication is above pleaded, no certain or single issue can be joined in the same; and for that the said replication is double, multifarious, and not issuable; and for that the said replicacation traverses the virtute cujus or matter of law, viz. that the said Benjamin did in his capacity as sheriff, seize, take, advertise and sell the goods in said declaration mentioned, and that he did the same in obedience to the exigency of said writ, in the said plea mentioned, and that he did the same to make the money, in the said writ mentioned, and that he did the same according to the command of the said writ; and for that the said replication although containing affirmative matter, viz. that the said goods were the property of the plaintiff, yet concludes to the country; and for that although the said plaintiff has in the said replication adopted in form a special traverse with an introduction and absque hoc, yet he concludes to the country; and for that there is duplicity in the introduction of the said replication, viz. the said introduction contains the affirmation that said goods were the property of the said plaintiff, and also contains the averment that the defendants of their own wrong committed the trespass in the declaration mentioned; and for that the said replication, is also in various other respects defective, argumentative, insufficient and informal."

To the replication to the 2d, 3d and 4th pleas, they rejoined the similiter.

The cause now coming up, on the issue of nul tiel record and the demurrer to the replication to the first plea, the questions were argued by Mr. J. A. Phillips and Mr. W. M. Meredith for the plaintiff, and by Mr. F. W. Hubbell for the defendant.

1. On the issue of nul tiel record, Mr. Hubbell produced the record of a judgment in the District Court for the City and County of Philadelphia, confessed by virtue of a warrant of Attorney accompanying a bond executed by William Linn to David Lewis, jun., in the penal sum of $12,000, with condition for the payment of $6,000 with interest. The judgment was entered in the D. S. B. docket by the Prothonotary of the District Court, in pursuance of the act of 1806.

(M'Bride v. Duncan.)

In support of the plea averring the record, it was said that the act of Assembly required the Prothonotary to enter judgment " for the amount which from the face of the instrument may appear to be due." Here the amount due was $6000, and that is to be taken to be the amount of the judgment. [ROGERS, J.-Do you suppose that the Legislature intended that the Prothonotary should calculate the interest due? Suppose payments endorsed on the bond is he to go into them? Surely there is no other method than that which appears to have been pursued in this and other cases, viz. to enter judgment for the penalty.] Supposing the judgment to be properly entered for $12,000, it is certainly sufficient to sustain a plea of a judgment for $6000. The record shows enough to justify. This judgment is pleaded merely as an inducement. The substance of the plea is the levying a fi. fa. Wait v. Briggs, (1 Ld. Rayd. 35.) Purcellv. MNamara, (9 East, 157.) Phillips v. Eves, (1 Esp. 355.) Phillips v. Shaw, (4 B. & A. 435; 6 E. C. L. R. 477.) Stoddart v. Palmer, (3 B. & C. 2; 10 E. C. L. R. 4.)

On the other side, it was contended that the judgment produced varied from that pleaded. On the face of the docket it was for $12,000, and so it must be under the act of Assembly. Suppose a bond with collateral condition, or for money not due. If judgment were entered only for the sum mentioned in the condition, there would be no lien for the arrears of interest. Helvete v. Rapp, (7 Serg. & R. 306.) Commonwealth v. Conard, (1 Rawle, 253.) It is said this is mere matter of inducement. If the sheriff had justified alone, he might have rested on the fi. fa.; but by joining with the other parties, he is placed under the the same rule. Ackworth v. Kempe, (Douglas 40.)

2. In support of the demurrer, the following cases were cited :Grenville v. The College of Physicians, (12 Mod. 386-S. C. 3 Salk. 355. 1 Ld. Rayd. 454.) Crowther v. Ramsbottom, (7 T. R. 654.) Lytle v. Lee, (5 Johns. Rep. 112.) Plumb v. M. Crea, (12 Johns. Rep. 491.) Stephens on Pleading, 197, 202. Demick v. Chapman, (11 Johns. Rep. 132.) Pulcher v. Sprague, (2 Johns. Rep. 462.) 1st Wms. Saunders, 23.

In support of the replication were cited, Stephens, 274. Robinson v. Bailey, (1 Burr. 316.) O'Brien v. Saxon, (2 B. & C. 908; 9 E. C. L. R. 268.) Strong v. Smith, (3 Caines Rep. 160.) Wood v. Holland, (Styles, 344.) Brake v. Kerr, (Carthew, 125.) 1 Chitty, 625. Phillips v. Holkett, (2 B. & A. 220.) Chauncey v. Weir, (12 Mod. 580.) Crogate's case, (8 Rep. 66.) 2 Blackstone's Rep. 1028. Cro. Eliz. 539. 1 Bos. & Pull. 76. Rayner v. Poynter, (Willes, 410.) Hob. 244. Earl of Suffolk's case, (13 Hen. 7, § 12, 13.) 3 Wilson's Rep. 234. S. C. 2 Blackst. Rep. 776. 2 Wms. Saunders, 295, (a)