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(M'Bride v. Duncan.)

note. 1 Ld. Rayd. 412. 1 Chitty, 654. 1 Saunders, 22. Lambert v. Struther, (Willis, 218.) Fearon v. Pearson, (1 Saunders, 103, (a). Hedges v. Sandon, (2 Term Rep. 439.) Smith v. Dovers, (Douglas, 428.) 1 Salk. 4 pl. 10. Smith v. Mills, (1 Term Rep. 475.)

It was contended also, that the matter of the special pleas was admissible under the general issue; and to this point were cited Lake v. Biller, (1 Ld. Rayd. 733.) Martin v. Parter, (2 Blackst. Rep. 701.) Ackworth v. Kempe, (1 Douglas, 40.) Saunderson v. Baker, (3 Wilson 309, S. C. 2 Blackst. Rep. 802.)

The opinion of the Court was delivered by

SERGEANT, J.-It has been contended that the matter of these pleas was not admissible under the general issue. The substance of the pleas is, that the plaintiff derives title to the goods from Wm. Linn, that they were the property of Linn at the time of the alleged trespass, and that the defendants took them under a judgment and execution against Linn. The whole matter of the defence might be given in evidence under the general issue; for that puts in issue the question of property, and if the facts averred in the pleas be true, the goods were not the property of the plaintiff. Had the goods been seized by virtue of an execution against the plaintiff, the case would be different. In such case the defendant admits the property to have been the plaintiffs, but avoids his right by virtue of the execution, and this can only be taken advantage of by a special plea. But where the execution is against a third person, not the plaintiff, there is no confession and avoidance; there is a denial of the property which may be by the general issue. The rule on the subject is thus laid down in Roscoe's Dig. of Evidence, 377. In trespass to personal property, under the general issue, the defendant may show that the goods in question were not the property of the plaintiff. Thus in an action against the sheriff for taking the plaintiff's goods, the defendant may show, under the general issue, that the plaintiff derives title to the goods under a bill of sale fraudulent as against creditors, and that the defendant took them under a judgment and execution against the real owners. Martin v. Codger, W. Bl. 701; Lake v. Billers, 1 Ld. Ray. 733. But when the sheriff justifies taking the plaintiff's own goods, under a writ of execution, such justification should be specially pleaded, for the property of the goods continues in the plaintiff till execution executed; and the sheriff cannot show that he took them when they were not the plaintiff's goods. So in 2 Phill. Evid. 221, it is said "one of the most common defences to this action against the sheriff for taking goods in execution is, that the third person against whom the execution issued, had fraudulently assigned his effects to the plaintiff for the purpose of defeating the execution of a creditor; and this defence, it is scarcely necessary to observe, may be proved under the general

VOL I.

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(M'Bride v. Duncan.)

issue." In the present case the defence is precisely of this character, and is therefore available on the general issue of not guilty; and the special pleas amount in effect to the general issue, and no more.

Still, though the general rule is that a defendant is not permitted to put in special pleas which amount to the general issue, and the Court will strike them off, yet there are exceptions. For in some cases, by the English rules, the defendant may take his choice and frame his plea so as to escape being liable to the objection. This is effected by the device of giving colour, as in these pleas is done by alleging that the plaintiff was in possession of the goods by a bailment from Linn for safekeeping, and by fraudulent conveyances from him. And where such course preserves to the defendant any serious advantage he might otherwise lose, he would, strictly speaking, be entitled to take his choice, and resort to the circuity of special pleading instead of this plain path of not guilty.

No important advantage can attend the defendant's special pleading in the case before us, while it leads to delay and burthens the records with volumes which serve little or no purpose, but the exercise of ingenuity and learning. It is said, (Hob. 127,) that it is a good reason for pressing the general issue, instead of special pleading, that "it makes long records where there is no cause." In Pennsylvania this remark applies with peculiar force. The genius of our jurisprudence is not favorable to the practice of special pleading, and the cases are rare in which the time and attention of the Court has been occupied by disputes upon it. There is no class of the profession employed peculiarly in its study, nor would our trivial attorney's fee compensate for the labor of it. Our system has been to try causes on the general issue, with notice of the special matter: to that system our laws and practice conform: and justice, it is believed, is as well administered as where another system prevails. It is remarkable that in some of the actions which the Courts have invented and fostered as best calculated for the trial of right, such as ejectment and trover, there is no special pleading; and in assumpsit it is not required. It is not meant by these remarks to intimate that there are not cases on which special pleas are necessary and proper, and in which the law of the case cannot be administered without them: or that an intimate knowledge of that branch of the law is not indispensable to the advocate. But where justice may be fully attained without it; where special pleading involves the cause in prolixity and delay without conferring any real benefit on him who resorts to it, the Court ought in the exercise of their legal discretion, and for the prevention of the evils that would result, to enforce the rule, that the defendant shall not plead specially what amounts to the general issue,

Special pleas struck off.

[PHILADELPHIA, FEBRUARY, 6th, 1836.]

M WILLIAMS against HOPKINS, ESQ.

A judgment for costs obtained against an administrator plaintiff in another Court, and assigned by the defendant there to A., cannot be set off against a judgment for damages obtained by such administrator against A. in this Court.

THIS was an action on the case brought by Mary M'Williams, administratrix, &c. of James M Williams deceased, against Joseph R. Hopkins, Esq. At a Court of Nisi Prius, held at Philadelphia on the 9th of December, 1835, a verdict was rendered for the plaintiff, with $661 damages; upon which judgment was entered.

Mr. Randall for the defendant, having obtained a rule to show cause why the defendant should not be allowed to set off against this judgment, a certain judgment for costs obtained against the plaintiff in a suit brought by her as administratrix, in the District Court, and assigned to the present defendant; the rule came on for argument this day.

It appeared that Mrs. M'Williams, as administrator of James M'Williams, brought an action in the District Court for the City and County of Philadelphia, to June Term, 1824, against John Swift, Esq. which was referred to arbitrators, and an award made for the plaintiff. The defendant appealed from the award, and upon the appeal paid costs amounting to $102, independently of the fees of witnesses.

On the trial of the cause a verdict was obtained for the defendant; and judgment being entered thereon, he became entitled to recover back the costs he had paid. This judgment was assigned to the defendant, Hopkins, on the 2d of January, 1836.

Mr. Randall now contended that the set-off was admissible. He cited Montague on Set-off, 6. 11. Jacoby v. Guier, (6 Serg. & R. 448.)

Mr. Earle, contra. The judgment is betweeen different parties, and in a different Court. A judgment for costs is not de bonis testatoris. Besides, the judgment is several years old, and cannot be enforced without a scire facias.

Mr. Randall in reply. It never has been considered necessary to issue a scire facias, where there is a judgment for costs merely. The practice is to issue execution at any time without a scire facias. In Muntorf v. Muntorf, (2 Rawle, 180.) it was decided that an executor plaintiff is bound to pay costs to the defendant in case of nonsuit, or

(M'Williams v. Hopkins.)

verdict for the defendant. Here there is no evidence of the insolvency of M Williams's estate.

PER CURIAM.-A set-off of the judgment for costs assigned to the defendant, which has been recovered in another action, cannot be allowed. These costs, though incurred in an action by the plaintiff as administratrix, are her proper debt, and the judgment for them is de bonis propriis. It is true they may be allowed to her out of the estate in the settlement of her accounts; but that is not an inevitable consequence; and to allow them here by defalcation of judgments, would be an usurpation of the power of the Orphans' Court. The rule must be

Discharged.

[Philadelphia, FEBRUARY 6, 1836.]

SAME against SAME.

1. On the taxation of costs against a Defendant in an action at law, the costs of a Bill to perpetuate testimony were disallowed.

2. Members of the bar are not entitled to witness fees for attendance in a Court in which they actually practice.

3. To entitle a party to the costs of his witnesses and of the service of subpœnas upon them, it is not necessary that their names should have been inserted in the subpoenas by the Prothonotary, before delivering them to the party.

4. It is not necessary that witnesses should attend before the Prothonotary on the taxation of costs, to prove their attendance on the trial of the cause. The fact may be proved aliunde.

5. Witnesses who attended before the Prothonotary on the taxation of costs, to prove their attendance at the trial, held not to be entitled to fees for such attendance before the Prothonotary.

THE costs of the plaintiff in this case having been taxed by the Prothonotary, an appeal was taken from his decision. The material exceptions were as follows:

1. To the allowance of the costs of a Bill to perpetuate testimony. 2. To the allowance of "witness fees" to members of the bar practising in the Supreme Court.

3. To the allowance of "witness fees" for persons whose names were placed in the subpoenas after they had issued, and without the knowledge of the Prothonotary; such persons not having been examined on the trial.

(M'Williams v. Hopkins.)

4. To the allowance of fees for serving subpoenas on persons whose names were so placed on subpoenas.

5. To the allowance of "witness fees" for persons who resided in the City of Philadelphia, and who did not attend at the taxation. 6. To the allowance of fees to witnesses for attending before the Prothonotary on the taxation of costs.

Mr. Randall for the Defendant:

1. The costs of a Bill to perpetuate testimony cannot be charged against this defendant. 1 Maddock's Chan. 195. Act of 28 March, 1814, § 26.

2. A person who is attending Court as a juror, is not entitled to fees as a witness. Nor is a Justice of the Peace when officially attending, 6 Binn. 397. The rule must be the same with respect to a member of the bar practising in the Court in which he is called upon to testify.

3. 4. In this case the names of several persons were introduced into the subpoenas by the plaintiff's attorney, after they were taken out of the office. This is a fraud upon the Prothonotary; and the plaintiff ought not to recover any costs for the witnesses in such cases, or for the service of the subpoenas upon them.

[HUSTON, J.-It is the constant practice to add names; and the Prothonotary cannot be injured if the legal fee is paid for every witness.

ROGERS, J.-The practice prevails throughout the state. Blank subpoenas are frequently taken out.

GIBSON, C. J.-There can be no doubt of the propriety of these charges.]

5. If a witness does not attend the taxation of costs, after notice, the presumption is that he relinquishes his fees. A party ought not to be allowed to prove the attendance of witnesses; since he receives their costs in the first instance.

[HUSTON, J.-It is certainly not necessary to produce the witnesses. If their attendance is proved by any competent person, it is sufficient. Even if the witness should be unable to state the number of days he attended, I think the fact might be proved aliunde.]

6. The act of Assembly which gives fees to witnesses, speaks of "each day's attendance in Court." I understand that it is the practice in the District Court not to allow for attendance on taxation.

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