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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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an affidavit of defence.

On the 1st of May 1839, the damages were assessed by the
prothonotary, according to a paper which was filed on the same
day ; and which was as follows :

" Note due 26th January, 1838.

$3069.04 $3069.04

Interest 26 January 1838, to April 20, 1839,
1 year 84 days, at 7 per cent., 264.24

Protest, 4.51

3337 79
*<uon *Note due 27 January 1838, 1222.03

Interest from 27 January 1838 to 20 April
1839, 1 year 82 days, 104.96

Protest, 4.51

$1331 50
3337 79

4669 29
Damages assessed as above. Pro. Pr. M. COATS."


[Crutcher . Commonwealth.]

The docket of this action contained the following entry:

" 1839, May 1. Damages assessed at $1331.50."

On the 14th of May 1829, F. G. Crutcher and F. H. Morgan
entered into a recognisance in the usual form, in the sum of $2700,
with the following condition, viz., "that if the defendant do not on
or before the expiration of 12 months from the first Monday of
April last, pay the amount of debt, interest and costs recovered
against him in the case, we will pay the said amount for him."

A capias ad satisfaciendum was issued on this judgment, on the
23d of September 1839, returnable to the first Monday in October
following, endorsed, "Real debt $4669.29," with interest, &c. ; to
which a return of N. E. I. was made.

This action was then brought upon the bail bond. A return of
nihil habet was made as to Wilson, the original defendant.

The declaration, after reciting the capias in the original action,
the arrest of the defendant, and the bail bond, with the condition
thereof, proceeded thus :

"And whereas, afterwards, to wit, at the March term of the said
court in the year aforesaid, and after the return of the said writ,
judgment was given in the said court for the said Moses Wanzer
and Jabez Harrison, against the said Thomas E. Wilson, in the
action aforesaid; and the said plaintiffs in the said action then and
there by the consideration of the said court recovered in the said
action against the said Thomas E. Wilson, four thousand six hun-
dred and sixty-nine dollars and twenty-nine cents, which were ad-
judged to the said plaintiffs for their damages, which they had
sustained as well on the occasion of the said Thomas E. Wilson
not performing certain promises and undertakings then lately made
by the said Thomas E. Wilson to the said plaintiffs, as for their
costs and charges by them about their suit in that behalf expended ;
whereof the said Thomas *E. Wilson is convicted, as by the r^^o
record and proceedings thereof more fully appears. And '-
the said Commonwealth in fact say, that the said Thomas E. Wilson
hath not yet satisfied the said condemnation money so as aforesaid
adjudged to the said plaintiffs in the said action and costs, or any
part thereof; and has not surrendered himself into the custody of
the said sheriff, according to the form and effect of the said writing
obligatory; and that the said F. G. Crutcher and F. H. Morgan
have not done so for him ; and that the said plaintiffs in the said
action have not yet obtained any execution of the said judgment
against the said Thomas E. Wilson, nor any execution upon the
said writing obligatory; and further, that the said judgment so
obtained against the said Thomas E. Wilson, still remains in full
force and effect, not in any way reversed, vacated, paid off or satis-
fied ; whereby and according to the form and effect of the said
writing obligatory, an action hath accrued to the said Common-

343 SUPREME COURT \Marcli Term,

[Crutcher v. Commonwealth.]

wealth to demand and have of the said Thomas E. Wilson, F. G.
Crutcher and F. H. Morgan, the said sum of nine thousand dollars
in form aforesaid," &c.

The defendants, Crutcher and Morgan, filed a special plea, set-
ting forth, "that after the making and delivery of the said bond or
writing obligatory and condition, in the said plaintiff's declaration
mentioned and set forth, and before the commencement of this suit,
there was a judgment rendered in the suit of Moses Wanzer and
Jabez Harrison, trading as Wanzer & Harrison, against Thomas
E. Wilson, to wit, on the 20th day of April, A. D. 1839, for the
sum of thirteen hundred and thirty-one dollars and fifty cents, in
favor of the said plaintiffs in said suit, and so entered on the docket
of the said District Court. And the defendants aver, that the said
last-mentioned suit, in which the said last-mentioned judgment was
so rendered, is the same suit in which the arrest of the said Thomas
E. Wilson was made, as set forth in the plaintiff's declaration, and
in which said suit the said bail bond in the plaintiff's declaration
mentioned was given, by the said Thomas E. Wilson, F. G.
Crutcher and F. II. Morgan; and that after the rendition of said
judgment, and before the issuing of any capias ad satisfaciendum,
or any other process on said judgment, and before the commence-
ment of this suit, to wit, on the 14th day of May, A. D. 1839, F.
G. Crutcher and F. H. Morgan, of No. 12 North Fourth street, Phila-
delphia, entered into a recognisance as bail for the stay of execu-
tion on said judgment, in the said District Court in and for the city
and county of Philadelphia, before the prothonotary of the said
court, in which they acknowledged themselves to be held in the
sum of twenty-seven hundred dollars, upon condition that if
Thomas E. Wilson, the defendant in the said suit, should not on or
before the expiration of twelve months from the first Monday of
April, then last past, pay the amount of debt, interest and cost re-
* 344.1 covere d against him in the said suit, they would *pay the
-" said amount for him. And the said F. G. Crutcher and F.
H. Morgan were approved of as bail for the stay of execution in
the said last mentioned case by a judge of the said District Court,
in which court the said judgment was entered, according to the act
of assembly in such case made and provided.

" And this the defendants are ready to verify, wherefore they pray
judgment if the said plaintiffs ought to have or maintain their
aforesaid action against them," &c.

The plaintiff replied, "that after the making and delivery of
the bond or writing obligatory, in the said plaintiff's declaration
mentioned and set forth, and before the commencement of this suit,
there was a judgment rendered in the said court in the suit of
Moses Wanzer and Jabez Harrison, trading as Wanzer & Har-
rison, against Thomas E. Wilson, to wit, on the twentieth day of


[Crutcher v. Commonwealth.]

April, eighteen hundred and thirty-nine, for the sura of four thou-
sand six hundred and sixty-nine dollars and twenty-nine cents, in
favor of the said Wanzer & Harrison, without this, that after the
making and delivery of the said bond or writing obligatory, and
before the commencement of this suit, there was a judgment
rendered in the said suit of Wanzer & Harrison against Thomas
E. Wilson in favor of the plaintiff, for thirteen hundred and thirty-
one dollars and fifty cents, in manner and form as the said defend-
ants have above thereof in their said plea averred. And this the
said plaintiff is ready to verify by the record of the said judgment,
when, where, and in such manner as the court here shall direct
and award," &c.

After argument, the District Court gave judgment for the plain-
tiff on the issue of nut tiel record.

Afterwards, viz., on the 21st of March 1840, the District Court
granted a rule to show cause why the prothonotary should not
amend the docket entries of the, assessment of damages by the
assessment on file. On the 28th of March 1849, this rule was
made absolute.

This writ of error was issued.

The following error was assigned :

The court erred in entering judgment in favor of the plaintiff
upon the pleadings of this case.

Mr. Mallery^ for the plaintiff in error.

The judgment in the original action appears only upon the
docket, and there it is $1331.50, and the recognisance for the stay
of execution is in double that sum. The act of assembly don't say
in what amount security shall be given. It is impossible that the
loose papers which are filed in the office can be considered a record.
The act of the 29th of March 1827, provides for keeping a judg-
ment docket, *which is to be the guide. The act of the r*q_jc
24th of February 1806, 28, specifies the duty of the pro- L '
thonotary on the confession of judgment. By the act of the 21st
of March 1772, the prothonotary is to set down the day and year
of entering judgment. Several other acts and decisions recognise
the docket entries as containing the evidence of the judgment.
Act of the 26th of March 1827 ; act of the 16th of April 1840.
Black v. Dobson, 11 S. & R. 94 ; Lewis v. Smith, 2 Id. 156. In
Phillips v. Israel, 10 S. & R. 391, it was held, that an entry by
the plaintiff on the docket, of "ended and debt and costs paid," is
equivalent to an entry of satisfaction, and may be pleaded in bar of
a new suit for the same cause of action. In Brotherline v. Mallory,
8 Watts 136, Judge Huston says, "The docket entry of a judgment
is a record." In Roup v. Waldhouer, 12 S. & R. 24, it is held that
the entry of security for a stay of execution operates as a discharge

345 SUPREME COURT [March Term,

[Crutcher . Commonwealth.]

of a recognisance in nature of special bail on an appeal from a
justice. Dornick v. Reickenback, 10 S. & R. 24, decides that the
verdict as entered on the docket is the only proper verdict, and that
the paper signed by the jury is not part of the record. The same
4 rule applies to a paper by which the prothonotary makes his assess-
ment of the damages.

A bill of exceptions in the case of a trial upon the issue of nul
tiel record is unknown in this state. Patton v. Miller, 13 S. & R.
254 ; Helvete t>. Rapp, 7 Id. 306 ; Turner v. Waddington, 3 Wash.
C. C. Rep. 126 ; Sliver v. Shelback, 1 Dall. 165 ; Moore v. Mc-
Ewen, 5 S. & R. 373.

Mr. F. W. Eubbell, contra.

The error in pleading here was in the defendants, in not pleading
nul tiel record. We were obliged, for expedition, to traverse the
judgment as they averred it.

A bill of exceptions was necessary to bring the matter before the
court, Fry v. Wells, 4 Yeates 4*97. There the ground rested on
was that oyer had been prayed, which is the course where the record
is of the same court. Whether record or not, is an issue of fact.
If the jury decide a fact wrong, you can't get at it, except by bill
of exceptions. So of a court deciding a matter of fact. The U. S.
v. Cook, 2 Mason 22, shows that nul tiel record is an issue of
fact, and that the record can't be noticed if it is not contained in
the record brought up in a bill of exceptions, or some other way.
Watson v. Mercer, 17 S. & R. 343.

As to the merits. The act of 1836, 4, requires security for a
stay of execution to be given for the sum recovered, with interest,
and costs. Now, if the security in this case was not given according
to the act, it was a nullity ; and we were not bound to wait or move
the court. Eichman v. Belvidere Bank, 3 Whart. 68. So in
Roup v. Waldhouer, the court say that the plaintiff may treat the
fulfil *recognisance as a nullity if irregularly entered. Then the

k -1 question is, was this the judgment upon which the stay of exe-
cution was entered. It was a judgment certain without the assessment
of damages. InMcClury v. Murphy, Dis. Ct., Dec. T. 1837, MS.
a judgment for want of an affidavit of defence, under the act of
1835, was held to be final. In Brotherline v: Mallory, Judge
Huston says, that where the amount is mere matter of calculation,
a writ of inquiry is not necessary. Here the defendants and their
counsel were apprised of the plaintiff's demand and recovery ; and
this entry upon the docket was their own act, and at their own risk.
Besides, the amendment made by the District Court is conclusive
here. The record must be taken as we find it. Prady v. Ordro-
neaux, 6 S. & R. 110; Hoffman v. Coster, 2 Whart. 468. The
docket is only a record for liens to give notice to third persons.


[Crutcher r. Commonwealth.]

The assessment of damages is in fact the act of the court made
through their officer. Here there was no injury done to the
defendant. He was remitted to his original liability. The defend-
ants were not third persons, but were bound to see that the security
was properly entered. If the defendant in the original suit who
knew of the mistake for he had confessed judgment took advan-
tage of it, is his bail discharged? If any injury accrued to them
from the proceedings, they ought to have shown it. It is not
enough to suggest that they may have been injured.

Mr. Scott, in reply.

The assessment of damages is not a judgment. The act of 1821
makes the docket the proper entry of the judgment, and the only
evidence of the acts of the court. The bail had a right to waive
the surrender or part with securities. Bail are favored by the law.
As to the amendment, the whole record is to be taken together, and
that shows that it was not always so. The court may amend so as
to bind the parties, but not to affect the rights of third persons.
Such is the case of Kennedy v, Wachsmuth, 12 S. & R. 171. Bail
are third persons within the intendment of the law. The case of
the U. S. v. Cook, was decided upon the judiciary act of 1789.

The opinion of the court was delivered by

ROGERS, J. The firm of Wanzer & Harrison brought suit to
recover the amount of two notes from Thomas E. Wilson. Crutcher
and Morgan, who, with Wilson, are the present defendants, became
bail in the action, and entered into a bail bond to the Common-
wealth, in the sum of nine thousand dollars, on this condition ; that
if Wilson should be condemned in the action brought against him,
he would satisfy the condemnation money and costs, or surrender
himself into the custody of the sheriff; or that in default thereof,
Crutcher and Morgan would do so for him. The suit against
Wilson was brought *to the March Term, 1 839, a copy of po^
the notes was filed, and on the 20th of April, judgment was I
entered for want of an affidavit of defence. A reference was made
to the prothonotary, in the usual manner, to assess damages ; and
on the 1st of May 1839, the damages were assessed at the sum of
$4669.50, as appears by a paper filed in the handwriting of the
prothonotary of that date. On the same day this entry is made by
him on the docket, "May 1, 1839, damages assessed at i$1231.50."
On the 14th of May, Crutcher and Morgan enter into a recog-
nisance in open court as security for a stay of execution, in
the sum of $2700, 8M j con., that if the defendant do not, &c., pay
the amount of the debt, &c., recovered against him, they will pay the
amount for him. This suit is brought upon the bail bond, against
the principal and bail ; and the plaintiff avers that Wanzer & Har-

347 SUPREME COURT [March Term,

[Crutcher v. Commonwealth.]

rison, in the original suit, recovered from Wilson, $4669.29, which
were adjudged to them for their damages. &c., as for their costs and
charges expended. The defendants, in substance, deny that there
is any such record as is set out in the declaration ; and in sup-
port of this plea rely on the entry on the docket, which they aver
to be the proper and only judgment rendered. They further con-
tend that by the entry of security for the stay of execution, they
are discharged from suit on the bail bond ; and that the plaintiffs'
remedy is on the recognisance of bail. And whether the docket
entry, or the paper filed, is the judgment of the court, is the prin-
cipal question. It cannot be doubted that in the various acts of
assembly which have been cited at bar, particularly the acts of the
29th of March 1827, 8th April 1833, and the 17th of June, 1839,
(Stroud's Purd. 906, tit. Records], the legislature recognises the
docket as the proper and only place for the entry of the judgment.
The third section of the act of the 29th of March 1827, is very
strong to this point ; for in that section it is made the duty of the
prothonotary of the several Courts of Common Pleas, District
Courts, and Circuit Courts, to prepare dockets to be called the
judgments dockets, in which the legislature directs shall be copied
the entry of every judgment, and every award of arbitrators, imme-
diately after the same shall have been entered. It then particu-
larly prescribes the manner in which the entries shall be made.
Even before this act, and certainly since, no doubt has rested in
the mind of any person that the entries of the judgments must be
then made ; and it would be a dangerous innovation, most destruc-
tive to the rights of suitors, if any other practice should receive any
countenance from the courts ; that the solemn entries made in con-
formity to the express direction of the act, should be controlled or
set aside by memorandums, made on loose scraps of paper, and filed
as part of the proceedings.

The universal practice, throughout the Commonwealth, has been
to the contrary. Persons about to loan money on real security,
or to purchase real estate, look only to the judgment as ascertained
and entered on the docket. They never think it necessary for
*o t o-i *their security to examine every paper filed, or other minute
- or memorandum on the record, to ascertain whether the pro-
thonotary has mistaken the proper entry. If this were the case of
a subsequent judgment creditor or mortgagee, it would not admit
of argument that they could be affected only to the amount of tho
judgment, as it appears on the docket. And it is yet to be shown,
that the defendants who are bail, and therefore favorites of the law,
are in a worse situation in that respect, than subsequent judgment-
creditors, mortgagees or purchasers. This can only be done by
showing that they are parties or privies to the original suit, in
which they are bail. But that they are neither, is very clear, foi


[Crutcher v. Commonwealth.]

they have none of the rights of privies or parties. They cannot
interfere with the suit in any way, except in case of fraud, or when
the defendants have absconded; when the courts may interpose to
prevent injustice, or permit them to come in and take defence.
But in an ordinary case, they have no day in court. They cannot
subpoena witnesses, interfere with the trial, or in any way control
the amount of the judgment, or the mariner or place of the entry
of the judgment. As to the judgment and the amount of it, and
in every other respect, the parties themselves are the exclusive
judges; they may and do act as seems right to themselves, by ami-
cable agreement, or confession, and that in direct opposition to
anything the bail may say or do. Any suggestion of theirs might
be regarded an impertinent interference with the business of others,
and foreign to their duty as bail. Nor have they any just right to
complain of this, as they can at any time relieve themselves from
responsibility, by a surrender of their principal. It is very proba-
ble that the entry here, was made by mistake ; and the court on
motion would and indeed have allowed the record to be amended,
as there was something to amend by; but until it is amended, the
judgment must be taken to be rendered for the sum entered on the
docket. And this I apprehend would be the case even between
the parties themselves; but be this as it may, as to third persons,
nothing we think can be clearer. It is said to be hard that the
plaintiff should suffer by the mistake of the prothonotary ; but if
he has been injured by that officer, he has his remedy. Likewise
it must not be forgotten, that a different doctrine may operate with
peculiar severity on the defendants. They may have had in their
hands an indemnity to an amount equal to the sum recovered, as it
appeared on the docket; and for this reason may have deemed it
unnecessary to surrender their principal ; or for many reasons they
may have preferred to pay that amount, rather than surrender him,
when they would have been unwilling to encounter a much larger
responsibility. But the case further shows, that security was en-
tered for a stay of execution ; and according to the case of Roup
v. Waldhouer, 12 S. & R. 24, the bail are discharged. In that
case it is decided, that the entry of security to allow a stay of exe-
cution, operates as a discharge of a recognisance *in the r*oAQ
nature of special bail. But the action proceeds on the '
notion that the recognisance of bail is a nullity, because it is given
in a less sum than the amount of the judgment. But in this
assumption the plaintiff is mistaken, as has been already proved.
But to subject the defendants to this suit, it is necessary to show
that the bail were at liberty to treat the entry on record, the recog-
nisance taken in open court on notice to the plaintiff, as a nullity;
and that notwithstanding these proceedings, they have the right to
surrender their principal. The affirmative of this proposition it

349 SUPREME COURT [March Term,

[Crutcher v. Commonwealth.]

will be difficult to maintain. It is nothing that in this case the
absolute or special bail are the same persons, as it is not alleged
that they knew, and they are not bound to know, that a mistake
had occurred in the entry of judgment. In that respect they are
in the same situation with strangers, and are bound, as all others
are, to look to the docket, and no further, to ascertain the amount
due ; and for aught that appears they fairly and honestly entered
the security by which their relation was changed from special to
absolute bail, for the amount of the judgment rendered. As they
could not surrender their principal, as it is very clear they could
not, they are discharged from their first responsibility. They have
omitted nothing which the law exacts from them : and without
some default, it is not in the power of the parties by their mis-
takes, nor of the court to suspend their right for an instant, without
discharging them altogether. Hence as the record stood, some
time elapsed when they were unable to discharge themselves by a
surrender of their principal, without his consent, and the consent
of the plaintiffs in the original action. Both had an interest which
they might be unwilling to submit to the control of the defendants :
the principal might object to a claim of any right of surrender of
his person, until the expiration of the stay of execution ; and on
the other hand, the plaintiffs had a right to insist on their recogni-
sance not being in any way impaired, as the latter was a much
better security than the former, one being special bail, the other
absolute security for the amount of the judgment on the docket.
If the argument of the plaintiffs hold good, a mistake to the value
of one cent in the entry of judgment on the docket, will vitiate the
recognisance, and discharge the recognisor. The plaintiffs would
in that case lose their debt, and the defendant would, as before, be
exposed to imprisonment, at the option of his bail or the plaintiffs.
I cannot consider the recognisance void, but whilst the record stands
unamended, it binds the recognisor, and of course, is a bar to any
suit against the special bail.

Since the trial, and after writ of error, the District Court has
amended the record. We do not doubt their power to do so, as
between the parties themselves, but it cannot be seriously urged that
the court can allow an amendment to affect the rights of a subse-
quent judgment-creditor, a mortgagee, or a purchaser; nor can
this be done against the bail to the action, who are neither parties
*oen-i nor *privies to the original suit. In Black v. Dobson, 11
J S. & R. 97, the doctrine is expressly asserted that the court
cannot by amendment deprive subsequent judgment-creditors or
mortgagees of any legal advantage which they may have obtained.


| Crutcher v. Commonwealth.]

This principle is so obviously just, as hardly to need the aid of

It has been suggested in the argument that a writ of error will
not lie to the Judgment of the court on a plea of nul tiel record;
and for this position the counsel rely on the case of The United
States in error v. Cook, 1 in which this point is expressly decided.
But a contrary practice has obtained without objection in this state,
and to such an extent as the cases cited show, that it is not now an
open question. It is too late to doubt the power of the court to

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 39 of 75)