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(Wright v. Guy.)

count render from all other actions. The legislature have distinguished and courts cannot say there shall be no difference.

But there are other exceptions. Justices of the peace have no jurisdiction in actions of account render. The same reason assigned against the jurisdiction of arbitrators, under the original arbitration act, holds as to justices. In giving jurisdiction to justices of the peace the legislature had only in view those actions in which judgment is for a specific sum, where if there is no appeal, execution is to issue. A justice of the peace has no jurisdiction except where his judgment is to be for a sum certain. Knight v. Wiltberger, 4 Yeates, 127. The complex machinery of assignment of auditors, and of issues in fact and law which may be taken on the items of the account is all foreign to the tribunal. Account render cannot be considered as a debt or demand under 100 dollars. Besides, though the justice ought find the balance due under 100 dollars, yet he might necessarily decide a sum exceeding that. If the justice had no jurisdiction in account render, then the Court of Common Pleas had no power to try on appeal, all would be coram non judice, as much as if the justice decided the title in ejectment, and on appeal the plaintiff filed a declaration, a statement in ejectment. For on an appeal, if it appear from the transcript, that the justice exceeded his jurisdiction, the defendant can take advantage of the error, though after a plea of the general issue, and a trial upon the merits. Moore v. Wait, 1 Binn. 219. There is still another objection, a fatal objection. The justice has not proceeded in an action of account render, but for a certain debt or demand under 100 dollars. Now it is clear, that in the appellate court, the appellee cannot substitute another and a different claim. No two causes of action can be more different, than a demand for debt and damages under 100 dollars, and a claim on a party to render an account of the time he was the bailiff and receiver of the monies of the complainant, for in the action of account render the plaintiff can have judgment for arrearages to a greater amount than the damages laid in his declaration, whereas in any other form of action, he cannot recover more than the damages his declaration concludes to. The mode of proceeding is totally different, the judgments different. An action of account has no resemblance to debt or assumpsit, or any other form of action or procedure. It lies only in particular cases, and the proceeding is different from all other cases. The proceedings are not only different, but the cause of action is not the same: for though it is a settled rule that the proceedings on an appeal from a justice are de novo, as to the declaration, pleadings, and evidence, yet the cause of action must continue the same. Oliver v. Shelhamer, 3 Binn. 45.

Judgment reversed.



In account render between partners, an award of referees, appointed under the the act of 1705, of a sum of money to the plaintiffs, payable by instalments, is good.

ACCOUNT RENDER was brought in the Court of Common Pleas of Allegheny county, by the defendant in error, Patrick Cunningham, against the plaintiff in error, Richard Geary, and the parties agreed to refer all matters in variance between them, (comprehending the whole of their partnership transactions and accounts,) to three persons, under the act of 1705, and that upon their report, or that of a majority of them, the prothonotary should enter judgment which should be final and conclusive. The arbitrators awarded in favour of the plaintiff, Geary, the sum of 1018 dollars and 97 cents, and costs of suit, one-third of the said sum, with interest, to be paid in six months, one-third, with interest, in twelve months, and one-third, with interest, in twenty months from the date of the award. Judgment was rendered thereon, and was now removed by writ of error.

The plaintiff in error assigned for errors:

1. That the award was void, being payable by instalments.

2. The arbitrators have not made out and annexed to their report an account, resulting in the balance which they find for the plaintiff.

Biddle, for the plaintiff in error, relied on the case of Shoemamaker v. Meyer, 4 Serg. & Rawle, 452.

Baldwin, in the first place, objected to the writ of error, that there were no exceptions filed to this award in the court below, and also, that by the agreement of the parties that the report should be final and conlusive, the defendant below was precluded from taking out a writ of error. Then as to the error insisted on, that the debt was made payable by instalments, he relied on Bard's Administrators v. Wilson, 3 Yeates, 149. The powers of referees under the act of 1705 are very extensive: they sit as a court of equity as well as law. They might order a partnership to be dissolved, or give other specific remedy.

The opinion of the court, (TILGHMAN, C. J. being absent,) was delivered by

GIBSON, J. An award of arbitrators who stand in the place of a jury, will be bad where a verdict would be bad; and a verdict for a debt or damages to be paid by instalments or in futuro, will not be sustained unless, perhaps, under particular equitable circumstanHere however the action was not for a debt or for damages, but to have an account of a partnership, and therefore there is no room for an inference that the cause of action accrued after the


(Geary v. Cunningham.)

commencement of the suit. Account render is at best a clumsy remedy and so greatly inferior to a bill in equity that it is, in England, abandoned altogether. Here it is often necessary to submit the whole matter to arbitrators who unquestionably have powers as extensive as those of a chancellor, and who may therefore make a special award in the nature of a decree, adapted to the particular circumstances of the case and a decree in the terms of this award would undoubtedly be good. But I take the point to have been substantially, if not expressly, decided in Bard's Aministrators, v. Wilson, 3 Yeates, 149. The exception to the award is therefore overruled.

Judgment affirmed.


WITHROW and another against the Commonwealth for the

use of AUSTIN.

BEASON'S Administrators against the same.


A scire facias on the sheriff's official recognizance ought to state, how the plaintiff was damnified, in what action the sheriff violated his duty. A general allega tion that the sheriff had not paid over to the parties the sums to them belonging which have come to his hands, and especially to the party who sues in the name of the commonwealth, is erroneous and bad.

On such recognizance each suitor who is damnified may sue a scire facias, and recover judgment for the amount in which he is aggrieved.

THESE were writs of error to the Court of Common Pleas of Fayette county. The first of these cases was a scire facias, issued in the name of the commonwealth for the use of John M. Austin against John Withrow and Nathaniel Mitchell, setting forth that "whereas John Withrow and Nathaniel Mitchell, on the 23d of October, 1817, before A. M'Clean, Esq., recorder for the county of Fayette, at his office in Union Town, came in their proper persons, and acknowledged to owe unto the commonwealth of Pennsylvania 10,000 dollars, to be levied of their goods and chattels, lands and tenements, upon condition, that if John Withrow should and do without delay, and according to law, well and truly serve and execute all writs and process of the commonwealth of Pennsylvania to the said John Withrow directed, and should and do from time to time, upon request to him made for that purpose, well and truly pay, or cause to be paid to the several suitors and parties interested in the execution of such writs or process, their lawful attornies, &c. all and every sum and sums of money to them respectively belonging, which should come to his hands, &c. (verbatim with the form prescribed by the act of assembly). Never

(Withrow and another. the commonwealth for the use of Austin. Beason's Administrators v. the same.)

theless, the said John Withrow hath not paid or caused to be paid to the several suitors and parties interested in the execution of the writs or process to him committed, or to their lawful attornies, &c. the sum and sums of money to them respectively belonging, which have come into his hands, and especially to John M. Austin, as by the insinuation of the said John we have received. And because we are willing that those things which in our said court are rightly acted, should be demanded by due execution, we command you, &c. to make known to John Withrow and Nathaniel Mitchell, that they be and appear before our judges at Union Town, &c.

The scire facias in the second case was substantially the same. The plaintiff below entered a rule of reference in both cases, and an award was rendered in his favour in each for the sum of 129 dollars 83 cents, on which judgments were rendered.

Several errors were assigned in this court, but the following, which constituted the third error assigned, was the only one on which the court gave an opinion.

3d. That if this action has been instituted upon the official recognizance of John Withrow, as sheriff of Fayette county, and of his sureties, the process, judgment, and all proceedings thereon are coram non judice, because, first, the act of assembly of the 28th March, 1803, which creates such security, prescribes a remedy thereupon expressly only to the commonwealth, or any individual or individuals, who shall be aggrieved by the misconduct of the sheriff. But it is not alleged on this record, that either the commonwealth or the person for whose use the suit was brought, had been so aggrieved. Second, the remedy prescribed in such cases by the said act is an action against the sheriff and his sureties, their heirs, executors, or administrators, but this action was brought against only one of the cognizors, contrary to the evident policy of the act, and contrary to its express provisions at once jeopardizing public security, and exposing the cognizors and their representatives to oppressive accumulation of costs necessarily incident to a several suit against each cognizor, or his representatives.

The opinion of the court, (TILGHMAN, C. J. being absent,) was delivered by,

DUNCAN, J. Several errors have been assigned, but as this judgment is reversed, and a venire facias de novo will not be awarded, it is not made the duty of the court, as the points now made were not made in the Court of Common Pleas, to give their opinion on every point and exception now taken, and in this case several of the exceptions do not appear distinctly on the record, nor arise on the state of the pleadings: the court will only take notice of the third error assigned. The writ of scire facias issued in this case is in the nature of an original action. The scire facias is a declaration, and the breaches should be assigned with as much certainty as the law requires in a declaration, or suggestion of

(Withrow and another v. the commonwealth for the use of Austin. Beason's Administrators v. the same.)

breaches on the record under the statute of William. The condition of the recognizance is, that the sheriff shall duly execute all process directed to him, and pay over on request to the several suitors and parties interested in the execution, their attornies, factors, agents, or assigns all such monies respectively to them belonging, as shall come to his hands, &c. The act prescribes a form of proceeding. "Whenever the commonwealth or any individual shall be aggrieved by the misconduct of any sheriff, it shall and may be lawful to institute a scire facias, on such recognizance against such sheriff and the sureties, their heirs, executors or administrators, and if on such suits, it shall be proved that damages have been sustained, and a verdict and judgment shall be thereupon given, execution shall issue for so much only as shall be found by the said verdict and judgment, which suits may be instituted, and like proceedings thereupon be had, as often as damages shall be as aforesaid sustained." This is a new course adopted by the legislature; instead of a judgment in the name of the commonwealth against the sheriff and his sureties for the penalty of the recognizance for the use of all the suitors, in which each afterwards proceeds by scire facias to recover his own peculiar damages, as is usual in official bonds, each suitor may bring in the name of the commonwealth for his use an original scire facias, assigning the breach by which he complains he was aggrieved, and recover a judgment for that amount. But that must state quomodo he was damnified, in what action or legal proceeding the sheriff violated his duty, received the money of the person for whose benefit the action is brought. Nothing of this kind is to be found in this writ, which only states, that John Withrow, the sheriff, hath not paid or caused to be paid to the several suitors and parties interested in the execution of the writs or process to him committed, or to their lawful attornies, factors, &c. the several sums of money to them respectively belonging, especially to one John M. Austin, as the court is informed by his insinuation. What sum of money--in what action recovered-how recovered? Who recovered the writ does not state. How could the defendants, particularly the surety,come prepared to answer so uncertain and vague an insinuation as this, and how, in the name of common sense, could they plead this recovery in bar of any future action John M. Austin might choose to institute? The law delights in certainty. The great object of all proceedings is, to reduce the matter in dispute to some definite point, either of law or fact. What issue, what suit would a jury be sworn to try in this case? Only the amount of the recognizance could be recovered, though the damages sustained by all the suitors might exceed that amount. How then in answer to a scire facias could the sureties plead, that there had been already recovered from them by other suitors the whole amount of their recognizance, for it would be incumbent on them not only to show the recovery, but on what ac2 G


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