8 Watts 181 | Pa. | 1839
The opinion of the Court was delivered by
This is an action of debt, in which the plaintiff declares for the sum of eight hundred and fifty dollars and ninety-six cents. For that in the supreme court, &c. by the consideration of the said court, the plaintiff recovered against the defendant the sum of eight hundred and fifty dollars and ninety-six cents, &c.
The defendant pleads nul tiel record, nil debet and payment, and, on the trial, the plaintiff recovered nine hundred and sixty-nine dollars and two cents.
The defendant moved the court for a new trial, and on the 7th of May 1839, the court awarded that a new trial be granted, and that there be judgment for the defendant on the plea of nul tiel record.
The plea of nul tiel record goes to the whole of the plaintiff’s declaration; the judgment, therefore, in that plea is a judgment in chief which puts an end to the action. The award of a new trial is clearly an error, as there is nothing to try, and it would be without precedent to make such an order, to give the plaintiff an opportunity to alter his whole cause of action.
On the argument, the plaintiff brought into court the record of a decree of the supreme court, on an appeal from the orphans’ court of York county, on the account of Jacob Smyser, guardian of George F. Eichelberger, the plaintiff. The court entry on that record was, that the decree of the orphans’ court be reversed, so far as relates to items 2, 4, 5, 7 and 8, which are ordered to be stricken out of the account, and the decree confirmed as to the residue. This, although apparently a loose proceeding, is nevertheless the usual manner in which such decrees are made. Nor is this course productive of any inconvenience, as the record is remitted to the orphans’ court, who make the alteration in conformity to the opinion of the supreme court, and carry the decree of the court-
Payments made by the guardian would be a defence to a suit to enforce the decree, although every previous transaction between the parties would be concluded by the decree. By the 11th section of the act of the 29th of March 1832, compliance with an order or decree of the orphans’ court may be enforced by attachment or sequestration, or in case of a decree for the payment of money against a party who has appeared, the complainant may have a writ of execution, in the nature of a writ of scire facias. Besides, as has been before intimated, the party may have redress by action of debt, or assumpsit, in which the decree is but inducement, or
Judgment for defendant.