Blackburn v. Markle

Tilghman C. J. This agreement was entirely collateral to the action. It would have been better .to have entered anew action,-in which the defendant should have been plaintiff. Being made however by rule of Court, the party injured by non-performance of the award, might perhaps have remedy by attachment, but as to that I give no opinion. That is the mode by which reports under rules of Court are enforced in England, and could have been enforced here, but for an. act of assembly, which authorizes the entry of a judgment in the same manner as upon the verdict of a jury. Act for Defalcation, 170S. But suppose that upon the verdict of a jury, a sum of money should bé found due from the plaintiff to the defendant. At common law no judgment can be entered for the defendant to recover any. money from the plaintiff. But here again our act of assembly alters the common law. In such case the defendant may have a scire facias against the plaintiff, on which he may have judgment and execution for the sum found in his favour. Reports of referees being-jut upon the same footing as verdicts, I do not see in what manner the defendant can support his proceedings. If .his case falls within the act of assembly, he should have taken a scire facias, or as I have intimated, perhaps he might have had remedy by attachment. But even if it had been a proper case for an attachment, the Court would not have awarded it without enquiring whether the party moving for it, had done on his part every thing which he ought tQ have done, and in this case it appears that some [176] thihg was to be done by the defendant. He was to deliver uP articles of exchange. Consider* the matter in what view you will, it appears to me that the judgment and execution were erroneous. I am therefore of opinion that they should be reversed. Yeates J. and Bb.ackenr.idge J. concurred. Judgment reversed.