
    [Lancaster,
    May 24, 1826.]
    NEFF and another against BARR.
    
      IN ERROR.
    Where judgment has been confessed in one county, on a bond by virtue of a warrant of attorney, the power is satisfied; and another judgment cannot be confessed on the same bond, by virtue of the same warrant, in another county. But this cannot be taken advantage of on a writ of error. The court in which the second judgment is entered, will, under ordinary circumstances, vacate it. But how far the court will exercise their discretion;.ry power to let in the subsequent judgment of a third person, qussre.
    
    A feigned issue is to inform the conscience of the court'as to disputed facts, and is to be moulded as their discretion dictates. And the mode in which it is done by the court below is not the subject of a writ of error, and cannot be judicially decided on by this court.
    Where two judgments have been entered by virtue of the same power in different counties, and an issue is directed by the court in which one of the judgments is entered to determine whether or not that judgment be valid, the party who alleges that it is not valid, may give in evidence an entry in the docket, stating the hour and minute when the judgment was entered; if it appeal’ from other evidence that such entry was made by the opposite party, or his agent. But it seems, that the burden of showing which of the judgments was first entered, properly lies on him by whom they were entered.
    Writ of error to the Court of Common Pleas of Lancaster county, in a feigned issue directed by that court to try the validity of a" judgment, in which Mraharn Barr, Christian Barr, and .Michael Withers were plaintiffs, and Joseph Withers and Chey-ney Pelin defendants.
    
      Mraharn Barr, the defendant in error,
    was plaintiff in the issue, and John Neff and Francis Kendig defendants. The circumstances which gave rise to it were as follows:
    
      Joseph Withers and Cheyney Pelin gave their bond to Mra-ham Barr, Christian Barr, and Michael Withers in the penalty of three thousand dollars, conditioned for the payment of fifteen hundred dollars, with a warrant of attorney to confess judgment or judgments, in any of the courts of record of the state, after one or more declarations filed. On this warrant of attorney, judgment was confessed on the 2d of May, 1614, by Charles Smith, Esq., in the Common Pleas of Lancaster county. The docket of this judgment contained the following entry: “Entered a quarter past ten, A. M.” On. the same day, on the same warrant, and by the same attorney, judgment was confessed in the Common Pleas of York county, and the following entry was made in the docket: “ Entered half past six o’clock, A. M.”
    
      John Neff, Francis Kendig, George White, and Thomas Crawford, issued a capias in case against the said Joseph Withers, in the Court of Common Pleas of Lancaster county, returnable to Jlugust Term,-1814. This cause was arbitrated, and on the 14th of March, 1815, an award was riled in favour of the plaintiffs, for ten hundred and seventy-three dollars and fifty cents. From this award the defendant appealed, and, after certain proceedings, the plaintiffs, on the 22d of November, 1818, obtained judgment in a scire facias against the administrators of the defendant, who had died in the meantime.
    To April Term, 1815, a fieri facias was issued upon the judgment obtained by Abraham and Christian Barr and Michael Withers, in Lancaster county, and levied on real estate. A ven-ditioni exponas, returnable to August Term, 1815, was issued, which was returned, “Time given by the plaintiffs.” After this, several successive writs of venditioni exponas were issued, which were returned, “Unsold for want of buyers/’ On the 20th of April, 1822, upon motion and affidavit filed, the court, on argument, granted a rule to show cause why the judgment should not be vacated. This motion was made on behalf of Neff and. Kendig, on the ground, that by the entry of judgment in York county, the specialty debt was merged in the judgment, and the warraht of attorney; was functus officio. The rule to show cause was argued, and the court held the matter for some time under advisement. On the 25th of November, 1822, the court directed an issue to be formed, to ascertain whether the judgment in Lancaster or that in York county, was first entered; the judgment to remain as a security. And on the SOth of the same month, they directed an issue to be formed, “ in which the jury may determine the facts necessary to ascertain, which of the judgments is entitled to a legal preference;” namely, the judgment of the Barrs, or that of Neff and Kendig. On the 22d of December, 1822, a declaration was tendered by Abraham Barr, who survived Christian Barr and Michael Withers, in which he was made plaintiff, and Neff- and Kendig defendant's, and which laid a promjpe by them to pay him ten dollars, if the judgment of the said Abraham Barr against Joseph Withers and Cheyney Pelin, in Lancaster county, was a legal and valid judgment. This declaration, which specially recited the judgment of Neff and Kendig, was marked, filed December 2Sth, 1822. Neff and Kendig also tendered a declaration, which was marked, filed January 4th, 1823, in which they made themselves plaintiffs and Abraham Barr defendant, and laid a promise to pay him ten dollars, if the judgment in York county was not entered before the judgment in Lancaster county. Neither of these declarations was acted upon, nor was any plea entered. The court, not considering that either of them met their views, on the 24th of January, 1824, directed an issue, in which Barr was plaintiff and Neff and Kendig defendants, upon a wager of ten dollars, whether the judgment entered in Lancaster county was a legal and valid judgment. To this declaration Neff and Kendig pleaded, “ that, though they did promise, yet the said judgment was not a legal and valid judgment.” Barr replied, “ that it was a legal and valid judgment.” On this issue, the parties went to trial. The jury found a verdict for the plaintiff, on which judgment was entered, and it was to reverse this judgment that the present writ of error was brought.
    On the trial, the defendants, after having given in evidence an exemplification of the record of the Court of Common Pleas of York county, of the judgment by Abruham and Christian Barr and Michael Withers against Joseph Withers and Cheyney Pelin, read the deposition of William Barber, Esq., who stated that the entry of this judgment was made by him on the day, and, to the best of his knowledge and belief at tbe time in the morning, stated on the record, to wit, at half past six o’clock: That he was prothono-tary at the time: That he recollected that some person called at his house early in the morning.of the 2d of May, 1814, and desired the deponent to go with him to the office, when the entry above stated was made: That the deponent could not say with certainty who it was that called upon him, but was under the impression it was one of the plaintiffs in the judgment, and that he requested to have the hour and minute of its entry noted on the docket, with what view the deponent could .not state.
    The defendants then gave in evidence the record of the suit brought in the Court of Common Pleas of Lancaster county to August Term, 1814, by John NeffanA others 'against Joseph Withers, and the subsequent proceedings on the scire facias to November Term, 1818, against the administrators of Joseph Withers, and afterwards examined Henry Brenneman, who testified, among other things, that Abraham Barr had said to him that he went to Mr. Smith, and told him to have the judgment entered in Lancaster county at a certain hour, and he. Barr, would try to have it entered at York at the same hour. The witness asked, if it was so? To which Barr answered it was not; it was a little later; a few hours; nine o’clock was the-hour Mr. Smith was to have it entered. Michael Barr, another witness, stated that Abraham Barr told him he had come to Lancaster for the purpose of entering his judgment; that he called on Mr. Smith, and told him that he, Barr, should go on to York and enter the judgment at a particular hour, and he, Mr. Smith, should have it entered at Lancaster at the same time. He did not say at which place he had entered it first. Gerardus Clarkson, who was also examined, stated that the entry was in his handwriting, and he was satisfied it was done at the time. The hour and minute of entering the judgment was never entered while he.was in the office, and he did not recollect why it was done in this case. He had no recollection about it. He was certain he did not do it of his own accord, and had no doubt he was told to do it by some person. It might have been done then or some days after; but he believed it was done at the time from his having marked it so, but he had no recollection about it.
    After the evidence above stated had been given, the defendants offered to read to the jury the entry in.the docket of the judgment in Lancaster county, “Entered at a quarter past ten, A. M.;” tin-plaintiff having refused to read that entry, when the record of the judgment was given in evidence by him. The plaintiff’s counsel objected to the entry being read in evidence. The court sustained the objection, and an exception was taken to their opinion. This was the first error assigned.
    The second was, that the court below had no authority to direct the issue on which the trial was had.
    
      Ellmaker and Rogers, for the plaintiffs in error.
    1. It was proved that the judgment in York county was entered at half past six o’clock, A. M., and the docket entry offered by us would have proved, that the judgment in Lancaster county was entered at a quarter past ten, A. M. We gave evidence, tending to show that Charles Smith, Esq., was the agent of Jibraham Barr; and, if so, any acts or declarations of his in the course of his agency, were evidence against his principal. We also gave evidence, tending to show that Mr. Smith ordered this entry to be made, and this fact ought to have been submitted to the jury. Here the entry was in the handwriting of one of the witnesses, and the rule is, that where a written memorandum is made by a witness, the court will compel him to produce it when he gives his evidence. 1 Rep. of Con. Ct. of South Carolina, 423.
    
    
      2. The court had no right to direct the issue on which the cause was tried, after having directed another and more proper issue; nay, after having directed two issues. The only fact' necessary to be ascertained was, whether the judgment in the county of York was entered before that in Lancaster. ■ If that fact had been decided in our favour, the court would then have decided whether to vacate the judgment or not, and they would have heard any objection to vacating it which could have been urged by the plaintiff, and if necessary directed other issues to try other facts. But instead of this, the court directed an issue, involving questions of law, to be tried by a jury. The declaration was drawn by the President, and was not conformable to the order previously made; and this the court had no power to do. It was too late to make the amendment. I Bac.M. 146. 1 Tid, 651, 660, 661. Cro. El. 497.
    
    
      Jenkins and Hopkins, for the defendant in error. The question whether the judgment in York or Lancaster county was first entered, was not the only one to be taken into consideration in this case. The judgment in Lancaster county was not void, though it may have been erroneous. It had remained seven years unquestioned, after which no writ of error could be brought; besides which, it had been entered with a release of errors. Several writs of venditioni exponas had been issued for the sale of the land of Withers, which had been postponed at his earnest request. We contended, that it was a case in which Neff and' Kendig ought not to be heard, nor even Withers, so far as related to vacating the judgment, if he had wished it, though it does not appear that he ever complained. Pelin certainly did not. The plaintiffs in error have not sustained either of their exceptions.
    1. There was no proof that the docket entry, naming the time of entering the judgment, was made by order of the plaintiff or of his attorney, Mr. Smith; without which it could not be read, for it formed no part of the record. No law authorizes such an entry. By the act of the 21st of March, 1772, Purd. Dig. 990, the day of entering a judgment is required to.be entered on the margin of the record, but not the hour. The clerk was allowed to refresh his memory by an inspection of the entry, yet he does not prove that the plaintiff had any agency'in having it made. It was the voluntary act of the clerk, and therefore was not evidence.
    2. It is a power necessarily inherent in the court, to mould issues according to their discretion, to ascertain the necessary facts, and to meet the justice of the case. The first issue was confined to the time of entering the two judgments, which cut us off from many points of defence. The court perceived this, and during the same ter> , altered the issue. After this, each party drew" a declaration of different import, and the court was appealed to, to decide between them; in consequence of which, the President drew a declaration differing from both the others, putting the matter upon the question, whether the judgment in Lancaster was valid, and on this issue the cause was tried. On no other issue could all the points involved in this dispute be discussed, and justice required that it should be adopted.
   The opinion of the court was delivered by

Duncan, J.

The natural order of considering the errors specified in the record, is, first.to take up the question on the power of the court to direct the issue. There is no exception to the opinion of the court on the trial of .the cause, and the record shows that Neff and Kendig put in their plea to this declaration, and went to trial on that issue. That the judgment in York county, if first entered, would merge the specialty debt, we have no doubt. The power to confess a judgment, or judgments, was satisfied by the entry of the first judgment. That this, however, cannot be taken advantage of on a writ of error seems equally clear. The court in which the second judgment was entered, would, under common circumstances vacate it. This was done by this court in Martin v. Rex, 6 Serg. & Rawle, 296. The judgment, however, was not considered as void, but irregular, and a sale under it would give the purchaser a good title. The attorney, as well-as the plaintiff, would however be answerable for the consequences. How far and under what circumstances the court would! exercise that inherent power, on the application of a third person, to let in his subsequent judgment, is what the court, at present, refrain from touching. Each ease must depend on its special circumstances. Cases may occur in which justice would require the court not to interpose. The motion, like others for summary relief, is one on which the court usually exercise their judgment without the intervention of a jury, and I do not see the propriety of directing an issue, unless it be to ascertain some disputed fact. Share v. Becker, 8 Serg. & Rawle, 242. The issue is to inform the conscience of the court. This is likewise the practice in chancery; for where the facts are complicated and uncertain, the chancellor, under a feigned issue, will send them to be investigated at law, in order to obtain an oral examination of the witnesses and a trial by jury. 3 Bl. Com. 452. It is an issue to be moulded by them, as their discretion dictates. Whether there was any disputed fact, except as to the time of entering the first and second judgments, I know not. I therefore cannot say this was an injudicious exercise of the power of the court. It is not broader than the issue devisavit vel non, which involves many facts, besides the mere execution and publication of the will; the sanity of the testator, his infancy, or his dotage;, fraud in obtaining the will. Judging from the record, the court cannot see any thing which would justify them in reversing for a matter so purely in their discretion and under the power of the court. The mode of doing it the court cannot know, nor judicially undertake to decide on. The consideration of the court, in a case of this kind, is not the subject of a bill of exceptions, nor can it be assigned for error. It was a matter entirely with them, and cannot be viewed, from the inspection of the record, as an alteration of a record in judgment, but as the legitimate exercise of a discretionary power intrusted to them by the laws of the land. The court, therefore, cannot perceive any error in directing the issue, that can be reviewed or corrected here. Indeed,-1 cannot look at any thing but the action, which is an action on a wager claimed by Barr. The wager itself admittéd by the pleading, and the issue whether the event had happened on which Neff and Kendig had lost the wager, and therefore nothing properly can be considered but whether any error took place in the trial of thafcaclion, or in the judgment rendered on it. If there was error in the trial, improper evidence received, proper evidence rejected, an error in any opinion delivered by the court and excepted to, the parties have their remedy, if they are aggrieved, by writ of error, and the plaintiffs here have availed themselves of that remedy; and ! am of opinion that there was error in rejecting the entry of the hour of entering the Lancaster judgment, and 1 mean not to go out of the record to decide any point. But it is not unworthy of consideration, whether the plaintiff below ought not to have pleaded the time of the entry of his judgment, and whether the burden of proof would not lie on him. There are, in legal proceedings, no fractions of a day. The judgments, if in the same .court, are, in contemplation of law, at the same instant. There could be no inquiry which was first entered, when both were entered on the same day; in a common case, for instance, if there be different judgments by different plaintiffs against the same defendant, on the same' day, in the same court. But if the law would allow, and I think it would, the inquiry made into the priority of instant when the power was first executed, where it had been twice executed in different courts, for the purpose of binding lands in different counties— then if the party by his own act has created the difficulty, to cast the burden of the proof of a fact, peculiarly within his knowledge, but not within the knowledge of his adversary, on his adversary, would be a hardship which it is questionable whether the law would subject him to. But certainly if it did, it would allow him to use the best evidence the nature of the ease would admit of, and I cannot see what, better- evidence he could offer than the entry in the docket; not because it is a matter of record, conclusive of the fact, but evidence of the transaction of the man who had both judgments entered, or of his agents. The entry, it is proved by the declarations of Barr, was to be made at the time of day in which the confession of judgment took place. It was done so in the York judgment by his direction, and that it’was to be so entered on the Lancaster judgment, and for the very purpose of ascertaining thepriority of time, the clerk who made the entry testifies. It was by the instructions of the agent who brought the declaration to the office, and when the clerk, though he has no precise recollection on the subject, but what the entry furnishes, swears that it was done by direction at the time, as he believes, and that it would not have been done without such direction, and when the man now objecting’to it, acknowledges that it was to be so done, to deprive the party of all means of proving this important fact, would be shutting out the light of the sun.- There was evidence that this was the act of Barr; done by his direction; entered in the docket by his direction. It was part of the res gesta, and it was persuasive evidence, when the party declared that this unusual entry was to be made, when it was proved to have been so made, thát it was made at the time it purports, by his direction. For this reason, I am of opinion that the judgment should be reversed anda venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  