
    * [Philadelphia, January 16, 1838.]
    HUFFSMITH against LEVERING.
    IN ERROR.
    1. The merits of a judgment obtained before a justice 'of the peace, cannot be inquired into on the trial of an appeal from a judgment given by him on a scire facias upon the original judgment, unless, perhaps, it appear upon the record of the original suit, that the justice had not jurisdiction thereof.
    
      2. Therefore, it was held, that on the trial of an appeal from a judgment of a justice of the peace, on a scire facias guare executio non, it was not competent for the Court to go into evidence showing that the title to land was involved in the original suit; although by the practice of the Court, the declaration on the appeal was for money had and received, and the plaintiff opened his case upon the original cause of action, and gave in evidence the promissory note upon which the suit was brought, v
    Error, to the Court of Common Pleas of Monroe county, to remove the record of a suit, there depending between Peter Huff-smith, plaintiff, and Abraham Levering defendant.
    The case came before the Court below on an appeal from the judgment of a justice of the peace rendered on a scire facias quare executio non, fflc.
    The transcript showed, that the original suit was commenced on the 27th of January, 1834, and that the plaintiff’s claim was for the amount of a promissory note, dated the 1st of April, 1830, payable the first of April 1832, for $25. Judgment was rendered in favour of the plaintiff for the amount of the said note, (after deducting a small credit,) on the 1st of February, 1834.
    On the 12th August, 1835, (as also appears by the transcript,) the said judgment was revived by scire facias, from which judgment of revival the defendant appealed.
    The cause came on for trial at the Court of Common Pleas of said county, on the 22d day of February, 1837. The plaintiff’s counsel opened his case, gave in evidence the note mentioned in the transcript, and rested his case.
    The defendant’s case was then opened, and he called
    ^Nicholas Alternóse as a witness — who. proved the execution of an article of to which he was a witness, between the plaintiff and defendant, for the sale of a tract of land, dated the 10th of February, 1830, for the sum of $75, in annual payments of $25 each: to the admission of which in evidence the plaintiff objected; but the Court admitted the same; which forms the subject of the first bill of exceptions.
    The defendant then offered in evidence the deposition of Frederick Levering, his brother, taken upon a rule to Lancaster county, to prove the execution of the said article of agreement, and that the interlineations were made before its execution. To the admission of which the plaintiff objected; but the same was admitted; which forms the subject of the second bill of exceptions.
    Nicholas Alternóse was then called again; who testified that Levering was to pay $75 for the land; he was to pay $25 for the first payment, and $25 a year. And
    H. E. Wolfe, Esq., who testified: “I was an arbitrator in this case, and I think the note was admitted to be given for the land in this agreement, and for the last .payment. Huffsmith was present at the time.”
    The defendant here rested his case.
    The plaintiff then called C. H. Haney, who testified: “I came to the house of Abraham Levering in 1833, and he said, I am glad you had the Pocono property solc[, or else I could not have got a good title of Huffsmith. He got out the sheriff’s deed: the plaintiff and I are brothers-in-law. It was when Levering lived in Chesnuthill township. The deed was to Huffsmith and Merwine, and the property was sold to them at my suit.”
    And the plaintiff, further to maintain the issue on his part, offered in evidence the record of a judgment in the Court of Common Pleas of Northampton county, No. 87, to January term, 1832; Valentine Wagener v. Abraham Levering — the fi. fa. levy, inquisition, venditioni exponas, and condition of sale of the property mentioned in the said articles of agreement given in evidence by the defendant, for the purpose of showing that the title of said land passed out of the defendant by judicial sale, free of all incumbrances, before this suit was instituted before the justice.
    To the admission of which in evidence the defendant objected, and the Court sustained the objection, and overruled the evidence ; which forms the subject of the third bill of exceptions.
    The plaintiff also called William Serfass as a witness, who : “Mr. Huffsmith came to my house in 1833, and said he wanted me to go to Levering’s with him, he wanted to deliver a deed, and get $25. We went down to Levering’s. Levering was in the room, and Huffsmith said he had a title. Levering took it, opened it, and read. He read it awhile, put it together again, and said he thought it was right. Levering went to the desk, and put it away. Huffsmith said he ought to have the money. Levering said you have got the note, and I ought to have the deed a while ago. Levering put it away in the desk, and Huffsmith and I went off together.”
    Being cross-examined, he said; “I heard Huffsmith say that he gave it back to Esq. Trach — -Pluffsmith said he had given it back to Trach to keep until the judgment was paid. I did not swear before the arbitrators that Pluffsmith said he had gone to Levering’s and got the deed back again.”
    The plaintiffs again rested their case.
    The defendant called H. E. Wolf again, who testified: “William Serfass was before us as a witness. He then swore that Huffsmith said he had got the deed back again from Levering. This appears by my notes — they are rough notes.”
    The defendant also called Jacob Bonser as a witness, who testified : “I met Huffsmith on this property, and he said to me, till next spring I will be tbe owner of tbis. I asked him if be bad made title — be said be bad, but Levering would not accept it. Tbis was in tbe year 1835- He said Levering refused to accept tbe title because it was not according to tbe agreement. Huff-smith said, if I wanted to rent, I could rent of him. Tbis was about the same property.”
    Tbe testimony being closed, tbe Court was requested to charge tbe jury upon the following points:
    “1st. That tbe suit being upon a promissory note, and not upon a real contract, the justice bad jurisdiction.
    2d. That if tbe note upon which tbe suit is brought were given for tbe balance of tbe purchase-money of land, tbe defendant having accepted of tbe deed before suit was brought, be is estopped from alleging its insufficiency, or that it got out of bis bands.
    3d. That it is incumbent upon tbe defendant to prove clearly that tbe alteration in tbe agreement was made before its execution ; and if be does not, tbe law presumes that it was made afterwards, and renders tbe instrument void as to tbe rights of tbe defendant under it.”
    *The Court (Scott, President) charged tbe jury as follows:
    “ Tbis suit was commenced before a justice of tbe peace upon a promissory note for $25, dated 1st April, 1830, and payable 1st April, 1832. Tbe defence is, 1st, an entire failure of consideration ; and, 2d, want of jurisdiction in tbe justice, and of consequence in tbis Court.
    To sustain bis first position, tbe defendant has given in evidence articles of agreement between tbe parties, dated Feb. 10th, 1830, in which tbe plaintiff agrees to sell to tbe defendant a certain tract of land upon tbe Pocono for $75, payable in instalments of $25 each, and insists that tbis note was given for one of tbe instalments. Was then tbis note given in part consideration for tbe land described in tbe article of agreement ? If it was not, there is an end to the controversy; tbe plaintiff must recover; for tbe whole defence rests upon this ground. Upon tbis question tbe jury are referred to tbe agreement itself — to tbe testimony of William Serfass, who went with tbe plaintiff in 1833 to get bis money, and tender a deed, as be testifies, and what passed between tbe parties on that occasion; also to tbe testimony of Mr. Wolf, who was an arbitrator in tbis case, as to tbe admissions of the plaintiff or bis counsel before tbe arbitrators. If tbe jury should be satisfied from tbe evidence that tbe note in question was given in part consideration for tbe land mentioned in tbe articles of agreement, it is insisted on tbe part of tbe plaintiff that before tbe commencement of tbis suit, be made and executed a conveyance as he was bound to do by the articles of agreement; that he delivered it to the defendant; and that it was accepted by him; which was an entire and perfect satisfaction of the covenant in the articles to convey, and that therefore the question of title could not, and in fact does not, arise in this case; and that the defendant is estopped from alleging its insufficiency. It would really seem to me, that if the dispute about the title was amicably settled by the parties to the entire satisfaction of the defendant, as is alleged, by the delivery of such a conveyance as the articles of agreement required, ánd its acceptance by the defendant in discharge of the plaintiff’s covenant to convey, the defendant should not now be permitted to resist a recovery, and undo that which the parties had amicably done. What then is the evidence upon this point? The jury are referred to the testimony of William Serfass, Charles Haney, and Jacob Bonser. The only witness who speaks of the contents of the deed is Charles Haney, who was called by the plaintiff, who says it was a deed from the sheriff to the plaintiff and Peter. Merwine; not from the plaintiff to the defendant, but to the plaintiff and Merwine. And the witness Bonser says, that in 1835, the plaintiff, among other things, said that he had made the’title to Levering, and he would not accept it, because it was not according to contract; and that if he wanted to rent must ren’fc him the plaintiff. If the deed tendered was the one Haney speaks of, it surely was not according to contract. But it is alleged on the part of the plaintiff, that the agreement has been altered in a material part since its execution, and therefore that it is void. Where material alterations appear upon the face of an instrument of writing, the law presumes they were made after its execution. But this presumption may be rebutted by evidence that they were made before. The testimony of Alternóse and Levering, if believed, shows that the alterations were made before signing. But the most important question involved, is, whether the justice had jurisdiction ? It is well settled by a uniform current of decisions, that a justice of the peace has not jurisdiction arising upon contract where the title to land may come in question. In this case there can be no doubt but that the title to land is involved. The whole defence rests upon want of title to land. The plaintiffs therefore, cannot recover. Your verdict must be for the defendant.”
    The jury found a verdict for the defendant; and the plaintiff having removed the record to this Court, assigned the following errors.
    “ 1. The Court erred in admitting the evidence which forms •the subject of the first and second bill of exceptions.
    
      2. The C.ourt erred in rejecting the subject of the third bill of exceptions.
    3. The Court erred in answering the first point propounded by the plaintiff’s counsel.
    4. The Court erred in answering the second point.
    5. Upon the facts in evidence, the Court erred in taking the case from the jury, by saying that the justice had no jurisdiction.”
    Mr. R. Brodhead, Jr. for the plaintiff in error,
    cited Guilky v. Gillingham, (3 Serg. & Rawle, 94); Kauffelt v. Bower, (7 Serg. & Rawle, 73); Weidemor v. Drissel, (1 Yeates, 77); Sechrist v. Connellee, (3 Penn. Rep. 388); Campbell v. Gallagher, (2 Watts, 135).
    Mr. Ihrie, for the defendant in error,
    cited Heffelfinger v. Shutz, (16 Serg. & Rawle, 44); Lee v. Bean, (3d Rawle, 325); Campbell v. Walker, (5 Watts, 482); M‘Kinney v. Rhoads, (Id. 346); Moore v. Wail, (1 Binn. 2l9); Manhardt v. Soderstrom, (5 Sm. Laws, 177; 1 Binn. 138).
   The opinion of the court was delivered by

*Gibson, C. J.

The record returned with this writ of error, is a pregnant proof that the forms of the law are the guardians of its principles. The.suit below was an appeal from the judgment of a justice, on a scire facias quare execuiio non ; in which, pursuant to a practice tolerated in appeal causes, the plaintiff declared for money had and received. This practice may be a convenient one; but it leads to irregularities, which, if not corrected, would not only change the form of the proceeding, but impair the rights involved in it, as happened in this instance. Had the cause been put at issue as it ought to have been, on the plea of payment, even without a proper declaration, which is needless in cases of scire facias, and seldom filed, the matter to be tried would have been so clearly indicated, that a mistrial could scarce have taken place. As it was, it must have appeared to the Court, as well from the evidence as the pleadings, that the suit was on a promissory note as an original cause of action ; for the plaintiff gave in evidence, not his judgment, but the note on which it was obtained; and the defence, as might he expected, was one which, however admissible in the original action, was excluded by the judgment. Evidence was received to show failure of consideration, because a title to the land for the price of which the note was given, had not been tendered; and also to show want of jurisdiction because the validity of the title might have been in question : matters judicially settled and not to be controverted a second time. Since Cardesa v. Humes, (5 Serg. & Rawle, 65,) it has not been supposed here, nor had it been elsewhere, that the merits of a judgment may be opened on a scire facias, to let in a defence that might have been urged before; and this for the best of reasons, because the matter must be taken to have passed in rem judicatam. Indeed it requires not the authority of that case, for a principle so plain as that a party actually or potentially heard, is not to be heard over again.

Nor was the evidence proper in this proceeding, to show want of original jurisdiction; though it would have been clearly competent to do so in the original action. Title to land had been indirectly in question, and perhaps erroneously passed upon; but the corrective is not collateral revision. Consent, it is said, gives not jurisdiction; and advantage can be had of the want of it at any time. I take that to be true when want of jurisdiction is evident from the nature of the proceeding, or apparent on the record, as in Lord Clare v. Roach, (2 Show. 98, pl. 96,) in which it was agreed that consent of record, would not authorise a trial of the title to land in another country; but it is not true, where want of jurisdiction in the particular instance is the effect of limitations operating as exceptions, as in Fox v. Wood, (1 Rawle, 143). These afford grounds of special defence which may be waived, and consequently leave no trace of their existence on the record, so that the cause of action may appear to be regularly withinthe general jurisdiction of the fo rum; and *^611 party has not shown his case to be within the exception, at the proper time, no principle of justice requires that he be permitted to show it afterwards. Rut what is his remedy when he has attempted to show it, and it is erroneously determined ? Clearly an appeal, as in the case of any other erroneous determination. The defendant did not appeal; so that debate about the nature of the consideration is consequently concluded; and as want of jurisdiction is not apparent on the record, it may not be shown on the trial of a scire facias, which is a collateral proceeding.

Judgment reversed, and a venire de novo awarded

Cited by Counsel, 7 Watts, 140; 1 Watts & Sergeant, 415 ; 1 Casey, 79 ; 2 Miles, 253. 
      
       See 7 Watts, 237.
     