
    George Fitzgerald, for the use of Moor and Johnston, v. Andrew Caldwell, survivor of James Caldwell, his late co-partner.
   A SUIT had been brought in the court of Common Pleas of Philadelphia, to September term, 1787, by Fitzgerald, for the use of Moor and Johnson, against A. Caldwell, and removed. into the Supreme court of September term, 1787, on a note given to Fitzgerald, as agent of one Vance, for a debt due to Vance. The note was transferred to Moor and Johnson, for a debt due to them, by Vance. At the suit of other creditors of Vance foreign attachments were issued against him, and the debt, for which the note had been given, was attached by them in the hands of Caldwell; who pleaded this to the suit on the note which was then referred to referees, to report what furn was due by Caldwell to Vance, and what to Fitzgerald; subject to the opinion of the court, on a case to be stated, or, if no case should be agreed on, to the determination of the court and a Jury, to far as respected the attachments pleaded. The referees reported 3778l. 11s. 1d. due to Vance; or 5009l. 12s. 3d. due to Fitzgerald. There was judgment on this report: but both were set aside, by agreement, and the matter referred back to the same persons; who then reported 4016l. 9s. 4d. due to Vance, or 5009l. 5s. 1d. to Fitzgerald. On this report, judgement nisi was entered, for 5009l. 5s. 1d.: and on 2d January, 1792, "it was agreed by the parties that the judgement rendered, for the sum found by the referees, be absolute ; but shall await the trial of the attachments, and, if any thing should be recovered thereon, against Caldwell, the same shall be defalked out of the said sum, for which judgment was rendered, as aforesaid, and execution shall issue for the residue only.” One of the attachments having, been tried, and the jury having found (as the debt had been previously assigned), that Caldwell had no property of Vance's in his hand ; there was judgment on that verdict. Whereupon, on motion, that, the money having been tied up in Caldwell’s hand, by attachment, no interest should be charged on it; the Supreme court ordered, that Caldwell be discharged from the said judgment, on the payment of 4016l. 9s. 4d. viz. the principal sum found due to Vance by the said report of the referees. To reverse this order, and have the effect of the judgment for 5009l. 5s. 1d. a writ of error was brought in behalf of the plaintiff, to remove the record into the high court of Errors and Appeals. Here it was argued, in July term, 1793, by Tilghman, Wilcocks, and Lewis, for the plaintiff; and by Sergeant, M'Kean, and Ingersoll, for the defendant.

On 18th July, 1793, the president delivered the opinion of the high court of Errors and Appeals, reversing the order of the Supreme court, for lessening the judgment; and affirming the judgment for 5009l. 5s. 1d.

The following are short notes, which I took of his argument—

The first agreement of reference is a leading feature in the cause, accurately expressed; well understood by parties, counsel, and court; approved by the court, and put on the record; binding all, and to be enforced not infringed by the court.

All this was done,so far, by court, referees, and parties.

But a case remained to be stated and argued, and decided by the court, or to be tried and determined by the court and jury. It is the province of a jury, to settle facts ; of a court, to declare the law. The verdict, on the scire facias in the attachment, found nothing in the hands of the defendant. Of course, at the time of the motion, and the order of court, no defalcation was to be made, under the second agreement. The judgment was for the sum due to Fitzgerald. The court order defendant to be discharged, on payment of the principal sum, or that found due to Vance.

The first agreement gave no such authority for this order. For no case had been stated, and no trial by jury had been had. The exceptions to the first report were not, that interest should not be paid on money attached, nor that the agreement was misunderstood, nor that judgment was entered nisi, on the wrong sum. The question of interest on money attached was not submitted to the referees, and could be no part of their report, nor, of course, of the judgment on the report.

Neither the first nor the second agreement, nor any thing appearing on the record warrant the judges of the Supreme court, to lessen the judgment entered :—And the consent of the parties to enter it restrained them. Yet, without any reason appearing, they have changed the judgment entered by consent, and made a new one, at another term, than that in which it was entered.

If courts can do this, trials by jury or reference, and judgment by confession, will be a nullity, when without any reason appearing, a court will discharge a defendant for a less sum. If they may discharge for a less, they may refuse to discharge but for a greater. This order is to be taken in the nature of a judgment, being decisive on the rights of the parties : and to say, that, because it is not in the form or expression of a judgment, when it has all the effect of one, therefore, it is not a judgment, and no writ of error lies on it, would leave courts at liberty to do that informally and covertly, which they could not do openly and regularly.

We mean not to say, that a court cannot, in any case, after judgment, prevent a party from recovering more under it, than the judgment gave him. We have nothing to do with the question of interest on attached money. We look only to the record; and it, from the deliberate consent of the defendant, bound up the court from doing what has been done.

The judgment, therefore, of this court is, that the last decretal order of the Supreme court be reversed; the judgment given for 5009l. 5s. 1d. and costs be affirmed; and the record be remitted into the Supreme court, that justice be done thereon.  