
    Myers against Urich.
    Monday, December 28th.
    If the in a attach. ment pay (n'c'r to the plaintiff the debt without being' so th do by due process of law, and without the stipulation ordered by act of it ~vill not dis. charge him fi'om the ori~' ginal debtS
    THISwas an action of debt on a bond, brought in the Cornmon Pleas of Dauphin county to November term 1792; and the plea was payment, with leave to give in evidence ~paym~nt a foreign attachment. Upon
    Upon the trial of the cause before Teates and S?nitl~ justices, at a Nisi Prius in October 17991 the following facts were in evidence. foreign attachment, returnable to February term 1790 issued at the suit of James Kelly assignee of Abraham Ebersoid against .17lyers the present plaintiff; by virtue of which the amount of a bond owing to Myers but not yet due, was attached the hands of Urkh the obligor. In this attachment no declaration was filed, and judgment was rendered in the following On the 18th of September in the same year Urich paid Kelly nearly the whole amount attached. A scire facias to August terixi 1791 then issued against the ~arnishee~ upon which judgment was rendered in November, with a stay of execution' during six weeks; after the expiration of which time1 but without execution, the residue of the bond was paid by Urich. No security however was found according to the act of Assembly, 1 St. Laws 60. to answer to Myers if within a year •~nd a day he should disprove or avoid the debt &c. &c.
    The plaintiff Myers proved a good defence to the demand of ' Kelly; and it appeared to the jury that by articles of agreement between Myers and Kelly, Kelly had covenanted to pay to the very bond upon which he as assignee had brought the foreign.attachment. .A verdict was accordingly taken for the plaintiff subject to the opinion of the court in bank, whether such a payment as Urich had proved was a good defence to the demand of Myers.
    
    
      Duncan for the plaintiff.
    The precipitate and voluntary by Urich before execution, or scire facias, or the security being entered, was made in his own wrong. the proceedings were regular the garnishee could not have been compelled to pay; and not being compelled to pay, this must assume the character of any other voluntary payment to a third person If we adopted special pleading in its rigour, the. defendant would be forced to set out all the proceedings in the attachment, Baker v. Hill 
      
      ; that the act had been strictly pursued, Scarpe v. Young 
      
      ; that pledges had been, found, 1 Brownl. 62. Dyer 196. pl. 42.; and that execution had issued upon the judgment, Spink v. Tenant 
      . If this plea were effectually traversed, the garnishee would be compelled to pay the money over again; and he is bound to the same proofs under his plea of payment that would be required under the special plea. It is essential that the payment should be drawn from the garnishee by execution alone; for from the time of the execution the year and day runs, Lewkner v. Huntley 
      
      ; and if the money be paid before, by so much is the period abridged within which the defendant may resort to the pledges. The law is with Myers, because Urich has no legal defence unless he was compelled by due process of law to pay Kelly; the equity is also with him, because Myers owed nothing to Kelly, Kelly was trusted by Urich, and Urich should support the injury of his own act.
    
      Ingersoll
    
    who was to have argued for the defendant gave up the cause; and
    
      
       3 Keb. 627.
    
    
      
      
        JLutvi. 985.
    
    
      
       1 Roll. Ecp. 105.
      
    
    
      
      
         Cro. Eliz. 713;
    
   Per Curiam.

The ground of the defence is that Urich was compelled by due course of law to pay the amount of the bond to the plaintiff in the foreign attachment; but the fact is that he was not compelled by due course of law; for he could not be legally compelled unless the proceedings against him were regular, and the security required by the act of Assembly was duly entered.

Judgment for Plaintiff.  