
    [Sunbury,
    June 20,1827.]
    
    BEALE and others, Executors of BEALE, against The COMMONWEALTH, for the use of W. and C. MARKS.
    IN ERROR.
    In debt on recognizance against the surety of the sheriff, the declaration assigned as a breach, that the sheriff by virtue of an execution levied on property, and received certain sums of money which he did not pay over. It was assigned for error that no judgment was averred. Court equally divided, and judgment for the plaintiff affirmed.
    It cannot be assigned for error that the execution produced varied from that stated in the narr., in the Christian name of one of the plaintiffs in the execution.
    If a new declaration be filed with the leave of the court, and the defendant go on to trial on the former plea, he is considered as abiding by his former plea.
    Writ of error to the Court of Common Pleas of Mifflin county.
    Debt in the court below on recognizance against the plaintiffs in error, executors of TV. Beale, one of the sureties of T. Beale, sheriff of that county. To the declaration on the recognizance the defendants had pleaded payment, with leave to give the special matter in evidence; and issue was joined thereon.
    Afterwards, on application of the plaintiff,the court below granted leave to file a new declaration, and withdraw the former one. A new narr. was filed, but the former was not withdrawn. It did not appear that to the second declaration, any plea was entered or called for. The new declaration, after setting out the recognizance and the condition of it, alleged for breach, that, "While the said Thomas so continued sheriff, he, by virtue of a writ of fieri facias out of the Court of Common Pleas of said county, to him directed and delivered, at the suit of William and Christopher Marks against Samuel Belford, made a levy upon Belford’s property, (specifying it,) and at seven different payments from Belford, (specifying the date and sums) received from him on the execution, one hundred and eleven dollars and fifty cents;” and stating a refusal to pay over the same or any part to said William 
      and Christopher, though often required, &c. The errors insisted on in this court were:
    1. The admitting a new declaration when the cause was at issue, without consent of defendants.
    2. The séeond declaration, even supposing it to be legally a part of the record, sets forth no cause of action. It has throughout the names of William and Christopher Marks, instead of William and Christian Marks, as in the writ. No execution in favour of William and Christopher Marks, was, or could be produced.
    3. There is neither plea nor issue on the new declaration.
    4.. Neither in the first nor second declaration is there any judgment of any kind set out or alleged against Belford upon which any execution could have issued against him.
    After argument by Fisher for plaintiffs in error, and by Hale for defendant in error,
   The opinion of the court was delivered by

Tod, J.

There is no doubt of the power of the court below to permit the substitution of the amended narr. As clear it is, that though the defendants below might, if they thought fit, enter a new plea to the new declaration,, and it would have been regular to-have done so, yet they might elect to abide by their former plea of payment; and after a verdict, their going on to trial upon that plea must here be taken as conclusive proof that they did so elect. The slip in the name of Christopher, instead of Christian, cannot be assigned for error. The time to object to the variance was when the fieri facias, or the judgment was offered in evidence to the jury; yet the defect would probably then have been permitted to be cured at once by the amendment of the narr.

The main defect relied on is, the omission to aver the existence-of any judgment against Belford. What the case would be upon demurrer for this cause need not be decided. Admitting it to be a defect, I take it to be cured by the plea of payment and by the verdict. A breach is alleged in the words of the condition. Besides here the sheriff has collected the money on M. and C. Marks’s-execution, and has it in his hands. Suppose then the very worst that is imagined in argument: — Suppose there is no judgment or an erroneous judgment, and that the execution will be set aside upon error; at whose expense will that be? Not the sheriff’s. The writ of restitution must be executed upon W. and C. Marks, and the fieri facias is for ever a sufficient justification to the sheriff against Belford. At any rate, if the declaration is defective, the defect is .removed by the verdict. Brownfield v. The Commonwealth, for the use of Monro, 13 Serg. & Rawle, 265. Thompson v. Musser, 1 Dall. 461. Geyer v. Sailer, 6 Binn. 24. Lewis v. Ewing, 3 Serg. & Rawle, 44, appear conclusive upon the case.

Rogers, J.

I cannot concur with the affirmance of this judgment. The error alleged, is the want of an averment of a judgment; and this, I believe, has always been held in Pennsylvania, and in every other country which is governed by the principles of the common law, to be a fatal objection to a declaration.

A declaration must allege every circumstance necessary to the support of the action. 1 Chitty, 190, 185. The plaintiff must show himself entitled to the money, which can only be done by giving in evidence a judgment on which th e fieri facias has been issued. This, it will be observed, is a suit brought against the surety of the sheriff, and before action can be sustained, it is particularly necessary that the title of the plaintiff to the money should be set forth. The surety is not a party to the former suit, and cannot, upon any principle, be supposed acquainted with the plaintiff’s right. He is not called upon to answer the demand until the plaintiff has exhibited and clearly proved his claim to the money alleged to have been received by the sheriff. It is not for the sureties to disprove the right, (which would compel them to prove a negative,) but the onus probandi is, as it ought to be, thrown upon the plaintiff.

The fieri facias, without proof of the judgment, is not sufficient evidence, unless when the action is brought by the person against whom the writ of fieri facias issued; in which case proof of the judgment will not be necessary; for though a judgment may be inferred from the fieri facias as between the parties to the suit, yet it cannot be so inferred against a stranger. Lake v. Billers, 1 Lord Ray. 733. 5 Burr. 2632. 2 Bl. 1104.

I hold it to be an undeniable position, that that which is the,sine qua non of the recovery must in a special declaration,such as this, be positively and particularly averred.

This point does not depend upon general reasoning. It has already at an early day, been judicially examined and decided. Jones v. Pope, 1 Sound. 34.

That was the case of an action of debt for an escape, and Saunders took the exception that the plaintiff had only shown that he had sued a writ of execution, but had not shown that he had recovered any judgment as he ought: that the defendant might have pleaded nul tiel record to the judgment, if the plaintiff had set it out; but by this declaration, the defendant is ousted of such a plea; and for this, he cited Dr. Drury’s case, S Rep. 142. And suppose, continued Saunders, the judgment had afterwards and before the bringing of this action been reversed, the action would be gone. 8 Rep. 142.

To this, I add, if the judgment in this case had been averred and proved, it might have appeared that satisfaction had been entered on the record.

These considerations acquire great weight from the circumstance, that the surely was no party, nor cognizant of the proceedings which are the foundation of this action.

In addition to the authority of Saunders, I find, upon a careful search, that all the approved precedents, without an exception, set out a judgment. This, with reason, has always been considered as the best evidence of the law. Precedents of Declarations, 278. 8 Wentw. 460, 482. 5 Wentw. 226, 250. 2 Chitty, 350. Harris’s Entries, 433, 435, 436. Plead. Ass.

In a suit against the sheriff for an escape on mesne process, it is necessary to allege the debt.. Plead. Ass. 41. For an escape on a ca. sa. the judgment is averred. Plead. Ass. 48. The same averment must be made in an action against the sheriff for a false return to a fieri facias. Plead. Ass. 47. So also in a suit against the coroner for not returning a vend, exponas. Plead. Ass. 49. Precedents of Declarations, 278. 2 Chiity, 350.

Upon the authority of the case in Saunders, the reason of the thing, and the uniform precedents, I hold it to be clear law, that the judgment must be averred, as well as found, to entitle the plaintiffs to recover.

I do not indeed understand it to be denied, that this would have been fatal on a general demurrer, nor is it disputed that the judgment must be shown on the trial. There was not a demurrer here, but the parties went to trial on the plea of payment and after verdict there was a motion in arrest of judgment, which was overruled.

It is alleged by the defendants in error, that if there be a defect in the declaration, it is cured by the plea of payment, with leave, &e. This would indeed make a new era in legal jurisprudence. The law has not been so considered heretofore, nor can it be, in my opinion, so held on principle. The plea of payment admits the truth of the averment in the plaintiffs’declaration, and nothing more. For this I refer generally to 6 Binn. 24. S Serg. & Rawle, 316. 11 Serg. & Rawle, 318, and to the uniform course of decisions by this court.

It has been further contended, that the defect is cured by the verdiet under the statutes of jeofails, and the sixth section of the act of assembly of the 21st of March, 1806.

The principle is correctly and clearly stated in 3 Bl. Com. 395, and is decisive of the first branch of this objection: “If the thing omitted is essential to the action, or defence, it cannot be cured by a verdict.”

The act of assembly provides, that in all cases where any suit has been brought in any court of record within this commonwealth, the same shall not be set aside for informality, if it appear that the process has issued in the name of the commonwealth, against the defendant, for monies owing or due, or for damages by trespass, or otherwise, as the case may be, that said process was served on the defendant by the proper officer and in due time.

This act of assembly has been uniformly held to extend merely to matters of form; it is, therefore, unnecessary to state what my opinion would be, if the question were now, for the first time, to be settled by a solemn decision of this court.

In relation to this matter, I adhere to the rule of stare decisis.

I shall certainly not contend, but that the suggestion of breaches generally in the words of the condition, is sufficient to support the declaration, with this qualification, that the plaintiff at the same avers his title to the money. The objection here is, not that the suggestion of the breaches is too general, but that there is no averment of a judgment, or in other words, that the plaintiff shows no right to the money alleged to have been received by the sheriff on this fieri facias. The reason a general suggestion of breaches is held to be sufficient is, that otherwise the declaration would, in tho language of the book's, tend to infiniteness.

It is said, that in an ejectment the plaintiff recovers by the strength of his own title, and this is equally true of every other action. The plaintiff must always show his right to the money he seeks to recover. It is sufficient for the defendant that the plaintiff shows no right.

If this defect be cured by verdict, it is difficult to conceive what default will not be. If we axe to presume in this case that the judgment was shown to the jury, we shall, in all cases, be bound to presume that every thing was proved necessary to the plaintiff’s recovery. The principle has been heretofore, that we can judicially notice only what has been particularly averred, or appears in some way on the record of the cause. 6 Binn. 24, 28. 10 Berg. & Rawle, 233.

I would not wish to be considered as regretting this decision, as perhaps it may be supported byresorting to first principles. But as it is in my opinion, contrary to the whole current of decisions in Pennsylvania, and the general opinion and practice of the profession and the coui'ts, I repeat that I cannot concur in the affirmance of this judgment.

Gibson, C. J., concurred with Rogers, J.; but Duncan, J., agreeing with Tod, J., the judgment was affirmed, because the courf was equally divided. Huston, J., took no part in the decision, having ruled the case below.

Judgment affirmed.  