
    McCaughey vs. Carr.
    Where a judgment by confession is opened, the defendant is not entitled to a certificate for tho amount overpaid.
    Error to Common Pleas No. 4 of Philadelphia County. No. 351, January Term, 1880.
    In September, 1879, John Carr sold to William J. Mc-Caughey, the Defendant, (an illiterate man who had been for many years in his employ), the stock good-will and.fixtures of a liquor store, No 3048 Market street. Several payments on account and allowances had been made, and a statement of accounts and allowances had been made out by Plaintiff, in which, instead of deducting from the amount due by Defendant a payment of $50, made on October 21st, 1879, he added said payment of $50 to the amount due him, and under this error,- which was unperceived by Defendant, on a final settlement between them, on Oetober 26, 1879, it appeared that a balance of $49.85 was due by the Defendant to Plaintiff, for which the single bill entered up in this suit was given. Whereas, in point of fact by reason of the wrongful charge as aforesaid, Defendant had over-paid Plaintiff by the sum of $50.15, and in this suit claimed a certificate for that amount and interest, and also a few dollars for some of the articles purchased which had not been delivered. The jury found these facts for Defendant and gave him a certificate for $62.25, being amount of over-payment and interest, &c.
    After a motion for a rule for a new trial was refused, Defendant paid the jury fee, and judgment was entered on the verdict; after this, the rule for a new trial was granted, and the certificate of the jury in favor of Defendant was ordered to be treated as a nullity : in the following opinion, per :
    Elcock, J.
    A judgment entered upon what is called a judgment note was subsequently opened and an issue awarded to determine what, if anything, was due upon the same. The trial developed the fact that the Plaintiff was overpaid, and a verdict was found in favor of defendant, with a certificate in his favor for $62.25, the awarding of which is now assigned as error.
    Under the Defalcation Act of 1705, which alone regulates the subject, a certificate in favor of the Defendant can only be had where the Plaintiff commences an action. That a judgment confessed by note or warrant of attorney is not an action within the meaning of the Act of Assembly is apparent. There was no process for the Defendant to appear to answer any action, nor was there a demand which required the solution in damage, or the settlement of any principle by. any tribunal. It passed into judgment simply by the action of the parties. When it was opened by the Court, it Avas merely to determine the amount for -which execution could issue, and the judgment stood, no matter AAdiat the result of the issue might be. This view is expressed in the opinion of Chief Justice Gibson, in Galluy v. Reynolds, 8 Watts, 426. As the Plaintiff could not recover anything in excess of the amount of his judgment, so the Defendant cannot claim anything save the payment of the same amount. No right of recovery was reserved to him by his act of confession, nor did he clothe the Court with any power to enter a decree against • him for any sum in excess of the amount named. His confession stands as it is written, and as he was not called into .Court to answer by its command, so the Court’s action is restricted.
    Nor does it change the principle that the Defendant filed Ms plea of set-off, and that the issue on it was raised and tried. The issue was simply a feigned one, and required on formal declaration, and hence no formal pleas. It was governed solely by the record as it existed, and by it the verdict must abide.
    The verdict will therefore stand as recorded, but so much thereof as awards a certificate in favor of the Defendant will be treated as a nullity, and the rule for a new trial is discharged.
    McCaughey then took a writ of error, complaining of the action of the Court in treating the certificate in his favor as a nullity.
    John Samuel, Esq., for Plaintiff in error.
    P. E. Carroll, Esq., contra.
   The Supreme Court affirmed the judgment of the Common Pleas on January 31st., 1881, in the following opinion :

Per Curiam :

That when a judgment is opened generally, it it not competent for the jury to certify or give a verdict for a balance in favor of the defendant has been already decided by this Court in Beaty vs. Bordwell, 91 Pa., 441; upon the authority of which this judgment is affirmed.

Judgment affirmed.  