
    Oberholtzer v. Hunsberger.
    A common law action will not lie to recover damages for failure to enter satisfaction of a judgment after payment. The Act of April 13,1791, ‘i 14, affords an exclusive remedy.
    
      Where a demurrer to a declaration is filed, after a rule of reference is entered, but before arbitrators are chosen, the case is not out of court, and judgment may be entered on the demurrer, although the arbitrators were subsequently-chosen.
    Feb. 5, 1889.
    Error, No. 164, July T. 1888, to C. P. Montgomery Co., to review a judgment on a demurrer in favor of the defendant in an action of trespass, by Joseph H. Oberholtzer against. Anna Hunsberger, administratrix of Peter Hunsberger, deceased, at, June T. 1888, No. 10. Williams, J., absent.
    On Jan. 24, 1888, the plaintiff filed his declaration, which was as follows:
    “Anna Hunsberger, administratrix of the goods and chattels, rights and credits, which were of Peter Hunsberger, late of said county, deceased, was summoned to answer Joseph H. Oberholtzer of a plea of trespass, for this, that one Peter Hunsberger in his lifetime held and had upon the record of said court a judgment of $1,000, entered March 28th, 1885, in Judgment Docket J. 1, page 339, against the plaintiff, Joseph H. Oberholtzer; that on the 13th of October, 1887, the death of said Peter Hunsberger was suggested on the record of said judgment, and said Anna Hunsberger, administratrix, substituted as plaintiff in said judgment, and the said AnnaHunsberger, administratrix, aforesaid, the said 13th day of October, 1887, issued a fi. fa. out of said court on said judgment, returnable to Dec. T. 1887, No. 43, as is shown in Execution Docket 18, page-278, and although the said judgment, execution, costs and fees have long since been paid by said Joseph H. Oberholtzer to said Anna Hunsberger, as administratrix as aforesaid, she has hitherto neglected and refused to have satisfaction entered on the record of said judgment or even to have said fi. fa. returned into the prothonotary’s office, showing that the money had been paid to satisfy the-same in full; to the great injury of this plaintiff, three thousand dollars ; therefore he brings suit.”
    On the same day, the plaintiff entered a rule of reference, arbitrators to be chosen on Feb. 11, 1888, on which day they were-duly chosen.
    On Jan. 27, the defendant entered a demurrer, filing the-following reasons:
    “1. The declaration is in trespass, whereas, the cause of action disclosed in the first complaint is an action of debt or assumpsit.. 2. Plaintiff’s declaration does not disclose that he has complied with the provisions of the Act of April 13, 1791, § 14, Purd., page 951,. pi. 34, under which alone he could recover. 3. Plaintiff’s second cause of complaint discloses no injury that is actionable. 4. If any injury has been sustained under plaintiff’s second cause of complaint, his remedy should be against the sheriff, and not against the defendant in the case. 5. Plaintiff has wrongfully joined in his declaration causes of assumpsit and of trespass, which cannot lawfully be done. 6. Plaintiff never did and does not aver that he made a request for satisfaction eighty days before suit brought as. required by Act of April 13, 1791, § 14.”
    
      There were no further pleadings. The court entered judgment for the defendant, on the demurrer, in the following opinion, by "Weand, J.:
    
      “ This case comes before us as a demurrer to plaintiffs declaration and was argued by counsel for plaintiff and defendant. The suit is in trespass to recover damages for failure to enter satisfaction of a judgment after payment. It is conceded by plaintiff’s counsel that it is a common law action and not brought under the provisions of the Act of April 13, 1791, § 14, Pur. 951, which provides a penalty for a refusal to enter satisfaction. The Act of March 21, 1806, § 13, 4 Sm. L. 332; Pur. § 74, provides that £ In all cases where a remedy is provided or duty enjoined or anything directed to be done by any Act or Acts of Assembly of this commonwealth, the directions of said Act shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such Act or Acts into effect.’ This suit, therefore, is in clear violation of this Act and cannot be maintained. The demurrer was filed January 27, 1888, at which time the arbitrators had not been chosen; the case, therefore, was not out of court. Hoffman v. Locke, 19 Pa. 57. And now, June 4, 1888, judgment is entered in favor of defendant on the demurrer.”
    July 10, 1888, plaintiff excepts and bill sealed.
    June 22, 1888, the writ of error was taken.
    
      The assignments of error specified the action of the court, 1, in deciding that this action cannot be maintained; 2, in deciding that the case was not out of court and in the jurisdiction of the arbitrators; 3, in sustaining the defendant’s demurrer and in entering judgment thereon against the plaintiff.
    
      Geo. N. Corson, for plaintiff in error.
    After a rule of reference, the case was out of court. The dictum of Black, C. J., in Hoffman v. Locke, 19 Pa. 57, is not true as a rule of law. Royer v. Myers, 15 Pa. 89; Blady v. McNamara, 9 Watts, 194; Horn v. Roberts, 1 Ash. 45; Camp v. Bank, 10 Watts, 133; Bank v. Fisher, 1 Rawle, 347.
    Where arbitrators are mutually chosen under the compulsory arbitration law, it is like an agreement to submit, and is irrevocable. White v. Davis, 14 W. N. C. 59.
    The demurrer should be last disposed of, not first; the eourt should postpone the determination of the issues of law until the issues of fact are found by a jury. Marseilles v. Kenton, 17 Pa. 248; 1 T. & H. 423; Barbey’s Ap., 45 Leg. Int. 298, Aug. 3, 1888.
    There was no joinder of issue on the demurrer and there was no issue before the court.
    If the declaration be defective, the remedy is by appeal. Waage v. Weiser, 5 Wh. 307; Orlady v. McNamara, 9 Watts, 192; Royer v. Myers, 15 Pa. 89.
    By the Act of May 25, 1887, all “ special pleading is hereby abolished,” § 7. The only plea in the action of trespass shall be not guilty. The plaintiff’s declaration in each of said actions “shall consist of a concise statement of the plaintiff’s demand,” as provided for by § 5 of the Act of March 21, 1806. No formal declaration under this statute or at common law is necessary under the present Act of 1887, relating to pleadings and actions.
    In Leidy v. Proctor, 97 Pa. 487, the court held that a purchaser at sheriff’s sale of land might take possession of his property and assert his rights as soon as he obtained his deed, without waiting three months.
    But the demurrer ought not to be sustained because an action for immediate damages done, for the oppressive use of the record of a judgment by keeping it open and keeping an execution in the hands of the sheriff after the debt, interest and costs had been paid to plaintiff. Where the statute gives a remedy in affirmation for a matter actionable at common law, the party may sue at common law and waive his remedy by statute. Rees v. Emerick, 6 S. & R. 289, citing 2 Just. 200; 5 Johns. 175. See, also, Smith v. Shuler, 12 S. &. R. 240; Aycinena v. Peries, 6 W. & S. 257.
    
      Bickel & Hobson, not heard, for defendant in error.
    There is nothing before this court, as the entry of judgment was never excepted to, and the record shows no exception taken to any of the proceedings until after the case was removed to the supreme court. An exception must be taken at the time the act complained of was done, or no advantage can be taken thereof. McAdams v. Stillwell, 13 Pa. 90; R. R. v. Walling, 97 Pa. 55; Merkel v. Berks Co., 32 Smith, 505.
    The remedy for failure to satisfy a judgment is fully provided for by Act of April 13, 1791, § 14, Purd. 951, pi. 34. The remedy here given is an action of debt. Allen v. Conrad, 51 Pa. 487. The statutory remedy is exclusive. Spangler’s Ap., 64 Pa. 387; Brotzman’s Áp., 119 Pa. 645.
    Plaintiff’s remedy is to rule the sheriff to make return of writ. It is impossible to find a single case either against the sheriff or plaintiff in a writ for mere neglect of sheriff to make return of writ.
    The plaintiff has joined an action of debt and trespass in one suit and one declaration. In all works on pleading, this is not proper pleading. A count on the statute giving double damages for distraining where no rent is in arrears, cannot be joined in trover, in which only single damages are recoverable. Smith v. Meanor, 16 S. & R. 375. So, neither can an action under a statute making debt the remedy be joined with an action of trespass.
    That this case was not out of the jurisdiction of the court is clear not only from Hoffman v. Locke, 19 Pa. 57, cited in the opinion of the court, but also by Camp v. Bank of Owego, 10 Watts, 133; Landis v. Bigler, 1 Rawle, 347. Here the demurrer was filed three days after writ was issued.
    In Royer v. Meyers, and in Orlady v. McNamara, there was an award by arbitrators, and subsequently defendants asked to have awards set aside by reason of defects in tbe narrs. They are not on demurrer.
    The cases cited to prove that the demurrer should be last disposed of, prove nothing. In Marseilles v. Kenton, the supreme court say they will not reverse because the judge allowed the demurrer to await a trial, while Barbey’s Appeal is a case of equity practice. But this narr on its face shows that no judgment could be entered against defendant. He not only has a defective narr but 'a wrong action. He certainly cannot amend an action of trespass so as to make it debt.
    The Act of May 25, 1887, does not abolish the distinctiona between debt and trespass, but distinctly affirms the difference.
    The allegation that there was no joinder of issue on the? demurrer amounts to nothing. Hnder our Buies of Court, theprothonotary enters all replications as a matter of course. But here-the plaintiff went on with the ease without any objection, and never-raised the point until this time. This is a clear case of waiver.
    Feb. 5, 1889.
   Per Curiam,

Judgment affirmed.  