
    [Philadelphia,
    January 30,1836.]
    HENRY against SIMS.
    IN ERROR.
    1. A judgment in a scire facias upon a mortgage, for the amount of the money due upon the mortgage, is a judgment for a “debt or damages,” within tho 14th section of the act of 13th April, 1791; which provides for entering satisfaction of such judgment, and gives a penalty to the party aggrieved by the refusal to enter satisfaction.
    2. It is not necessary that the party suing for such penalty, should prove that he has sustained actual damage by the refusal to enter satisfaction; The jury may take into consideration all the circumstances -by which the party has suffered vexation and inconvenience.
    This was a writ of eRroR to the District Court for the city and county of Philadelphia, to remove the record of an action of debt, brought in that court by Joseph Sims against Alexander Henry, to recover the pénalty given by the 14th section of the act of 13th April, 1791, 'for not entering satisfaction of a judgment in the said court.
    The circumstances were as follows:—
    On the 23d of December, 1820, Joseph Sims executed a mortgage of certain property in the county of Philadelphia, to Alexander Henry, to secure the payment of § 10,000 with interest, money lent by Alexander Henry to Joseph Sims.
    In the spring of the year 1823, Joseph Sims, being then insolvent, executed an assignment of all his property for the benefit of his ereÜitors; whereby all his interest, in the premises mortgaged to Alexander Henry, passed to his assignees.
    The interest on the mortgage being no longer páid, Alexander Henry issued a scire facias thereon, to the June Térm of the said court; whereupon judgment was entered by agreement, bn the 23d day of June, in the same year, in favour of the plaintiff, for f 10,600; the amount of the mortgage with one year’s interest thereon. On this judgment execution was issued and satisfaction obtained.
    In the month of March, 1828, Caleb Carmalt, as the agent of Joseph Sims, applied to Alexander Henry to enter satisfaction on the record of the said judgment, which not being done within eighty days, Joseph Sims brought this action, and claimed f 5,300, one half the amount of the said judgment, as a penalty for not entering satisfaction thereon, within eighty days after the request so to do.
    Issue being joined upon the plea of nil debet, &c. the cause carné on for trial in the District Court, on the 10th of May, 1833, when, the plaintiff gave in evidence the following entries on the docket of the same court of June Term. 1823, viz.:
    “ Alexander Henry,
    348 . v. I Scire facia's sur
    
    Joseph Sims, with notice to Joseph B. Sims, Ben-'j> Mortgage, jamin Jones and Joseph Johnson, his assign- “made known.” ees and terre tenants. J
    23d June, 1823. By writing filed, it is agreed, that judgment be entered in favour of the plaintiff, for ten thousand six hundred dollars, to be entered on the 22d Junej 1823, as on an award of arbitrators regularly obtained and filed on that dayi
    June 23d, 1823. Judgment.
    27th August, 1828. This judgment is satisfied.
    Signed, Alexander Heníiy;”
    The plaintiff then read the deposition and cross-examination of Caleb Carmalt, as follows: “ Caleb Carmalt, a witness on behalf of the plaintiff, aged thirty-seven years and upwards, being duly affirmed, says; In the beginning or middle of February, 1828,1 was applied to by the plaintiff in the above case, to obtain for him about eight thousand dollars upon mortgage of lands in Philadelphia county. I made application to Thomas Yoight, and obtained a promisé from him, to let Mr. Sims have four thousand dollars, upon the office certificates proving satisfactory. I made the usual application to the different offices for certificates, and upon obtaining them, there appeared upon that from the District Court, a judgment obtained by Alexander Henry agaihst Joseph Sims, for ten thousand six hundred dollars. I showed the certificates to Joseph Sims, thé defendant in that action and plaintiff in this, who told me it was paid, and thought there must be some mistake, and that satisfactiori was surely entered. He sent me to his assignees for evidence of payment, and I got from Mr. B. Jones a statement to that effect. I then stated the circumstances to Voight, but he refused to lend the money, alleging that both Mr; Jones and Mr. Sims were to be considered as defendants, and he wanted something from the plaintiff, Alexander Henry. I then went with the certificate in my hand to Alexander Henry’s counting-house, and exhibiting the certificate and the statement of Mr. Jones, I stated the difficulties which had taken place in obtaining the loan and the impossibility of getting the money. He read the certificate, and he then said, that the statement of debt, interest, and costs, having been paid, was all perfectly correct: that he did not know why it was not entered: that the whole business was committed to the care of his counsel, William H. Tod, and that he (W. H. T.) must still attend to do what was necessary. I told him, that my object was to get satisfaction now, and that it would take him but a few minutes to go round to the office and enter satisfaction, if he knew the facts to be as represented, that the debt, interest, and costs were paid. He said he knew the business was all settled, but he would not meddle with it himself; I must go to Mr. Tod. I think there was a conversation took place on the subject of the satisfaction fee, in which I told him if it was not paid, I would pay it. Of this, however, I am not so certain as of the other parts of my deposition. I represented to him the circumstances in which Mr. Sims was then placed, in regard to his assignees, telling him there was a balance which the assignees insisted upon having, before they would execute a re-assignment; After considerable further effort with Alexander Henry; I went to W. H. Tod, and stated what had taken place, and that I had beeti sent to him by Alexander Henry, and made the same representation to him and wished him to do what was requisite in that case; He said Mr. Henry must enter satisfaction ; took down his docket or receipt book and showed me that not only was the judgment paid; but that he had also paid it over to Alexander Henry. He then told me to go to Henry and tell him to enter satisfaction. I went back the same day to Voight, and stated their representations to him, but he positively refused to let Joseph Sims have the money. He said; he thought they could have no difficulty in entering satisfaction, if it was as it was represented. The next day, I think, I took Voight with me to the prothonotary’s office, and showed him that it was a judgment on a scire facias. He was still uneasy and unwilling; and said he could not understand why they would not enter satisfaction; I then went again to Alexander Henry’s counting-house and missed seeing him, but saw his clerk, who took down the ledger, and showed me that the account was balanced. I went a third time to Alexander Henry. I saw him, and the same kind of conversation took place as before. I also told him what W. H. Tod said, and what Voight said. Alexander Henry said in reply, that he would not have any thing to do with it, and that Mr. Tod must do it himselfi I then left the counting-house and have never seen him since upon that subject. With very great difficulty, I at length finally succeeded in getting the money.”
    On his cross-examination the witness said;
    “ That at his first interview with Alexander Henry, as stated in his deposition in chief, he thinks George Williams was in the counting-house of Alexander Plenry. He speaks with confidence when he says so. He sat reading a newspaper. He does not recollect any other person then to have been present with Mr. Henry, but his clerk. It was the same man who afterwards took dovjn the ledger and showed the deponent Mr. Sims’ account, as stated above. He is under the impression, that on his interview with Mr. William H. Tod, Mr. Tod stated that John Wharton was the purchaser, but cannot say what reasons he gave for not having entered satisfaction. On the deponent’s second interview with Mr. Henry, he did not 'státé what W. H. Tod had assigned as his reason for not entering satisfaction on the docket, of the judgment in the case of Henry v. Sims. At the second interview with Mr. Henry, the deponent does hot believe that there was any body there but Mr. Henry. He is under the impression .that at 'the first interview, there was another person passing in arid out of Mr. Henry’s counting-house, but can,not speak positively. But at the second, he does not think there was any person passed in or out of the counting-house. The deponent cannot say whether Mr. Tod did or did not certify on the face of the certificate of judgments, that the one in question was satisfied. But the certificate is in the hands of Mr. Voight. The deponent .does not know that Mr. Sims sustained any actual loss from the circumstances he has detailed in evidence, and Mr. Henry’s declining to enter satisfaction on the record of the judgment, but a little delay, as the deponent afterwards procured the money from Mr. Voight, without any alteration of the circumstances of the case.
    The delay, the deponent should think, was hardly a week. He thinks he told Mr. Tod, that Mr. Henry said, that he, W. H. Tod, should enter satisfaction, but he never went but once to W. H. Tod’s office on the subject. The mortgage on- which the. judgment was entered, was satisfied on the record at the recorder’s office; but the judgment thereon in the prothonotary’s office was not satisfied on record. The deponent is positive, that he never tendered to Mr. Henry any money for the fee for entering satisfaction.”
    .The plaintiff then read a certificate from the prothonotary of the Court of Common Pleas for the county of Philadelphia, certifying that he found no unsatisfied judgment against Joseph Sims; which was dated 21st February, 1828, also a certificate from the prothonotary of the District Court, for the city and county of Philadelphia, in which he certified that on examination of the judgment docket ■of the said court, from December Term, one thousand eight bundred and twenty-two, to the nineteenth day of February, one thousand eight hundred and twenty-eight, he found the following judgments .entered within that period against Joseph Sims.
    “ Alexander Henry v. Jos. Sims, J. 23. 348 Tod.&emdash;June 23, 1823. $ 10,600.
    Philadelphia Bank v. Same, J. 24. 444. J. M. Read.&emdash;June 10,1824. $2,359 63.
    Also find two against Joseph B. Sims. Joseph Johnston v. Jos. Sims, J. 29. 448. J. S. Smith.&emdash;July 1,1829. $ 6261 91.
    Jno, Coulter v. Same, M. 28. 300. Cadwalader.&emdash;Sept. 8, 1830; from the above date to the 17th December, 1830, 50-100 paid, S. M. S. Certified pro prothonotary.
    tisfied. The judgment above stated by Jos.
    tisfied. Feb. 21, 1828. Dec. 18, 1830, On the back of which certificate wi The mortgage on which the last j Signed,
    “ Alexander Henry sued out his n)1 0 judgment thereon&emdash;and the whole amount, debt, interest, and costs Also, have been paid. Signe¡d, B. Jones.”
    “ The judgment being on a scire facias, is not a lien upon the remaining land of Joseph. Sims&emdash;Alexander H.enry told me this day it was all paid. Also, Signed, Caleb Carmalt.” 2d Mo. 22, 1828.
    Also, “M. 28. 300&emdash;Sims v. Coulter, is a" judgment for costs only. Signed, Dec. 18, 1830. Jomir Cadwalader, for Def.”
    tie also offered in evidence a certificate from the prothonotary of the Supreme Court, certifying that on examining the judgment docket of the Supreme Court for the Eastern district of Pennsylvania, for five years prior to the eighteenth day of February, A. D. 1.828, he found the following unsatisfied judgments against Joseph Sims.
    "Hannah Chancellor v. Joseph Sims-Warrant of Attorncy, 94, p.p. 28. same 1823. Judgment. for $ 20,000."
    
      pn the back of which was endorsed,
    “ The mortgage accompanying the within judgment is satisfied.
    Signed,
    Feb. 21, 1828. , Caleb Carmalt.”
    The plaintiff then offered in evidence the docket of sheriff DougJas, for June Term, 1824, he then being sheriff of the city and county of Philadelphia, where appeared the following entries:— Alexander Henry, v.
    
    Joseph Sirqs, with notice to Joseph B. Sims, Benjamin Jones, and Joseph Johnson, his assignees and terre tenants. f March 9, 1824.
    22 March, 1824, sold No. 1, to Benjamin Tilghman, for $ 9,100 No. 2, to John-Wharton, for 2,200
    By cash, # 2,200.
    Received April 24, 1824, of Sheriff Douglas, #2085 61-100 on account of the principal debt in this case, also seven dollars and seventy-five cents, attorney’s writ, sheriff and levari facias. Total #2,093 36-100. Signed,
    William H. Tod, Att. for A. Henry.”
    Then followed a statement of the amount of the judgment, and pf several payments on account, with a calculation of interest, concluding as follows:
    “ I do hereby acknowledge that the above debt is settled by John Wharton, Esq. with the plaintiff, and the sheriff is exonerated from ^ny responsibility therefor.
    Signed, William H. Tod, for pl’ff.”
    After which came a bill of the costs, including sheriff’s poundage, costs of sale, and the fee for entering satisfaction, and a receipt by the prothonotary of the District Court for his costs.
    The plaintiff then called Thomas Voight as a witness on his part, who testified as follows: — “I was applied to by Caleb Carmalt for the loan of some money to Joseph Sims; he was acting as Mr. Sims’ pgent. I cannot recollect the date of the application, nor the date of the mortgage. It was in the fall; there was considerable difficulty as concerned the searches, more particularly as regarded a judgment by Mr. Henry. There had been no satisfaction entered on the judgment for # 10,600; Mr. Carmalt was acting as agent for me also, be was the person I always employed — I refused to lend the money until I was satisfied. Mr. Sims called and Mr. Carmalt called together occasionally on me. The certificate from the District Court of Philadelphia county,, is the certificate I refer to; on that certificate I let him have the money. The delay might probably be ten days or two weeks; the date of the mortgage must have been about the date of the searches in the District Court. The date of the mortgage was 19th February, 1828. Don’t recollect whether it bore date from the time the money was actually paid over, or from the time I agreed to lend it.”
    The plaintiff then produced the appearance docket of the said District Court,.for the term of September, 1828, wherein it appeared, that the original writ of summons in this case, issued 28th of June, 1828, returnable to said term of September.
    The plaintiff having closed his testimony, the defendant, by his counsel, demurred to the same, alleging it to be insufficient in law, to maintain the issue.
    The plaintiff’s counsel refused to join in demurrer without the direction of the court, and contended, that if the court gave such direction, the defendant should be put under terms in relation to the admission on record of certain facts. This being objected to on the part of the defendant, the point Was argued by the counsel on both sides.
    Whereupon the court directed the plaintiff to join in the demurrer, upon the defendant’s admitting on the record, the following circumstances, it appearing to the court, that the jury might fairly find, that the evidence legitimately conduced to prove them.
    “ First, that Caleb Carmalt had authority from the plaintiff, to request the defendant to enter satisfaction of the judgment in question. '
    Second, that the request was made accordingly.
    Third, that a conversation did take place on the subject of the-satisfaction fee, in which Caleb Carmalt told the defendant that if it was not paid, he, Carmalt, would pay it, and not merely that Caleb Carmalt thought there was such a conversation.”
    The defendant’s counsel (objecting, however, to the right of the court to make such direction) made the admission on record accordingly. Whereupon the plaintiff’s counsel joined in demurrer; and the jury were discharged.
    On this demurrer, the court below, after argument, gave judgment for Joseph Sims, the plaintiff below.
    A writ of inquiry of damages was thereupon awarded, and a jury summoned, before whom the parties appeared, and the case was tried ; but the jury not agreeing upon any inquisition, was discharged by the sheriff.
    Another writ of inquiry was thereupon issued, and another jury summoned; who assessed the damages at three thousand dollars.
    This inquisition was set aside by the District Court, on the ground that the damages were excessive; and an alias writ of inquiry issued; whereupon the jury assessed the damages at two thousand five -hundred dollars.
    
      The defendant then moved the court below for a rule to show cause why this second inquisition should not be set aside, for the following reasons.
    “ 1. Because the jury had found more than nominal damages, although the plaintiff had given no evidence of any damage whatbver.
    2. Because the damages were excessive.”
    This rule was refused by the court, and the defendant took nothing by his motion.
    Judgment was accordingly entered on this inquisition in favour bf the plaintiff below, for the sum of twenty-five hundred dollars.
    The defendant having removed the record to this court, assigned the following specifications of error.
    “ 1. The court below erred in point of law, in giving judgment for the plaintiff below, upon the demurrer to evidence in this case, when the judgment should have been for the defendant.
    2. The court below erred in point of law, in giving judgment for the plaintiff below for more than nominal damages, although the plaintiff gave no evidence of any damage whatever.”
    Mr. Bayard, for the plaintiff in error.
    1. The act of 1791, was not intended to provide for such a case as the present. It is obviously and properly confined to judgments for the recovery of money. The penalty, which is to be not more than half the “ debt or damages,” for which the judgment was given, proves this. There are several species of judgments which could not have been within the contemplation of the legislature. A judgment in partition, in dower, and other real actions, certainly cannot be satisfied, in the legal sense, yet such judgments are docketted, and appear on the certificates. A scire facias upon a mortgage is a proceeding peculiar to Pennsylvania. It was given by the act of 1705, and supplies the place of the Bill in Equity. It is a proceeding in rem, merely. The 6th section of the act of 1705, directs what judgment shall be entered. It is a judgment specifically de tenis. The practice is to enter judgment merely. It is true; that in this case, the agreement was, that, judgment should be entered for 10,600 dollars, as on an award of arbitrators; but this must be taken with reference to the scire facias, and the act of 1705; and the short minutes of our dockets are'only the materials from which the record is constructed, Mercer v. Watson, (1 Watts,, 358.) It is said that this judgment appeared from the certificate to be a general judgment. So would other judgments whifeh are clearly not within the act. A slight examination of the record would show that it was not a lien beyond the mortgaged premises. Here, there was the return of the sheriff, showing that the property mortgaged had been sold and the plaintiff satisfied. The act of 28th March,. 1715, requires the mortgagee to enter satisfaction of his mortgage in the Recorder’s Office, within three months after notice, under a penalty not exceeding the mortgage money. In this case, satisfaction had been entered on the mortgage. The certificates produced by the plaintiff, show the practice and understanding of scriveners on this point.
    2. The plaintiff, in this case, was not within the act of 1791. He had made an assignment of all his estate; and there had been a sale by the sheriff, under a levari facias. If any one had a right to complain, it was the purchaser at the sheriff’s sale. There ought to have been some evidence to show that the plaintiff was damnified. The act of 31st March, 1823, § 2, which is in pari materia, speaks of the person damnified.
    3. The judgment ought to have been entered for nominal damages only. The evidence shows that it was not a case for more. [Rogers, J. How can we go into the evidence before the jury of inquiry! May they not have had other evidence than that set forth in the demurrer!] I apprehend not. The only way to correct mistakes of the inquest, is by application to the court from which the writ of inquiry issues; and a party is entitled to a revision of the opinion of that court, by writ of error.
    Mr. D. P. Brown, and Mr. Tilghman, for the defendant in error.
    The only question for the court upon this writ of error is, whether the judgment in the case of Henry v. Sims, was a judgment for debt or damages, within the act of 1791. The verdicts of two juries in the court below, have settled the question of inconvenience, and show that the plaintiff has sustained damage. This court cannot enter into the consideration of inferences from matters of fact, which may be drawn by a jury. The record shows that there was a judgment for money against Mr. Sims. The plaintiff treated it as a judgment for money, and by means of so considering it, obtained compound interest, according to the practice in computing interest upon a scire facias. If Mr. Sims had appealed from an award of arbitrators in this scire facias, he would have been required to give security in double the amount of the judgment. This shows that it was a judgment for money. And such has been from the earliest times, the practice in entering judgments up on a scire facias on a mortgage. A mortgage is commonly given to secure payment of a bond. If judgment be entered upon the bond, does the entry of satisfaction of such judgment relieve the mortgagee from the penalty for not entering satisfaction on the mortgage 1 The circumstance that the mortgage in this case, was satisfied, is of no importance, since the act of 1791 was intended to protect defendants from “ vexation and inconveniencewffiich they experience from the existence of unsatisfied liens; and strangers cannot be expected to look into the consideration of judgments.
    Mr. Cliauncey, in reply.
    The act of 1791, was intended to relieve against real inconve-. niénce and prevent substantial injury, not to authorize a suit for an imaginary or trifling evil. The preamble shows the intention, when it speaks of the “ subsequent purchasers of real property.” [Hustokt, J. Suppose a man have no real estate; would he not be within the actlj I presume he would, but it must be such a judgment as would import a debt and affect his credit.
    1. A judgment in a scire facias on a mortgage, is not to be considered any thing more than an order of sale of the mortgaged premises. If it were a judgment for “ debt or damages” within the act of 1791, it would be a lien on other real estate of the defendant; which it certainly is not. It is not the basis of any subsequent proceeding. [Hustok, J. If the judgment upon this kind of scire facias is more than a year old, is it not the practice to issue a scire facias quare executio non ?] It is the practice, but I do not admit it to be necessary. At all events, it cannot enlarge the sphere of the original judgment.
    
      2. The assignees of Mr. Sims were the real defendants in the scire facias, since they confessed the judgment. The penalty cannot be given to two or more persons distinctly. Either the assignees or the purchaser at sheriff sale, must be considered as the party aggrieved, if any one was injured. The purchaser at the sheriff’s sale may have a right to keep the judgment alive, as a link in his chain of title. Suppose there are two persons of the same name, the index of judgments will not distinguish between them. This shows the necessity of looking into the record. The scruples of a lender of money, who did not choose to' search the record, could not have been within the contemplation of the legislature. The record in this case shows, that the fee for entering satisfaction, was paid to the prothonotary.
    3. This is not an arbitrary penalty. By the words of the law it is to be proportioned to the injury sustained. Here, it appears, that Mr. Sims scarcely knew of the difficulty. All that is shown is, that the scrivener made two or three additional calls upon Mr. Henry, It is true, that generally, a court of error -will not look into the proceedings of a jury in the court below. Here, however, .the evidence was all on paper. It was not like the case of a judgment by .default. The inquest had no more authority to receive additional .evidence, than the jury at the bar, if they had been required to assess the damages. The court below decided that the jury might give more than nominal damages; although the plaintiff had giveq .no evidence of any damage; and this appears upon the record.
   The opinion of the court was delivered by

Huston, J.

Joseph Sims was plaintiff below, aud brought a suit against Alexander Henry, on the 14th section of the act of 15th of April, 1791, which is in these words; “ Whereas, it frequently happens, that judgments long remain unsatisfied on record, although the moneys forwhich those judgments have been rendered, are justly discharged, whereby defendants, in such cases, as well as the subsequent purchasers of real property suffer much vexation and inconve-. nience; Be it enacted, that each and every person having received satisfaction for his or their debt or damages, recovered by judgment in any court of record within this commonwealth, shall at the request of the defendant or defendants in the action, or of his, her, or their legal representatives, or other person concerned in interest therein, on payment of the costs of suit, and on tender of his reasonable charges and the costs of office for entering satisfaction, within eighty days after such request made, enter satisfaction of the judgment in the office of the prothonotary'of the court, where such judgment was or shall be entered; which shall for ever thereafter discharge, defeat, and release the same: and if such person having received such satisfaction as aforesaid, by himself or his attorney, shall not within eighty days after request and payment of the costs of suit, and tender of .charges as aforesaid, repair to the said office, and there enter satisfaction as aforesaid, he, she, or they, neglecting or refusing so to do, shall forfeit and pay unto the party,or parties aggrieved any sum of money not exceeding one half of the debt or damages so adjudged and recovered, to be sued for and demanded, by the defendant or persons damnified, in like manner as other debts are now recoverable by law in this commonwealth.”

Joseph Sims had given to Alexander Henry, a mortgage to secure the payment of 10,000 dollars and interest. Alexander Henry had sued out a scire facias on this mortgage, and on the 23d of June, 1823, the defendant agreed to a judgment, as if on a report of .arbitrators, for 10,600 dollars, and judgment thereon was on that day entered on the docket; but entered, as usual in this state, by setting down the date, and writing the word judgment. The defendant below gave no evidence; the jury gave a verdict for 2500 .dollars; a former jury had given 8,000 dollars, which the court had set aside.

Mr. Henry had issued a levari facias, and sold the property mortgaged, or a part of it, (and it did not appear which,) and had received the whole of his debt and interest; and the costs of all the offices, including the prothonotavy’s fee on entering satisfaction, had been paid out of the proceeds of the sale. Both parties lived in this city.

Two matters of defence were relied on. 1. That the judgment which was plainly entered in the usual form on the docket, was not such a judgment as is contemplated by the act above cited; and a distinction was shown to exist in England, between a judgment in a common adversary suit for debt or damages, which is that the plaintiff shall recover, &c. (quod recuperet) and a judgment on a scire facias, which is, that plaintiff shall have execution, &c. Admit this,to be so in England, whore, perhaps, no scire facias ever issues except on a judgment or recognizance of record in the court which issues the scirefacias. But here, we issue in the Common Pleas, a scire facias on a recognizance taken in the Quarter Sessions or other criminal court; on a recognizance taken in the Orphans’ Court; on the recognizance of a sheriff or coroner, and sureties taken and recorded in the recorder’s office, and on a mortgage and many other matters. And long and uninterrupted usage has sanctioned, or perhaps the nature of the proceeding required, that the judgment on the scire facias should be quod recuperet. An old act of Assembly gives interest on a judgment in this state, from the time of entering judgment; and, perhaps, from that reason, on a scirefacias to show cause why an execution should not issue on a judgment a year old, the judgment here is, that plaintiff recovers his debt and interest; and the year having elapsed, a second scire facias issues, to show cause why execution should not issue on the judgment obtained on the first scire facias, and so on; the principal and interest being joined to make the amount of each new judgment. I brought this.matter before the Supreme Court, in the case of Fries against Watson, (5 Binn. 226,) where the plaintiff by issuing a scire facias every year, for a long time, had, in fact, been getting interest on interest. Judge Tilghman was so struck with the oppression of that case, that it was held under advisement; but the result was that the practice, though directly contrary to the law and practice in England, was too old, and too well established to be altered, except by the legislature.

But the 6th section of the act of 1705, was read and relied on. That act prescribes the mode of proceeding to collect the money due on a mortgage; a scire facias is to issue, summoning the defendant to appear and show cause, if any he hath, wdiy the mortgaged premises should not be seized and taken in execution, to pay the mortgage money with interest. It then proceeds to allow of defence by the mortgagor and pleas, and that he may show' that'the .whole or part of the debt is paid, &c. &c.; or if he does not appear, an inquest in certain cases is to ascertain the amount due, and the definitive judgment, as well as all other judgments to be given upon .such scire facias, shall be entered, that the plaintiff, in such scire facias shall have execution by levari facias, directed to the proper ' officerby virtue of which the mortgaged premises arc to be sold, &c.; and it was strenuously contended, that this act was express, that the judgment should be only that execution should issue. 1 do not admit this construction, and if I did, the consequence contended for would not follow. The act does not purport to give the terms of the judgment, except in one particular; it designates the kind of execution, viz. a levari facias. It does not say it shall be for the-sum found by the jury; it does not even state that-the judgment or the execution shall affect the lands alone which were mortgaged. The officer is directed to take and expose to sale the mortgaged premises; and the judgment must be to levy the debt of those lands; but this arises from the nature of the proceedings; it is not directed by the act. The words “ definitive judgment, as well as all other judgments,” refer, I suppose, to the judgment first had in court, and to judgment on a scire facias to revive that judgment, if no execution has issued on it within a year. It is admitted that the constant practice has been to issue a scire facias to revive the first judgment, where execution has not issued within a year; and that the amount of the first judgment and interest from its date, added together, make the amount of a second judgment, and so on as often as a scire facias issues,

A judgment may be quocl recuperet, and yet be, that it be levied from particular lands; as a judgment against a devisee of lands devised, subject to the payment of a particular sum. So one of several heirs takes land at a valuation in the Orphans’ Court, and enters into recognizance to pay money to another heir, and then sells the lands; and debt is brought or scire facias, on the recognizance, with notice to the terre tenant; on such suit the judgment is, as to the terre te? nant, to be levied of the lands bound by the recognizance. Yet, iri both these cases, there is a judgment within the letter and spirit, too; of the act first cited; if the amount due on such judgment is paid; and after request the plaintiff does not enter satisfaction on such judgment, I can find no reason why he is not liable to the penalty. “ Each and every person having received satisfaction for his or their'debt or damages recovered b.y any judgment in any court ofrecm'd,” would seem to take in every judgment on which any execution could issue or which bound any land; and if it does not include every judgment in every court of record, which can be satisfied, and has beeii satisfied by payment of money, I do not see how it can include any judgment. It is not left to. this or any other court to discriminate. There may be a definitive judgment on a scire facias on a mortgage ; and the act in question has no restriction to the peculiar process by which the judgment was brought into court; nor to whether it binds all lands of the defendant, or only part of his lands; or whether he has any lands to be bound by it, or not. I then suppose; that the practice, as far back as we have information of the mode of entering judgment on a scire facias on a mortgage, though questionable at first, is like the judgment on a scire facias to show causé why an execution should riot issue, too old and too well established to be now altered; and that a judgment that execution issue, is as much within the letter and spirit of the act first cited, as a judgment quod recuperet. It is a judgment which binds lands, on which • an execution may issue for debt or damages; and if the debt or damages are paid, and satisfaction is not entered on request, the party may incur the penalty of the law.

The other objection urged, was to the damages. It is so well settled, that a court of error cannot reverse on that account, that it might seem enough to say that the only remedy for this was by a motion for a new trial; but it was insisted that there may be cases where the court are bound to tell a jury that only nominal damages can be given, and that this is one of those cases. I will observe that the court here were not asked to tell the jury so. There would be no end of reversing judgments, if we should reverse because the court did not, in every case, lay down the law on every point which can be made in a cause, although the point was not brought to their consideration. But I doubt whether there is any general rule, which, under all circumstances, will authorize a court to tell a jury they must find only nominal damages. When an act is done which really injures no one, and is done for the purpose of trying a right, nominal damages are generally directed; but if, from the evidence, the jury believe, that though nominally, to try a right, yet in fact it was done maliciously, or vexatiously, or insolently, with intention to injure at least the feelings of the other party; they may go beyond nominal damages; and if the court set aside one verdict and a second jury find in the same manner, I would not advise a judge to set it aside, on the same account; for it is the legitimate province of a jury to find not only that a fact was done, but what were really the motives and manner of doing it. There is nothing in the act in question from which it can be even inferred that the amount of the verdict should depend on the damages actually sustained. The object is to compel a man to do a plain act of justice, the omission to do which may be vexatious or injurious to another. There is a description of those who may sue, in three several clauses of the act; first, the defendant or his representatives; next, the party grieved; and then, the defendant in the judgment, or the party damnified, and they all mean the same thing; the defendant, or party damnified, cannot, in this place, be tortured to mean that no person can sue and recover unless he has sustained actual damage. I do not say, that if actual damage has been sustained, it may not form a proper subject of consideration with a jury; but an insolvent person may sue and recover; a man who never owned any lands may sue and recover; and the obstinacy of the plaintiff in the judgment in refusing to enter satisfaction; the manner of refusing; the hardship of the refusal; in short, everything which can and does make acts the subject of praise or censure; as of honesty or dishonesty, of kindness or cruelty, may enter into the consideration of the jury; and I doubt whether there is any case under this act, where the money and costs are admitted to be paid, and where the plaintiff repeatedlyjfrefuses to enter satisfaction without excuse, • in which a court-, could tell a jury, they must find .only nominal damages.'

Judgment-affirmed.  