
    Share against Becker.
    Where a soie]y°uf matter of record, pie, «there is ^™1,' odre facias ^ouiTreassert the reckjdefby C<m" praying that ltmaybemspeoted by the Court. If it conclude to the country,, it is error*
    In Error.
    A SCIRE FACIAS issued in the Court of Common Pleas of Lancaster county, to which this was a writ of error, to revive a iudament obtained by Christian Becker, the defendant in error, against Henry Share, the plaintiff in error, and one Rank. The writ was returned, “ served” as to Share, and “ non est inventus” as to Rank. The following were the pleadings on the docket: — “ Henry Share pleads merit, with 'leave, &c. also, that no such award or judgmerit wets ever rendered or exists against him, as stated in the ahove scire facias. Replication ; that there is such an award; non solvit and issue.” A rule for trial was entered, and . 7 March 3d, 1820, the cause was tried, and a verdict given r i * *.’£C for .the plaintiff,
    Upon the trial, the defendant, Share, insisted in his defence, that the arbitrators, on whose award the judgment in the original suit was entered, were not legally appointed, because he had not received due notice. The plaintiff then offered to prove, that both the defendants had received due notice of the appointment of the arbitrators, and. of their meeting ; that both declared the demand was just; that they had no defence, and it was of no use to attend ; that Share afterwards solicited and procured James Duffey to enter bail for the money to obtain a stay of execution ;"that the bail entered himself as such on the credit of Henry Share; that shortly before or after the stay of execution had expired, Share applied to the plaintiff for further time, and promised to pay the interest, if the principal were suffered to stand, and that the plaintiff granted indulgence for a year or two longer.
    This evidence was objected to by the counsel for Share, but the Court overruled the objection, and sealed a bill of exceptions.
    
      The following charge was afterwards delivered to the jury:
    “ This is a scire facias to revive a judgment, which the plaintiff alleges, he obtained in a suit entered to March Term, 1815. There is no plea on behalf of Mathias Rank, but Henry Share has pleaded two pleas — 1st. Payment. 2dly. That no such award or judgment was rendered, or exists against him, as that'stated in the scire facias. Of the first plea there is no evidence. In support of the second, the defendant, Share, relies upon the position, that the appointment of the arbitrators was not legally made for want of proper notice. The Court are of opinion, upon the evidence which has been given of notice, that the appointment of the arbitrators was legally made ; that the award and judgment have been established upon due proof, and therefore that the verdict should be in favour of the plaintiff.”
    This opinion was filed of record at the request of the defendant’s counsel.
    Buchanan, for the plaintiff in error,
    being about to commence his argument, the Court expressed a wish first to hear
    Hopkins, for the defendant in error,
    who contended, that the defendant below having set ón a defence that he had no notice of the appointment of the arbitrators, had introduced matter of fact, which presented a proper subject of inquiry for a jury, and which rendered it necessary for the plaintiff, under his replication, to shew by parol evidence, that the judgment was properly obtained. Where a record alone is in dispute, it must be tried by the Court, but where, as in the present case, matter of fact is mingled with matter of law, in an issue of nul tiel record, it may be tried by a jury. In a scire facias on a recognisance of bail, where the replication introduces matter of fact, mixed with the record, in answer to matter of fact introduced by the plea, the issue may be to the country. Peter v. Stafford, Hob. 244. Sawyer’s Rep. 208. 3 Johns. Rep. 429. Zeigler v. Zeigler, 2 Serg. Rawle, 286. But if this was an issue not triable by a jury, their having given a verdict in favour of the plaintiff, is merely an act of supererogation. He has the judgment of the Court upon the record, which cannot be affected by a verdict being superadded. The defendant, moreover, has waved his right to object. He has joined in this issue, and consensu tollit errorem.
    
   The opinion of the Court was delivered by

Duncan J.

In an action of debt on a record, or scire facias, where the record is the foundation of the action, and not merely inducement, where its existence is put in issue, or a variance in its statement, nul tiel record is the proper plea. In a scire facias post annum et, diem, the defendant is called on to shew cause, why execution should not go on the judgment. It is a maxim of law, that there can be no averment in pleading against a record, though there may be against its operation, and therefore, no matter of defence can be pleaded, which existed anterior to the judgment. The second plea of the plaintiff in error, the defendant below, was mil tiel recorf informally and shortly drawn up. In practice, it is not usual to conclude pleas, either to the Court or country, but if a plaintiff requires it, the Court will direct them to be put in a legal form. If this had been required, the defendant would have concluded this plea to the Court, and the plaintiff below should have replied by re-asserting his record, and concluded with a prayer, that it might be viewed and inspected by the Court, and a day given to the parties, 1 Chitty Pl. 480. 571. 2 Chitty Pl. 625. 3 Bl. Com. 330, 331. Under the compulsory arbitration system, on the expiration of twenty days after report filed, without appeal, it becomes a judgment of the Court, on which a writ of error lies; but the Court of Common Pleas, on evidence of the want of notice of the appointment of arbitrators, or of their meeting, may set aside the judgment after twenty days, in the same manner as they would any fraudulent judgment entered in the Court, for if they did not possess this power, the whole system would be an outrage on common sense and common justice, for as the plaintiff might enter his rule for arbitration, as the law stood when this arbitration took place, on the commencement of the action, and before the service of the writ, a man without notice, and without a hearing, might be condemned to the amount of his whole estate. If the Court doubted the proof, they might direct an issue to try that fact, for it is an inherent power in every Court, to interpose on motion, and prevent the commission of.a fraud, or proceedings carried on, in the name, and by colour of their authority; for in supposition of law, the judgment is the judgment of the Court, and the party having no opportunity of- pleading it^, would be without redress, if the Court did not relieve on motion. Audita querela would lie in such case, and wherever that writ would lie, the Court would grant relief on motion. So universal is the course of granting summary relief, that it has driven out of use, and rendered obsolete, the writ of audita querela. This judgment, on the report of arbitrators, must be assimilated to a judgment by default, or by confession on a warrant of attorney; and as nothing which existed prior to the judgment, could be pleaded or given in evidence, in a scire facias on such judgments, so neither can it be done in a scire facias on a judgment on a report of arbitrators ; and as in the one case, the Court, after issuing a scire facias, would on a proper case made out, help the party to a defence in the original action, M'Farland v. Irwin, 8 Johns. 77, so in the present casej the defendant might, on the fact being made out, of the proceeding being without notice, and ex parte, by application to the Court of Common Pleas, have been relieved, if the allegation was true, that he had not notice, and was no party, either to the appointment of arbitrators or their meeting; though from the evidence, it is very apparent, that he has no cause of just-complaint on this ground. But, it would be a subversion of the whole order of pleading and of trial, to permit that which is purely matter of recorcl, to be tried otherwise than by inspection of the record. The second plea consisted solely of matter of the record, for the issuing of a writ, is matter of record, in the Court from which it issued, and if the defendant plead, that no such precept was sued out, the plaintiff must reply there was such record, and conclude , with praying, that the record may be inspected. Whitman v. Rook, Sayer's Rep. 299. Here the error was committed by the defendant in error, in talcing issue to the country, instead of . re-asserting the existence of the judgment; but, if any matter of fact as well as matter of law be put in issue, in that case the conclusion may be to the country. Peter v. Stafford, Hob. 244. Eshler v. Smallite, Payer, 268. So pn the plea of former recovery, which is part law and part fact, the plaintiff traverses the fact, and takes issue on the record, for a recovery in a former action, is only prima facie evidence, though apparently lor the same cause, that the subsequent demand has been tried; it is not conclusive, and must be submitted to the consideration of a jury. Van Vechten v. Croy, 2 Johns. 227. 428. For though the defendant set forth the record of the other suit, that was matter of inducement; the essence of the plea, is the former recovery for the same cause. It follows, that the parol evidence, as to the manner in which the proceeding to judgment was conducted, ought not to have been received. The case of the plaintiff below did not require it; for so long as the judgment remained, as it could not be impeached by witnesses, so it could not be supported by them, for as is observed by Sir Edward Coke — a, record is of so high a nature, and importeth in itself such absolute verity, that if it be pleaded, there is no such record, it shall not receive any trial, by witness, jury, or otherwise, but only by itself. 1 Inst. 117. 260. The strict or formal plea here was, nul tiel record, which was tried by a jury and witnesses, and the errar is therefore manifest.

Judgment reversed, and a venire facids de novo awarded.  