
    [Lancaster,
    May 24, 1826.]
    MOYER against KIRBY.
    IN ERROR.
    This court'will not reverse a judgment entered by confession in the court below, in an action of debt, because no declaration has been filed.
    But where the suit is commenced by writ, an appearance entered, a plea put in, a judgment confessed, and the plaintiff j after judgment, by leave of the court, files a declaration, nunc pro tunc, the judgmefit will be reversed, if the declaration sets forth no cause of action. ;. .
    An action of debt will not lie on a judgment for damages, obtained under the act • of the 6th of Jtpril, 1802, “ to enable purchasers at sheriffs’ and coroners’ sales to obtain possession.” The remedy prescribed by the act, can alone be pursued.
    Error to the Common Pleas of Berks.county, in which court David Kirby, the defendant' in error, issued a capias in debt for four hundred dollars against George Moyer, the plaintiff In error, who entered special bail. A plea and replication were filed, but no declaration, and the defendant afterwards confessed judgment, A capias ad satisfaciendum issued against the defendant, which was followed by a scire facias against the bail. On motion, the court set aside the ca. sa., and directed the sci. fa. to be discontinued, each party paying his own costs. The plaintiff’s counsel afterwards moved for leave to file -a declaration, nunc pro tunc, and to issue a ca. sa. against the defendant, which was granted.
    The declaration set forth, as the cause of action, a'judgment for damages rendered by two justices of the peace, in a proceeding under the act. of the 6th of April, 1802, to enable purchasers at sheriffs’ and coroners’ sale's to obtain possession, &c.
    
      Baird and Buchanan, for the plaintiff in error.
    1. Judgment was entered in the court below without a declaration having been filed, which was error. If no declaration be filed, the judgment is erroneous, though the cause was tried on the merits. Wallace v. Elder. 9 Serg. & Rawle, 143. Sp, in replevin, for want of a plea. Lecky v. MDermott, 5 Serg. & Rawle, 331. So if no issues be joined. Brown v. Barnett, 2 Binn. 33. Judgment in dower will be reversed, if there be no narr. 2 Yeates, 433. And so will a judgment by confession. Hardy v. Moore’s Executors, 3 Harr. & MHen. 389. Rowen v. Slate for the use of Hughes, Id. 408.
    2. T.he court had no right to' permit a declaration to be filed, after judgment and execution.
    3. The declaration filed by the permission of the court, set forth no legal cause of action. It stated that the damages were assessed by the justices and not the jury, to whom alone the power to assess them belonged by the act of the 6th of April, 1802, Purd. Big. 621. A court of limited jurisdiction, like that created by the act of assembly, must appear to have acted within the sphere of its jurisdiction; but on the face of the■ declaration it appears, in this instance, to have exceeded its jurisdiction. Rex v. Croke, Cowp. 26. 1 Petet's’ Rep. 36. 5 Serg. & Rawle, 179. It is no answer to this objection to say, that the declaration is upon a judgment, which is valid until reversed. A judgment of a court of competent jurisdiction, is conclusive until reversed; but where the court has no jurisdiction,' the judgment is void.
    4, Supposing the damages to have been rightly assessed by the justices, no action of debt can be maintained on their judgment. The act of assembly which gives the damages, points out the mode in which they shall be recovered. And the act of the 21st of March, 1806, 4 Sm. L. 332, .declares that where a remedy is given by act of assembly the common law shall not be resorted to. But, independently of that act of assembly, a statutory remedy haying been given, that alone must, upon common law principles, be pursued. No precedent can be found in favour of such an action as this.
    
      Smith, for the defendant in error,
    was informed by the court, that he need not speak to the first and second exceptions taken by the plaintiff in error.
    He contended, that the declaration set forth a good cause of action. It stated a judgment, and referred to the record, by which it more fully appeared. This judgment remains unreversed, and cannot be controverted in another suit. 1 Chitty on PI. 354. 5 Jltt. Pr. in K. B. 434. 2 Lev. 161. 2 Burr. 1009.
   The opinion of the court was delivered by

Duncan, J.

The plaintiff in error has assigned five reasons for reversing this judgment.

1. That judgment was entered against him without a declaration. .

2. That the court permitted the defendant in érror, the plaintiff below, to file a declaration after execution, nunc pro tunc, and to take out a new one on the record so amended.

3. 'That* the declaration so filed, set out no legal cause of action.

4. That if it set forth any, it is one purporting to be founded on a judgment for damages, rendered by two justices of the peace in a proceeding under the act of the 6th of Jlpril, 1802, enabling purchasers at sheriffs’ sales to obtain possession; whereas the act gives no authority to the justices to assess the damages in such proceeding, but to the inquest. And,

5. That no action of debt lies, in the Court of Common Pleas, for the damages assessed.

The first and second specifications of error I will consider together. If no declaration had been filed, on the state of the record, I would long pause before I reversed the judgment for that reason. It would be sweeping work at this day, after a practice of nearly half a century, to reverse a judgment by confession for a certain sum in an action of debt. It has certainly been a common practice for parties to go to the prothonotary’s office, enter an amicable action, and the defendant to confess a judgment without a declaration. This may be a practice exposing the defendant to some risk: he may find it difficult to prove the consideration of the judgment, and so plead it in bar of a subsequent action, because it does not show any cause of action, or on what account the judgment is confessed. But the usage is inveterate, and has been so long sanctioned, that it would now be ruinous to overset all that has been done under it, even though the court might observe its inconvenience. The practice of every court is the law of that court, and much of the practice in this state has no other foundation than the usage itself. But this was the case of an adverse suit by writ, appearance by attorney, plea put in, and judgment by confession, waiving for the time the declaration. I think the attorney would have been justified in filing a declaration, even without leave of .the court. The declaration being filed by order of the court, on the plaintiff’s application, nunc pro tunc, it is now ás open to objection, as if it had been filed before judgment, where the objection goes to the root of the action, not where the defect is mere matter of form; and as this is not after a verdict, which might perhaps have cured the mistake, in setting out that the damages had been assessed by the justices and not by the jury, though this is far from being clear, yet there having been no verdict, and the jurisdiction of the justices, whose jurisdiction in this case is peculiar, not appearing, but the contrary appearing, that they had no jurisdiction to assess the damages, this is a fatal error; for in a declaration founded on such proceeding, it must appear that the power exercised by this limited and circumscribed jurisdiction, has conformed to the law conferring the authority. This tribunal must fiot only show that it had jurisdiction, but this must appear on the face of the proceeding. Now the proceedings, as here set out, show that it was an assessment of damages by the justices, who had not the power, and not by the jury, who had it. Debt lies for an amercement in a court leet, but in this it ought to be alleged in the declaration, that the defendant was an inhabitant, as well at the time of the amercement as of the offence; but the omission of this averment is cured by the verdict. Wicker v. Norris, Hardw. C. 116. Bull. N. P. 167.

7But the fifth exception is the one on which the court now decide, as it cuts up the action root and branch.

In this summary proceeding of a jurisdiction very limited, created pro hac vice, not proceeding according to the course of the common law, where the remedy is .a special one, pointed out by the law giving this new power, I am clearly of opinion that debt will not lie. The remedy here is by warrant from the justices to levy the damages and costs from the goods and chattels of the defendant. And, independent of the positive law of the state on this subject, the rule of the common law is, that upon a new statute which prescribes a particular remedy, no remedy can be taken but the particular remedy prescribed by the statute. The act gives no power, but to levy the damages by the warrant of the justices on the'goods and chattels; none to touch the body. The goods of the tenant are liable to distress and sale, but. there is no power to arrest him to take his body.

No action of debt lies on a statute staple as it does on a statute merchant, for the seal of the party is not put thereto, and this is a duty made by a special law, which was not by the common law, and therefore he ¿hall have no other remedy for it than the statute hath provided. 7 Vin. 349, tit. Debt, M.

Debt lies not on a statute staple, for the seal of the party is not affixed, 1 Roll. Ab. 599, pl. 45; but it will lie on a statute designed to be a statute staple, but not executed pursuant to. the statute. Cro. Eliz. 233, 494. But this was, because, being void as a statute, and the party having no remedy to enforce it as a statute, it was good as an obligation at common law. Moore, 405. Gould. Pl. 157. It is for these reasons it has been held that debt will not lie for a poor rate, because the statute gives no authority but to distrain the goods of the delinquent. Stevens v. Evans and others, 2 Burr. 1157.

The cases cited from Massachusetts proceed on the same principle. It is for this reason the opinion- of the court, that the judgment be reversed.

Judgment reversed.  