
    MECHANICS’ SAVING FUND VS. MARGARET MURPHY.
    Where no question is reserved and there is a verdict for- the plaintiff, the Court cannot enter judgment for defendant non obstante veredicto.
    
    But -where the Supreme Court were satisfied that the Couit below intended to reserve a question of law, but did not do so, they sent the case back for a new trial.
    Error to Common Pleas of Schuylkill County : No. 334, January Term, 1860. Scire facias sur mortgage.' Plea nil debet and payment with leave. May 5, 1858: Yerdict for plaintiff for $600 principal and $207.60 interest, fines and dues. Same day the 'Court grant a rule on plaintiff to show cause why judgment should not be entered for defendant non obstante veredicto. Defendant took no exceptions to evidence or charge of the Court, but filed the following reasons inter alia why plaintiff was not entitled to recover. Defendant, being a married woman, could not bind herself to the charter of the Saving Fund. That the mortgage made by the husband' as attorney in fact for the wife was not execuled and acknowledged according to the Act of 1848. Jany. 30, 1860 rule absolute; judgment for defendant. The Saving Fund took this writ of error and assigned the entry of judgment non obstante veredicto as the error.
    
      E. O. Parry, Esq. for plaintiff
    in error argued: First, that the proper course for Murphy would have been to move in arrest of judgment; for a rule for judgment non obstante veredicto cannot be moved for by defendant where there is a verdict for plaintiff. 2 Tidd’s Practice 827. 1 Chitty Pleading 695. Schermerhorn vs. Schermerhorn, 5 Wendell 513. Smith vs. Smith, 4 Wendell 468. Bellows vs. Shanon, 2 Hill 88.
    Second. The pleas in this case admit the execution of the mortgage Zeigler vs. Sprenkle, 7 W. & S. 180, and the truth of the averments of the sire facias Lewis vs. Morgan, 11 S. & R. 237.
    Third. Judgment non obstante veredicto cannot be entered unless there is a question of law reserved which must appear upon the record. Clark vs. Wilder, 1 Casey 314. Irwin vs. Wickersham, 1 Casey 316. Wilson vs. Tuscarora, 1 Casey 317.
    Fourth. The question whether the mortgage was properly executed and acknowledged can only be raised by the plea non est factum. Jamison vs. Jamison, 3 Wharton 468. Stoops vs. Blackford, 3 Casey 218. Black vs. Galway, 12 H. 19. Roseburgh vs. Sterling, 3 Casey 293. Act of April 18, 1853, P. Laws 572. Act of April 11, 1856, P. Laws 315. 1 Saunder’s Pleading and Evidence 406. 2 Ibid 173.
    
      
      James Ellis, Esq., for defendant
    in error, argued: First. Under the plea of nil debit evidence may be given showing, that plaintiff should not recover. Latapee vs. Pecholier, 2 W. C. C. R. 180.
    Second. A married woman cannot agree to pay usurious interest. Kupfert vs. Guttenberg Building Association, 6 Casey 465.
    Third. Suit was brought before the mortgage was due. He also cited the following authorities: Mahon vs. Gormley, 12 H. 82; Peck vs. Ward, 6 H. 506; Ulp vs. Campbell, 7 H. 361; Bechtold vs. Brehm, 2 Casey 269; Heugh vs. Jones, 8 Casey 432; Glyde vs. Keister, 8 Casey 85; Thorndell vs. Morrison, 1 C. 326; Stoops vs. Blackford, 3 Casey 217.
   The Supreme Court reversed the decison of the Court below on Jany. 31, 1861, in the following opinion by

Lowrie, C. J.:

It was quite probable that the principle which was intended to be enforced by entering this judgment contrary to the verdict, was a very proper one, but we cannot give it effect in this way. Judging from the record simply, we should say that the plaintiff is entitled to a judgment on this verdict. Certainly there is nothing on the record to show the defendant’s title to the judgment. When the law authorizes it or the parties agree to it the judge may on trial, reserve a fundamental question of law, stating definitely what it is, and to take the verdict subject to it and afterwards enter the judgment according as his ruling of the reserved point may require. Then the party who is dissatisfied may take a bill of exception to the decision of the reserved point and thus have it made part of the record for the purposes of error. This not having been done in this case, we find nothing to sustain the judgment for the defendant non obstante veredicto. Yet something equivalent to this was evidently intended and therefore we do not enter judgment upon the verdict, but treat the case as a mistrial. It is evidently a very proper case to submit that to the Court as a case stated. Judgment reversed and a new trial awarded.  