
    Lessee of Dunlop against Speer.
    
      Chambersburg,
    
    1810. Saturday; October 6.
    IN this case a iudgment was entered for the plaintiff, in ° e r, ... , , , ~ . , the Circuit Court oí i rankhn county, on the 4th October 1804, with an agreement that the same should be released , „ „ , , ,, , . upon the payment of 6284 dollars 50 cents, due on certain articles of agreement between the plaintiff and defendant for , ir , the sale or a tract or land; 2000 dollars to be paid in two months, and the residue to be paid, one fourth in six months, and one fourth at the end of every succeeding six months until the whole was discharged; execution to stay in .mean time. The whole therefore became due on or before the 4th October 1806.
    if execution is stayed by the agreement of the parties, the “ year and day mns only from the time when such stay expires; and this, the on the vate arrangement out of court. The court will take of such though noton record,
    against!Twas assigned to B, íen^to^Tnd^ Active-ch^of agree-!* ment t0 repay day. The court reiusedto stay thiTjud”"ment! j-0 S“'e ,A tilne verdict against ? for damages in consequence of tortious' acts by him m breach of his covenants in the same av-though it would, ill’s claim was for money paid, or any other acble of l‘ISC'Ttín tion.
    On the 19th March 1805, Dunlop assigned the to Peter Ever ley and James Riddle, in trust to secure to a certain John Sheller the repayment of 1600/. without interest on the 1st of April 1809. On the same day articles of agreement were executed between Sheller and Speer the defendant, by which the former agreed to lend Speer the said sum of 1600/. to be repaid on the 1st of April 1809, without intere st, for the repayment of which Speer was to give approved security; and in consideration of this and of certain agreements and covenants on the part of Sheller, Speer covenanted to pay him 275/. per annum, on the 1st April 1806, and the three succeeding years. Sheller covenanted to serve Speer during this period in the capacity of founder at his ironworks, and that his son-in-law James Moore should serve him in the capacity of a clerk and manager &c., Speer paying him 150/. per annum. Sheller was also to have , tne option of becoming a partner m the ironworks upon certain ... . P . , . terms, alter the expiration or eighteen months.
    In consequence of misunderstandings between Shelter S'peer, the former did not elect to become a partner; and the 1600/. not being paid, he issued an habere facias in June ... ,. „ , -p p , 1809, which was stayed by judge Tcates, until the further order of this court. •
    Accordingly the court now was moved to set aside this execution. 1. Because the year and day having elapsed since the stay of execution upon record, viz. the 4th Oct. 1806, the execution was irregular, without a scire facias. 2. Because Sheller having broken his covenant to serve Speer faithfully as a founder, by neglecting his duty, and decoyingaway the servants of Speer employed in his ironworks, (of which an affidavit was filed) the court upon equitable grounds ought to suspend the execution, until the damages sustained by Speer, could be ascertained by a jury.
    
      Watts and Duncan, in support of the motion,
    contended upon the first ground, that the only cesset of which the court could take notice, that upon record, expired on the 4th Qct. 1806, from which time the year and day began to run, and that a scire facias should have issued to revive it, prior to the execution. It would be a source of endless mischief, if private agreements, of which there was no memorandum in court, could be used to sustain an execution which on the face of it was irregular; though in fact there was no agreement here, the judgment being merely given as a security, which it would be whether revived or not.
    On the second ground, they argued that the 1600Ɩ. and the covenants by Sheller ought not to be separated. It was an appeal to the equitable powers of the court to prevent injustice. It was not necessary to disturb Shelter’s security. He would have that at all events. But it was equity and nothing more, either to put him to his action, when Speer might set off his claim under Sheller’s breaches of covenant in the same articles, or give it in evidence as an equitable defence, or to suspend the execution until Speer might try his right against Sheller. There could be no doubt that under our act of assembly unliquidated damages in contract might be set off. Unless the motion was granted, Sheller would be allowed an inequitable priority in obtaining his demand upon Speer, and Speer would be inequitably postponed, although both demands arose out of the same articles.
    
      Dunlop and Brown, contra,
    held the first reason to be insufficient, because it was perfectly settled, that any act or agreement of the defendant producing the delay, excused á 
      scire facias; and for a very good reason, because the presumption of payment which alone called for a scire facias, could not arise under such circumstances. Hence a writ of error prevented the year and day from running; and so an injunction, notwithstanding some old cases to the contrary. Mitchell v. Cue 
      , 2 Saunders 72.ƒ. So also delay by consent of parties. 2 Bac. 730., Execution H. And it is now immaterial whether the delay appears by matter of record in the court from which the execution issues, or not. The cases of Booth v. Booth 
      , and Winter v. Lightbound 
      , which decided that an injunction from chancery was no excuse for the want of a scire facias in the King’s Bench, went upon the ground, that the cause of the cesset must appear in the court where the judgment is rendered. But they were expressly overruled by Mitchell v. Cue. Here it was impossible, by the contract of the parties, to take execution until after the 1st April 1809; which was of course an agreement that execution should stay until that time.
    The second ground is also insufficient, because the 1600/. was wholly distinct from the general design and object of the articles. It was money lent, for which Speer was to give approved security; and that security was the judgment. He knew that execution could be taken out. Both parties contemplated this remedy; and therefore it is not against equity for Sheller now to use it. But there is another reason against the delay, that in an action by Sheller, these damages claimed by Speer could not be defalked. The affidavit states that they arise from misconduct of Sheller, that is from torts done by him. Put it that they are for nonfeasance, or neglect of duty under these articles, they cannot be set-off. Th'e attempt was made in Howlet v. Strickland 
      
       to plead by way of set-off unliquidated damages arising from breaches by the plaintiff of other covenants in the same agreement on which he brought his action; and the breaches were all for non-delivery of alum; but it would not do. They could not be pleaded or given in evidence even as an equitable defence. Kachlin v. Mulhallon. 
      
    
    
      
       2 Burr. 660.
    
    
      
       1 Salk. 322.
    
    
      
       1 Stra. 301.
    
    
      
       Corp. 56.
    
    
      
      
         2 Dall. 237
    
   Tilghman C. J.

after stating the case, delivered his opinion as follows:

The defendant applies to thé court to set aside this execution on two grounds: 1. That the year and day having elapsed, the execution was irregular. 2. That upon equitable principles, the court ought to suspend the execution until it is ascertained by the verdict of a jury what damages the defendant has sustained by Shelter's breach of the covenants in the articles of agreement.

1. On this point there is no difficulty. The reason of the plaintiff being put to his sci.fa. after the lapse of a year and day, is, that it may be presumed the debt has been paid, since the judgment. A year and day has been thought sufficient time to raise this presumption. But it must be a year and day from the time the plaintiff was at liberty to take out execution. When a stay of execution is given on the record, it never was doubted, but the year and day was to be reckoned from the expiration of the stay. The reason is the same, when a stay has been given by agreement of the parties, not entered on record. For some time the courts were unwilling to take notice of any agreement not on record. But I take it to be now settled, that they will receive evidence of such an agreement. In Mitchell v. Cue and wife, 2 Burr. 660, it is laid down, that where delay of payment has been obtained at the instance, or for the benefit of the defendant, a sci.fa. is not necessary. This principle is highly reasonable; and when applied to the fact in the present case, it will prove, that the execution was regularly issued, because a year and day had not elapsed from the 1st April 1809, the day given to the defendant for the payment of the 1600/.

2. The claims set up by the defendant, arising from Shelter's breaches of covenant, are acts of nonfeasance, or malfeasance; such as neglect of duty, and decoying the servants of the defendant employed in his ironworks, to leave him. If the defendant alleged payment of money, or any thing which in its nature admitted of liquidation, I should think there was strong ground for his motion. But it appears to me, that to stop the execution on the grounds contended for, would be an extraordinary interference, not necessary, and not consistent with the intent of the parties. The 16P0Í. advanced by Sheller, was to be repaid on a certain day, and to secure a punctual payment, this judgment was assigned. Both parties must be supposed to understand the nature of the judgment, and that the plaintiff might inforce payment by execution. I can see no part of the articles, which intimates an intention, that the payment of this money should be blended with the other covenants, or that before payment should be made, it should be necessary to inquire into the performance of the agreement. By accepting this judgment as security for the 1600/., that part of the articles which required security to be given was performed, and thus separated from the other parts. I am therefore of opinion, that if the defendant has suffered damage by the plaintiff’s non-performance of his covenant, in the manner alleged, he should be left to his remedy by action on the articles.

Yeates J.

I have felt considerable difficulties, in forming my opinion on the present motion. I readily agree, that the execution is not to be set aside because no scire facias post annum et diem issued to revive the judgment. The arrangements made by the parties for their mutual convenience, precluded the necessity of such process, and there can be no pretext of surprise in the case. 2 Burr. 660.

If the agreement between the defendant and John Sheller looked forward to a new security, for the repayment of the 1600Ɩ. advanced by the latter, then I should be disposed to inquire into the legal consequences which would arise on the security being given. In such case, I think the failure of Sheller to perform his covenants, such as his refusing to fulfil the duties of a founder in the furnace, See. might be given in evidence under the defalcation act to diminish his claim to the 1600Ɩ. But I do not conceive, that damages arising ex delicto, from torts, such as bad management as a founder, or the acts of inciting the workmen to quit the employ of Speer, could be adduced to defeat the claim of Sheller, in a suit founded on this new security. On the other hand, if the parties contemplated the partial assignment of this judgment, as the security to be given under the agreement, then I should be of opinion, that any nonfeasance on the part of Sheller under his contract,, should not be admitted to destroy the effect of the judgment. I have on reflection adopted the latter construction of the articles between the parties, and view Sheller in the same light as Mr. Dunlop, as to the 1600Ɩ. secured. We are called upon to interpose our extraordinary powers, in order to prevent injustice being done. It is a case within the immediate discretion of the court; and if Speer has suffered by the breach of contract of Sheller, or by his tortious acts, he has a full and ample remedy under the agreement, or in a suit adapted to the merits of the case.

I concur that the defendant’s motion be denied.

Brackenridge J.

Where nothing is heard from a judgment for a year and day, it is presumed to be satisfied, and it is reasonable that the defendant should have an opportunity of shewing that; and hence the scire faciasBut where from the stay given no such presumption arises, there is no scire facias. Here it is not until after the 1st April 1809, that the year and day begins to run, and within the year and day after, the execution issued. It is therefore not irregular on this ground, and cannot be set aside. In the nature of it, was a scire facias necessary to ground an execution? Was the plaintiff bound to anticipate the pretence of such a satisfaction, and to give the defendant an opportunity of shewing it? That would be unreasonable, and the plaintiff could not be supposed to know that such a defence would be set up in bar of his execution. It is therefore not'irregular on this ground, and cannot be set aside.

But cannot it be stayed with a view to any order of the court? What order have the court a power to make? Where satisfaction is alleged in performing something specified under the judgment, the court can hear it on motion; and if it is of a nature of which they can judge and determine without the intervention of a jury, they will do it. In this case it is clear they cannot. It is not a satisfaction in money that is alleged, nor services, nor property of an ascertained value, in which cases they could by themselves, cfi auditors appointed, settle the payment made, and the balance due.

But have they the power to direct a scire facias by special ■'order? I think so. I see no principle of law against it. It is agreeable to the reason of the law on which the scire facias is founded. But will they do it in this case? That must be a matter of discretion. It is not the payment of money that is alleged, nor any thing done or performed eo intuitu, or directly with a view to satisfaction; but damages sustained under a contract immediately connected with the payment of the money secured by the judgment. How connected? The sum to secure which the judgment was in part given, was money borrowed from the cestui que use of the judgment, which by an agreement was borrowed of the cestui que use who was to receive wages and do services, which he has not done. He brought a suit on the article for his services, in which suit his default might have been set off, and judgment obtained even for the balance if any found, under the head of damages against him. This was not done, and it is proposed to set it off under the idea of satisfaction to this judgment; and a scire facias specially to be ordered to give the defendant this opportunity. It does not appear to me that justice requires that it should be done; or that the defendant will be without redress without such interposition. I am disposed rather to leave him to his action on the article.

Motion refused.  