Henry Sparks, junior, who survived Isaac Lloyd against Edward Garrigues and Robert Haydock, 1 Binn. 152

Yeates J. We have been called upon by the counsel on each side, to mould the finding of the jury agreeably to the rules of law, and the substantial justice of the case. The defendants’ counsel have insisted that the verdict should be entered for them, contending that the suit in its present structure lias been brought prematurely.

They admit that a bond conditioned' to pay money by instalments, may be prosecuted on one instalment becoming due, though it is otherwise as to a single bill; but they urge that the stipulation of the payment of the interest yearly, is not in its nature an instalment; and further, if it should even be so considered, that a special declaration in debt should have been filed, demanding the interest eo nomine.

It cannot be denied that this obligation was intended to secure as well the payment of the annual interest, from the 20th May 1797, as the 1000 dollars on the 20th May 1801, and it is so expressed in the instrument. If therefore the annual interest could not in correct language be deemed an instalment, it would fall under the same principle. The objections to the form of the suit are founded on the expressions imputed to Lord Kenyon in 5 T. R. 553.

The expressions of Lord Kenyon and of Justice Ashhurst, must necessarily be considered as generally referrible to the subject matter before them, which was a simple contract. The expression of Lord Hale in Seaman v. Dee is strongly doubted, I might say denied. There it was held that no action of debt lies for the interest of money, but that it is to be recovered by assumpsit in damages; but the other two judges held that debt -would also lie in such case; and if it was otherwise, injustice would be done where the payment of the interest was stipulated by deed.

Neither of them however assert, that this could not be done in a suit brought for the penalty of the bond, nor that it must be effected by a special declaration referring to the condition of the obligation. The very point now under consideration was determined at Nisi Prius at Lancaster, between Graff and Whitmore and others, on a bond worded substantially like the present, wherein I was of counsel with the plaintiff. I therefore assume the position that interest may be recovered in the present form of action, and proceed to consider to what extent that recovery shall be.

It seems a settled principle that the cause of action must be complete when the suit is instituted, and cannot be made good by subsequent events. Where, however, on the sum demanded interest is fairly running on and due, the jury in their verdict should find the same from the commencement of the action until the time of the trial, or if at Nisi Prius to the day in bank; otherwise injustice would be effected. I do not recollect any other exception to the general rule. No man can be arrested here, unless a good ground of action exists when the writ is taken out; nor can be compelled to defend such a suit.

The parties are placed on the same footing, and their relative rights are graduated on the same scale; a defendant cannot avail himself of a set-off which accrued to him after the commencement of the action. In Thompson v.

Musser, 1 Dall. 462. it is asserted by counsel, and concurred in by the court, that the constant practice in all the courts of this state, as well before as since the revolution, has been to enter the verdict, on the issue of non solvit, for the sum found to be actually due; but it is otherwise on the plea of non est factum, and most other general pleas; the diversity most probably grew out of the defalcation act.

The plaintiff’s counsel have objected that the defalcation act applies only to mutual debts, and that the law in the particular under consideration is confined to three cases: First, where the defendant has paid or satisfied the debt or sum demanded: Secondly, or a part thereof: Thirdly, or where the plaintiff has been overpaid: and that the defence set up here alleges a want of consideration, and that nothing was ever due.

It is answered that our act goes farther than the British statutes of set-off, by allowing defendant to give any bond, bill, receipt, account, or bargain in evidence, and that the practice of travelling into the want of consideration, primarily arose from the defalcation act, to prevent manifest injustice.

It is farther said, that though no payment is made on such an obligation as the present, it is within the equity, if not within the express words of the act of Assembly; but that in all events this case is to be governed by the act, inasmuch as one year’s interest had confessedly been paid and was indorsed on the bond. In Musser v. Thompson, the verdict of the jury was for the entire debt and interest in tobacco, though nothing was paid thereon.

The plaintiff’s counsel have contended that the bond becomes forfeited by the nonpayment of the year’s interest, which was due previous to the commencement of the action, and that the penalty thereby became the legal debt. They insist that judgment should be entered therefor, the merits of the bond having been fully tried, in order to move the court to take out execution for the sum incurred since the time of bringing the action, or to take out a scire facias under the 8 and 9 W. 3, which we have extended by our practice.

To this it is objected, that our general practice under the plea of payment is adverse thereto, and that the defendants have an unquestionable right to an untrammeled trial of the whole merits, as any sum or sums of money may become due under the obligation. Independent of any practice which may have obtained on this head, my great substantial ground of refusing my consent to the motion, on the part of the plaintiff, is that the bond would thereby pass in rein judicatam, and would in fact amount to a prejudication of matters not put in issue in this action.

A judgment concludes a defendant as to all matters of defence which existed anterior thereto, though as to things which happen since the commencement of the suit, they may be taken advantage of by pleas puis darre'm continuance. I would cautiously guard against every legal difficulty on this score.

If at a future day when the trial of the plaintiff’s demand for the principal may come on, the defendants may have it in their power to shew an entire want of consideration for this bond, that the lands sold belonged to others who had actually recovered them at law, I think they ought not to be preeluded from going into defence upon such subsequent suit brought either in debt or covenant.

Moved by these considerations, my opinion is, that to do equal justice between the parties, the verdict should be entered up for sixty dollars, the year’s interest due and payable at the time of the impetration of the writ, toge ther with all the interest due thereon, from the day of payment up to the time of trial. I consider myself correct in this particular, as it is a fixed sum stipulated to be paid on a precise day, and is considered by the court in the nature of an instalment.

For the aggregate thereof, I think judgment should be entered and not on the penalty of the bond under the plea of payment in this case. Smith J. Previous to our consultation last evening, I had seen and attentively considered the opinion delivered, and I feel difficulties about the manner in which the verdict and judgment ought to be entered in this form of action.

On one side, should the verdict be entered for the interest only, due at the time the action was brought, the doubt will be whether a new action can be brought on the same bond, for the interest due afterwards, or for the principal; whether such verdict and judgment will not be a bar to a future action. The defendants’ counsel have agreed to obviate this difficulty by making a special entry on the record that it shall not be a bar.

In fact one year’s interest only was due at the time the action was brought; whether that was paid or not, was the only fact really in issue on trial, although the merits of .the whole were tried without due consideration I apprehend. It seems to me that the result would be exactly the same, whether the verdict be entered for the penalty, or for the interest due at the time the action was brought, with interest from the time at which it ought to have been paid, except as to the costs, if the interest be under 50/.

For if the defendants would be let into a defence in a new action, if judgment be given for only the interest due, they would be equally entitled to such defence on a scire facias for the instalments due afterwards; or even before leave would be given to take out execution for such instalments, they would on proper cause shewn be entitled to have it tided on an issue directed by the court, whether any defence had arisen which they could not have given in evidence on the issue which has been tried.

That the defendants might make such defence is clear to me on the pi'inciples of the defalcation act, and our practice of giving fraud, mistake, or want of consideration in evidence; because suppose after the recovery or payment of the interest, and before the principal became due, or before action could be brought for it, the lands for which the bond was given were bona fide recovered against the obligor, (he having given due notice to the obligee to defend the title to the land for which the bond was given) by due course of law; it would be contrary to natural justice, that the obligor should be compelled to pay such bond, and the defalcation act and our practice in such cases are founded on the principles of natural justice.

Supposing the obligor should be let into a defence, to the extent I have stated, to each instalment as it becomes due, it would be no more inconvenient than if a separate bond had been taken for such instalment, in which case it is clear that the defendant or obligor may make such defence to each bond. Whether judgment be entered for the penalty,- or for the interest only, the form of entering it must be different from any in the books of entries.

I therefore suggest to the counsel on each side to draw up a form in which they think judgment ought to be entered, to enable us better to enter it agreeably to our law and practice, in a manner best calculated to do equal justice between the parties, and to become a rule in such cases hereafter. Difficulties on each side occur to me; and if my brothers should be divided in opinion, as I believe they will, I will take time to advise. Brackenridge J.

By the defalcation act “If any two or “ more dealing together be indebted to each other upon bonds, “ bills, bargains, promises, accounts, or the like, and one of them “ commences an action, if the defendant cannot gainsay the “ deed &c. it shall be lawful for such defendant to plead pav- “ ment &c. &c.” This act therefore does not apply to cases where he gainsays the deed by pleading non est factum, or where admitting the execution he pleads duress, or under the plea of payment gives fraud, mistake, or want of consideration, in evidence, in avoidance of the deed.

The penal sum is less than nominal in the case of a set-off under this act; that is, it is not even noticed in the judgment entered, nor is it necessary; for the reducing of the sum in demand by a set-off does not affect the costs. The act renders it clear of this difficulty.

In the case before us, it would certainly be most simple and reasonable to sustain an action of assumpsit for the interest, as for an instalment becoming due; but it would affect the costs, when the sum is within the cognisance of an inferior jurisdiction; and it would introduce another inconvenience; the plea to the execution, or the pleas in avoidance, might be brought into view and made triable toties quoties on every instalment of the obligation,, unless it could be saved by an averment as an issue already determined. But this would give delay, and increase suits.

Again; an action of covenant must be on the whole of the obligation, and yet the judgment for the particular sum recovered. Would not this be in bar of another action on the bond? But can we not reach the justice of the case by a judgment for the penalty, with leave to take out execution for the sum due at the time of bringing the action, and also for the sum becoming due up to the time of taking out execution, or what may become due subsequent to the taking out the execution in the first instance.

It is not under the defalcation act, but under the exercise of Chancery powers that we relieve from the penalty; and though nominally we pursue for that sum. yet the sum really due is the, 'debt. But he that will have equity must do equity; and on this principle it was early in practice to suffer the penalty of an obligation to cover a simple contract debt. If so, why not cover a sum that has become due in the intermediate time, and that depends on the same writing.

If any thing has arisen which goes to a sum becoming due since the action brought, or plea pleaded, or judgment entered, this matter on motion may be shewn to the court; and if of such a nature as to require it, an issue may be directed to try the fact, and in the mean time the penalty suspended, and execution staid as to the sum in controversy. Or let judgment be entered for the penalty, subject to a defence to any instalments becoming due since the action brought, provided that defence be on a ground arising since bringing the action.

It may be seen therefore, that I consider the defalcation act as havingno application to the case before us; nor do I consider our rule of letting in a defence to the consideration &c. of the bond under the plea of payment, as making any difference, save as to the way of getting at the truth in a court of law. I substitute motion and leave to take out execution, and the framing an issue if necessary, in lieu of the scire facias.

But let the thing lake the course of the English practice if you so choose it, and let a scire facias issue toties quoties on the instalments; under the plea of payment nothing but payment could be proved; for it would not come within the meaning of the rule of pleading, to travel into the consideration of the bond, as that issue is already tried. I again say that it is under the written rule of the court, and which rule is from the Chancery power of the court, that payment here is pleaded; it is no set-off, nor has it any thing to do with that act.

There being a difference of opinion in the court, a second argument was directed upon the appointment of the present Chief Justice; and it accordingly took place at March term 1806, by Levy for the plaintiff, and by Hare and Rawle for the defendants, upon the same points which had been already urged; except that it was now conceded that there must be judgment of some kind for the plaintiff; and this day the judges delivered their opinions. Tilghman C. J.

This is an action of debt on a bond in the penalty of 2000 dolls, dated 20th May 1797, and conditioned for payment of 1000 dolls. 20th May 1801, with lawful interest to be paid annually from the date. At the time of the commencement of the action, one year’s interest, amounting to sixty dollars, was due and unpaid. The plaintiff declared for the penalty of the bond in the usual form, to which the defendants pleaded payment, with leave to give the special matter in evidence.

The defendants, agreeably to the practice and rule of this court, gave notice to the plaintiff that under the plea of payment they meant to give in evidence sundry matters, which I shall not particularly mention, but which if established were of such a nature as to avoid the bond. The general replication was made to the plea of payment, and issue joined. The jury found for the plaintiff; and by the consent of the parties it is now submitted to the court in what manner judgment shall be entered, that is to say whether for sixty dollars the amount of the interest due, or for the penalty of the bond.

It is a point of considerable importance; for if the judgment is entered only for the sixty dollars, the plaintiff must bring another action for the interest accrued since this action was brought, and for the principal; and the defendant will again put in the same plea, which has been already tried and determined against him. The nonpayment of interest annually was a forfeiture of the bond.

It should seem therefore that the issue being found for the plaintiff, the judgment according to the general principles of the law should be entered for the penalty of the bond, it is not denied by the defendants’ counsel but that this is according to the practice in the courts of common law in England. But they have made several objections founded on the law and practice of Pennsylvania, and particularly on

an act of Assembly passed, in 1705, commonly called the defalcation act, which directs that in certain cases judgment shall be entered, not for the penalty of the bond, but for the sum which by the jury shall be found to be due thereon. This is the only difficulty in the case; but it appears to me to be rather an apparent than a real difficulty; for it is founded on a supposition that the plea of payment with leave to give evidence of an equitable defence in bar of the action, is derived from the defalcation act. But that is not the case.

The defalcation act provides that where there have been mutual dealings between plaintiff and defendant, if defendant cannot gainsay the claim of the plaintiff whereon he is sued2 he may plead payment of all or any part of the debt or sum de'manded, and give any bond, bill, receipt, account, or bargain, in evidence.

If it shall appear that he has fully satisfied the claim of plaintiff, judgment shall be given for him; if onty part has been satisfied, the plaintiff shall have judgment for the residue; if t'he plaintiff has been overpaid, the jury shall give a verdict for the defendant, and certify in how much the plaintiff is indebted to the defendant, which may be recovered by the defendant in a scire facias against the plaintiff Now the words as well as the spirit of this act extend only to cases of set-off where the' defendant acknowledges the deed,bargain, or account, on which the claim of the plaintiff is founded, but opposes it by payments or by another claim of his own.

But the case before the court is widely different; for the defendants set up a defence, not consisting of payments or set-off,but which goes to the total destruction of the plaintiff’s cause of action. On what then is this kind of plea founded? It has arisen from the particular situation of Pennsylvania, in which there is no court of equity, and therefore the courts of common lav/ jurisdiction have very property adopted a mode of practice by which defendants are permuted to avail themselves of an equitable defence.

But it never was intended that an equitable defence, which goes in bar of the plaintiff’s whole cause of action, should be tried more than once. This would be going beyond the relief granted by courts of equity; and no case has been cited to shew that more than one trial has been had under similar circumstances in this state. It has been shewn indeed, that where the special matter has been given in evidence under a plea of payment, judgment has been entered for the sum found by the jury to be due.

But in all the cases cited, the whole dispute has been finally settled, and the sum found due on the bond was the whole that the plaintiff could ever be entitled to. The plaintiff therefore would have no objection to entering judgment for that sum. Butin cases like the present, if judgment is entered onty for the sum due at the time the suit -was commenced, the plaintiff will be driven to a new action for every future year’s interest, and the parties involved in a scene of endless litigation.

It has been also objected, that by an entry of judgment for the penalty, the defendants will be debarred from the benefit of a defence founded on circumstances arising after the commencement of the action. But that is not the case. The plaintiff' in the first instance is onty allowed to take out execution for the sum due when the action was commenced; he must move the court for future executions; and then if it is made to appear that the defendant has a defence, other than that which has been tried., and arising subsequent to the suit, the court have it in their power to see that justice shall be done.

It is extremely convenient, and prevents a multiplicity of suits, to enter judgment for the penalty of bonds, and to give permission to the plaintiff to take out execution for the different sums as they become due, according to the condition. I can see no object in entering judgment only for the interest due at the time of the action brought, but to let the defendants into a second trial of what has been already determined: an object subversive of a very valuable principle of law, and tending to the increase of expense and litigation. Expedit reipublicce ut sit jinis litium.

I am of opinion that judgment be entered for the penalty of the bond, with liberty for the plaintiff in the first instance to take out execution for sixty dollars.

Ye ates J. said he was under the necessity of adhering to the 'opinion which he had before delivered; that is, that judgment should be entered for the sixty dollars, with interest thereupon from the time of issuing the writ, but without costs, as the sum did not amount to fifty pounds; and that he could not think that the admission of the execution of an obligation by the obligor, and shewing at the trial that it would be the height of injustice to exact the payment thereof under all the circumstances of the case, could be denominated gainsaying the deed.

It was no more in his idea, than if he could prove that the full contents of the bond had been discharged in current money. Smith J. and Brackenridge J. agreed in opinion with the Chief Justice, and said that the defendants ought to have liberty to make defence on future instalments, provided such defence arose since the commencement of this action, and was not the same that had been tried.

Judgment for the Penalty, with leave to take out execution for sixty dollars." At a subsequent day the question was argued before the Court, whether the plaintiff was entitleei to charge ino rest on the annual interest of the bond, which was decided in the negative.