Tbe opinion of tbe court was delivered by
Rogers, J.— This is a proceeding against a garnishee, in which tbe jury rendered a verdict for tbe plaintiff, for $617.84, without more, on which the court rendered judgment. This is palpably erroneous, disregarding, as it does, the plain directions of tbe act of June 13,1836, relating to tbe commencement of actions. That act, 58th section, requires tbe jury to find what goods or effects, if any, were in the hands of the garnishee, at the time the attachment was executed, or afterwards, and also tbe value thereof. And this is not matter of form, but substance, as tbe garnishee may, in many cases, discharge himself by surrender of tbe pro*107perty, and is not in any ease answerable beyond its value. The verdict, therefore, deprives the garnishees of a valuable right, having failed to ascertain what goods or effects, he had in his hands, and the value. Non constat that the goods might be surrendered, or that they were worth less than the amount of the verdict.
On the trial, the court permitted the plaintiffs to give in evidence the record containing the proceedings and judgment in the suit of the plaintiffs against S. S. Bergin, the original debtor. This was admitted for the purpose of showing the sum due. The admission of the evidence was excepted to, because the amount due on the judgment was improperly ascertained by the prothonotary. The argument is, that the action being in assumpsit on book account, it could only be liquidated by an inquest in pursuance of a writ of inquiry. And for this position plaintiffs in error rely on Pancake v. Harris, 10 Serg. & Rawle, 109. In that case, however, it will be remarked, there was no liquidation of damages whatever; nor was there any thing on the record, by which the debt couid be ascertained. In that respect, it is distinguished from this case. The 58d section of the act of June, 1836, expressly authorizes the plaintiff to take judgment at the third term, for default of appearance. The judgment was rendered according to the directions of that act, and the sum due was ascertained by the prothonotary, in pursuance of the 73d rule of the District Court, which directs, that in all judgments by default, where the plaintiff has filed an affidavit of the amount of his claim, the judgment shall be for that amount. In other cases the prothonotary shall liquidate the amount, where, from the nature of the action, it may be done without a jury of inquiry. Although this is an action of assumpsit, the District Court, who are the best judges of their own rules, have decided that the debt is correctly ascertained by the prothonotary. This decision I am not inclined to overrule, in this stage of the proceedings, on an exception to evidence.
On the trial, it appeared, that Darwin Smith was a clerk in the employment of the debtor, Samuel S. Bergin, a retail merchant, doing business in Pomeroy, in the State of Ohio, and without any express authority, and in the absence of his principal, who had absconded to avoid his creditors, sold to the garnishees, Hampton, Smith & Co., goods, including two horses, in payment of a debt of his employer, which was not then due. The court instructed the jury, that if they believed that at the time of the purchase and sale, S. S. Bergin had absconded, and that this fact was known to the defendants and Darwin Smith at the time, the purchase and sale were entirely unauthorized. To this part of the charge we perceive no plausible objection, that can be made by the garnishees, although the plaintiffs 'might, with some show of reason, complain of it. "We are of opinion it was an unjustifiable *108stretch of authority, without the aid of the circumstances on which the court rely. A clerk in a retail store has no authority to sell by wholesale, in payment of a debt due, and certainly not in payment of a debt not due. It is an elementary principle, that a special agent has no power to bind his principal by any act not within the scope of his authority. In such cases, the sale produces no effect on the title. It still remains the property of the principal. The ease of Beals v. Allen, 18 Johns. Rep. 362, is, in almost every feature, like the present, and rules it. Chief Justice Spencer (the facts and circumstances being almost identically the same) says, he (that is, the clerk who undertakes to sell,) was a clerk in his store, to keep his accounts and books, and to sell and retail his goods to his customers. He had no authority to sell goods by the quantity, or to deliver goods in payment or security for debts. It can never be considered an ordinary sale and delivery of goods. In one material respect, this is a stronger case than Beals v. Allen. Here the debt was not due. It is obvious that if a clerk has authority to apply any quantity of goods he may choose to the payment of a debt not due, he has power, in many cases, materially to injure, if not totally destroy his employer.
It is entirely useless to trouble ourselves with the question, whether Bergin would have the right to confirm the sale, as there is nothing in evidence on which such a point can be raised. There is no proof whatever of a confirmation of the sale by Bergin.
As this case goes down for another trial, it may be worthy of inquiry, what effect, supposing the property to be in Bergin not•withstanding the sale, the issue of the domestic attachment in Ohio may have on the title to the goods. As this point was not made on the first trial, we confine ourself to the remark, that it may hereafter be worthy of some consideration.
Judgment reversed and venire de novo awarded.