The opinion of the court was delivered,
by Lowrie, C. J.There have already been two verdicts on this title, the first against, and the second in favour of Ferguson & Betts. On the first, judgment was not formally entered, on the second it was, and now we are trying the third action. On the first and second trials, in 1852 and 1853, the parties had not discovered that the rule declared in Seitzinger v. Ridgway, repealed by the legislature in 1841, had been restored in 1850, 7 Casey 432, and they tried both causes without reference to that rule. On the third trial, Staver sets up that rule, and relies solely on it. He sets up the record of the first action as a bar to this one, and the court directed a verdict in his favour, conditioned that judgment be entered in favour of Ferguson & Betts, if that record is no bar.
. There is, in fact, no judgment on the record of the first case, and we cannot treat the payment of the jury fee and the entry on the lien docket as equivalent to one. That seems to contain only the entry of the verdict, and some prothonotaries make the entry without waiting until judgment is actually rendered. The lien docket is not the record of judgments, but the essential index of them as a general rule, and there is no exception in favour of this case. It does not make a judgment, but refers to one supposed to he already made. There is none such; and it would be quite a surprise, and even a trap, to infer one; for the parties never thought, until now, of regarding the first trial as being so efficient. As the record stands, it is no defence, and we can find nothing in the paper-books to justify us in awarding a new trial.
Judgment reversed, and judgment for the defendant below, according to the reserved point.
Woodward, J., dissented.