The opinion of the court was delivered by
Gibson, C. J.The irregularity of inquiring into the validity of the original judgment in the trial of the scire facias, was waived by the plaintiff, who, in agreeing to the admission of parol evidence of the alleged fraud, consented to a trial on the merits; and as the jury have negatived the fraud, the only assignment of error that can be urged, is that which relates to the direction with respect to the objection depending upon legal grounds. Evidence having been given that the parties being at the house of a third person, and before arbitrators, of whom the justice was one, compromised their dispute, the defendant agreeing to confess judgment for a sum certain; and that the justice having, with the assent of the defendant, made a memorandum of the terms, entered it on his docket at his return home; the court instructed the jury that a judgment thus rendered, is illegal and invalid.
A court is defined to be a place where justice is judicially administered; and a justice of the peace, being a judicial officer, must necessarily have his court or place of administering justice. That the matter has been so regarded by the legislature, is clear from the act of assembly by which he is forbidden to keep his “ stated *20office” in a tavern. It is difficult to conceive of the office of a judge, without at the same time, associating with it the idea of a place for the performance of ifs duties, The judgment was however actually rendered at the justice’s office. But were the parties before him there? That is not pretended: but, it is said, the confession of the defendant was received when they were actually before him. That brings the argument back to the point from which it started, the receiving of the confession being as much a judicial act-as the recording of it. But jt is said the justice acted under a previous authority. It has been determined, however, that a warrant of attorney, which js quite as operative as a parol authority, is altogether insufficient, The act of assembly which gives him' a qualified jurisdiction, requires the parties to be before him; and the abuses that might otherwise be practised, are sufficiently obyious to require him to be held to the letter of his authority. In the instance before us, the defendant disputed the correctness of the entry at the moment it was shown to him. Had he been present when it was made, there would have either beqn np cause or else no room for cavil.
The judgment below is therefore to be affiriped; but the effect of it is not so easily determined. The verdict has not disposed of the demand, but merely of the original judgment. By agreeing to put this matter in issue on the trial of the scire facias, the parties have created difficulties which perhaps they did not anticipate. If the proper judgment on the verdict be, that the original judgment be reversed or vacated, then the scire facias is in substance a writ of error on the part of the defendant, who in contemplation of law demands nothing by the writ; and in giving effect to the agreement of the parties, I am unable to see how we can escape from giving it this preposterous effect, I am not, even yet, certain that we ought not to reverse it for the irregularity, and leave the defendant to start a second time from the proper point, whence his course would be a plain one. A transcript entered on the docket of the common pleas, is, as regards real estate, virtually a judgment of that court, (Brannan v. Kelley, 8 Serg. & Rawle, 479.) consequently it may be set-aside on motion, with or without an issue, where it has been obtained surreptitiously; or it may be, only opened to let the party into a defence when he has missed his time either by accident or mistake; a practice extremely beneficial and founded on the chancery powers which our courts are in the daily habit of exercising. The matters however which constitute the defendant’s title to relief, must have existed previous to, or at the time of rendering the judgment. If they be subsequent, the court will not interfere in a summary way, further than to stay the execution, because they may be pleaded to a scire facias, which if it be necessary, the plaintiff will be ordered to bring. A neglect of this distinction, sometimes produces confusion and inconvenience, and at all times evinces slovenliness of practice. ¡Here the matter complained of, existed at the time of entering the *21judgment, consequently the proper course was an application to have the judgment set asjde; hut as the defendant has succeeded by .an irregular course, adopted it would seem by agreement, he is entitled only to the advantages that might have been obtained in a regular way. The original judgment will therefore not stand in the .way of a fresh action.
.Judgment affirmed.