Downey v. Forrester

Bowie, J., delivered the opinion of the Court. On the 3d of August, 1867, a judgment by confession was entered in the Court below in favor of the appellants, against the appellees, for $449.39. A seire faeias, quare exeoutionem non, was issued on the 3d of September, 1870; to which the appellees pleaded, that the said judgment had been paid and satisfied. At the trial two exceptions were taken by the appellants to evidence offered by the appellees, and a third, to the rejection of the first and fourth prayers, and also to certain oral instructions, given by the Court “ sua sponte.” The law is well settled, that in answer to a soi. fa. the defendant cannot set up any matter which might have been relied 911 as a defence to the original action; otherwise, there would be no end to litigation. 6 Md., 307 ; 6 Md., 447 ; Foster’s Writ of Sci.

Fa., (L. L.,) 353. ¹¹⁹ The plea of payment, therefore, could only be sustained by evidence of payments subsequent to the date of the judgment recited in the writ. Both parties seem to concede this position. The contest is, whether the facts offered in evidence are necessarily such as proved payment before the rendition of the judgment; or an agreement to pay, to be executed after the judgment, which has since been consummated by actual receipt of the money by the appellants. If the facts sustained the former view, they were inadmissible; if the latter, they were competent and proper.

The case of McCullough, et al. vs. Franklin Coal Co., cited by the appellees, is not in point; that was a case of accord and satisfaction after judgment rendered, and pending an appeal; which being consummated afterwards, was held to be a good plea in bar to the original judgment. Vide 21 Md., 256 . The evidence set out in the first bill of exception, tended to show that the cause of action, on which the original judgment was rendered, was a promissory note of Forrester, Bankerd & Gildea, for $447; that in the fall of 1866, the firm was dissolved with the usual agreement that one of them should settle all liabilities; subsequently, it was agreed between the appellants and appellees, that Forrester should continue to pay the dues on ten shares of Building Association stock then held by him, until the payments should equal the amount of the appellants’ claim, and in case he did not pay the claim otherwise, to transfer the stock in payment; that one of the plaintiffs, John Downey, agreed to the arrangement, and had since told witness, he had received the money on the stock. Iso date was given by the witness to the agreement, or the declaration of the appellant, Downey, that he had received the money.

The former must have been prior to the judgment; but as the payments were to be made upon calls of the Building Association, from time to time, until they amounted to the sum of the claim, it was for the jury to determine from the circumstances whether the payment to Downey was prior ¹²⁰ or subsequent to the judgment; if the latter, the evidence was proper to support the plea. The evidence embodied in the second exception shows the agreement referred to in the first was in fact made, and that at the time of the agreement, $90 had been paid into the Building Association on the stock; that Forrester continued to pay the sum of $5 weekly, until June, 1868, when the money due on the shares was drawn out by the appellants, they receiving from the Building Association $642, which it was agreed should be applied to the note on which the judgment was obtained. The appellants objected to the admission of the testimony referring to the agreement, as well as the admission of evidence of all payments, made before the date of the judgment sought to be renewed. The agreement was not subject to exception, because, al-. though made before the judgment, it was not, according to its terms, to be executed for a long period to come, extending beyond the date of the judgment, and its proof was a necessary preliminary to the evidence of the payment of the sum of $642, in pursuance of it, to the appellants in June, 1868, long subsequent to the judgment.

None of the payments offered in this bill of exception to be