McCullough v. Franklin Coal Co.

Bowie, C. J., delivered the opinion of this Court: The appellants sued out a writ of sci. fa. on the 15th December 1859, to revive a judgment obtained on the 20th October 1856, against the appellees. Several pleas were filed, on some of which issues were joined, but the fourth special plea, which is in the nature of a plea of accord and satisfaction, setting forth facts in bar of the further execution of the judgment, was demurred to by the appellants, the plaintiffs below, which demurrer being overruled and judgment thereon for the defendant, the plaintiffs appealed. The appellants contend that the only pleas in bar to a scirc facias, are “Nul tiel record,” and payment;” the latter of which was given by the Statute 4 Anne, ch. 16, sec. 12. The command of the- writ is, to show cause why execution should not be had.

The writ of “scire facias quare executionem non,” is classed among actions, and a release of all actions is held to be a good bar to the writ. That it may be barred by pleading matters subsequent to the judgment, partly in yws and partly of record, appears from the cases of Harden vs. Campbell, 4 Gill, 29 , and Campbell vs. Booth, 15 Md. Rep., 569 . ²⁶³ (Decided March 24th, 1864.) In tlie last mentioned case, the second plea, to the sci. fa. alleged matters in pais, resembling strongly the facts pleaded in bar in the present. A demurrer was filed by tbe plaintiff and sustained by the Court below; upon appeal, the judgment was reversed, tbe