Moore v. Garrettson

Mason, J., delivered the opinion of this court. To a scire facias to revive a judgment, the defendant pleaded his discharge under the insolvent laws, granted prior to the rendition of the original judgment. The plaintiff demurred to this plea, and the court sustained the demurrer, from which the defendant appealed. Whether or not this plea was good, is the question presented on the present appeal.

It is a well settled principle, that a defendant cannot plead to a scire facias, any matter which might have been set up as a defence to the original action. The reason is, that if it were otherwise there would be no end to the proceedings. Foster's Writ of Scire Facias, 353, (63 Law Lib., 305.) Kemp vs. Cook, et al., Ante, 305. The scire facias in this case recites an absolute uncondi ⁴⁴⁸ tional judgment, from which it would appear that the discharge under the insolvent laws, had either not been pleaded, or if pleaded, had proved an unavailing defence, otherwise the judgment would not have been unconditional.

The discharge, as now pleaded, appears by the averments of the plea to have existed at the time of the rendition of the original judgment, and the plea was therefore manifestly erroneous, and the demurrer to it properly sustained.