Shupp v. Hoffman

Briscoe, J., delivered the opinion of the Court. The appellant in this case, Catharine A. Shupp, executed a promissory note on the 25th day of June, 1811, to the appellees, for the sum of $350; and on the 21th day of June of the same year a judgment by confession for the amount of the debt and interest was entered, according to the written assent and agreement of the plaintiffs and defendant. There was no effort made to enforce the payment of this judgment until the 24th day of September, 1888, more than eleven years after ³⁶⁰ its rendition, when a scire facias was issued by order of the plaintiffs. To the scire facias the defendant pleaded her coverture; that at the time of the execution of the obligation, and of the recovery of the judgment, she was a married woman, and that her husband was not joined in the suit.

The appellees then filed three replications alleging, first, that although being a married woman at the time of the execution of the note upon which judgment was rendered, she was living apart from her husband, under articles of separation; the second, that the debt for which said note was given was contracted by her in and about her own business and trade, in which she was engaged apart from her husband; and third, that 'she was engaged in business dealings with the plaintiffs on her own behalf as a feme sole trader, and that the said note in this case was part of said dealings. The defendant demurred. The- Court sustained the demurrer to the first replication and overruled it as to the second and third. There were four prayers offered at the trial; the first, asking the Court to instruct the jury that the plaintiffs are not entitled to recover against the defendant as a married woman, nor to have judgment fiat, was rejected, The defendant excepted to the rejection of this prayer, and the verdict being for the plaintiffs, the defendant appealed.

This case being before the Court upon demurrer, the only question presented on the appeal, necessary for us to consider, is whether it was competent, under the pleadings, for the appellant to interpose the plea of coverture to the writ of scire facias issued on an absolute unconditional judgment. The law is well settled that in answer to a scire facias the defendant cannot set up any matter which might have been relied on as a defence to the original action; ³⁶¹ otherwise there would be no end to litigation. Downey vs. Forrester, et al., 35 Md., 118 , Foster on Scire Facias, (L. L.,) 353. The scire facias in this case sets forth an unconditional judgment, and there is nothing upon the face of the Original jmoceedings, or the writ itself, which discloses the fact of coverture.

To allow similar pleas would destroy the certainty and finality with which judgments are now accepted in this