Starr v. Heckart

Robinson, J., delivered the opinion of the Court. This is an appeal from an order of the Court below, dissolving an injunction and dismissing the bill of the complainant. The bill alleges that Heckart, in 1858, recovered a judgment against the appellant in the Circuit Court for Anne Arundel county, and that in 1859, then being a resident of Baltimore city, the appellant filed his petition in the Court of Common Pleas for the benefit of the insolvent laws, and in the same year received his final discharge. That, in 1866, Heckart sued out of the Circuit Court for Anne Arundel county, a writ of scire facias on said judgment, and after two returns of nihil, a fiat was entered and execution issued to the appellee, Young, sheriff of Harford county, which was levied upon property acquired by the appellant, by his own industry, subsequently to his discharge under the insolvent laws.

The complainant further avers that he has never assumed or promised to pay said judgment since his final discharge, ²⁷¹ and that he had no notice of the scire facias and subsequent proceedings thereunder, until his property was seized under the execution. These averments are substantially admitted by the answer, and the question presented is, whether the complainant is entitled to the relief prayed. A final discharge of an insolvent debtor releases him from all liabilities existing prior to his application. All the law requires is an honest dedication of his property to the payment of his debts, and this being done, it releases him from future liability on account thereof, in order that, thus unembarrassed, he may be encouraged to renewed efforts to gain a livelihood for himself and family.

As the law stood prior to the adoption of the Code, the property acquired by an insolvent debtor “ by descent, gift, devise, bequest, or in a course of distribution,” after his discharge, vested in his trustee, for the benefit of his creditors, and it was to the trustee and the trust fund alone that they were obliged to look for payment. It is clear, therefore, that his plea of final discharge would have constituted a bar to any further proceedings under the scire facias. But it is contended that the two returns of nihil, operate as constructive notice to the insolvent, and that he is as much concluded by the fiat judgment, as if being summoned, he had waived his plea of discharge. To this we cannot agree.

The object of the law in requiring a judgment to be revived by a scire facias, is to give the debtor an opportunity to plead his release or discharge, which is presumed by the lapse of three years. If he has been summoned, and a fiat is entered, he may be concluded, but if he has not been summoned, and no opportunity afforded him to plead his discharge, it would be manifestly unjust to deprive him of a defence which he was not allowed to make. In 2 Tidd’s Practice, 1185, it is expressly laid down, that when a “ party has a release or other matter which he might have pleaded to the scire facias in his discharge, and for want of pleading it, execution is awarded ²⁷² upon a scire feci returned, he is estopped forever, and cannot, by any means, take advantage of that matter. But when execution is awarded on two nihils returned, he may relieve himself by audita querela.” Sty.

Rep., 281, 283; 1 Salkeld, 262; 4 Mod., 314; 1 Strange, 197; 1 Maule & Selwyn, 199; 2 Williams’ Saunders, 148, a (note.) An audita querela, was an equitable action invented for the purpose of relieving a defendant against a judgment or execution, where he had a good defence, but no opportunity of making it. 2 William’s Saunders, 148; 3 Black. Com., 405; Job vs. Walker, 3 Md., 129 . The question then resolves itself into this: had the