Washington Booth v. Campbell

Bartol, J., delivered the opinion of this court: This case was before this court, on the plaintiff’s appeal, at December term 1855, and will be found reported in 8 Md. Rep., 107 , when this court reversed the judgment of the court below, and remanded the cause. On the former appeal it was decided that the matters of defence alleged and relied on by the defendant, could not avail in support of a motion to quash the ivrit of scire facias, but if available at all must be presented by pica. When the case was remanded to the Superior Court,, the defendant filed two pleas, to which the plaintiff demurred generally, and that court having given judgment, on the demurrer, in favor of the plaintiff, the case is now brought here on appeal by the defendant below, and presents for our consideration the question of the sufficiency of the defendant’s pleas. The first plea alleges that tire plaintiff, before issuing the scire ficias in the case, caused to be issued a fieri facias on the judgment, which was levied upon the goods, chattels, lands and tenements of the defendants, that the sheriff made return thereof, together with a schedule of the property levied upon, that the said writ of fieri facias was no further executed, and that the same has not been quashed, countermanded, nor further proceeded in, but remains in full force and effect, &c. ⁵⁷⁴ We think this is a good plea to the scire facias, not upon the ground that the levy of an execution amounts to a satisfaction of the judgment, but because the plaintiff is not entitled to have two executions upon the same judgment at the same time.

It would be competent for the plaintiff, by taking issue on the plea or on replication, to show that the execution has been quashed, countermanded or abandoned, or that only part satisfaction has been had under it, and to obtain another execution for the residue, or maintain a scire facias for the renewal of the judgment. See Sasscer vs. Walker’s Executors, 5 G. & J., 109. Green vs. Burke, 23 Wend., 490 . 3 G. & J., 384 . 3 Gill, 346 . We are also of opinion that the matters alleged in the second plea are a valid defence to the scire facias, as showing an accord and satisfaction of the judgment by R. B. Fitzgerald, and that it was error in the court below to sustain the demurrer to the second plea.

The judgment was recovered against John B. Fitzgerald, Richard B. Fitzgerald, and the appellant, who were co-partners liable jointly on the judgment. A release or discharge of one of the defendants would operate as a discharge of all. This principle is so well settled as to require no authorities to be cited in its support. If the matters alleged in the plea are sufficient in law to operate a discharge of R. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant; for the just and sufficient reason, that he ought not to be compelled to pay the money, without being entitled to claim contribution from the other defendants, which he cannot do if they have been discharged from the judgment by the act of the plaintiff.

When this case was before this court on the former appeal, several of the facts, which are stated in the second plea, were relied upon by the defendant, in support of his motion to quash; it being then contended that the