Moore v. Garrettson , 6 Md. 444 ( 1854 )

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 unconditional 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.

But it appears as part of the case, though not as part of the pleadings, that the defendant’s discharge was in fact pleaded to the original proceeding, and that the first judgment was rendered subject to that discharge. This being true, there was a fatal variance between the judgment actually rendered, and that recited in the scire facias. The first was a qualified, conditional judgment, while that recited in the scire facias, was absolute and unconditional: in other words, there was in fact no such judgment of record, as the one set out in the scire facias, and the defendant, instead of endeavoring to correct the error by pleading the discharge anew, if he had any redress, he should have pleaded nul tiel record. 2 Evans’ Harris, 345.

The office of a scire facias to revive a judgment, is to reinvest it with all the powers, attributes and conditions which originally belonged to it, and which have been wholly or in part suspended by lapse of time, change of parties, or the like. Therefore a judgment rendered subject to a discharge under the insolvent laws, should, when revived, be taken subject to the same condition or qualification, and the discharge, to be availing, need not again be pleaded under the scire facias.

Judgment affirmed.