Cochran v. Shields ( 1855 )

The opinion, of the court was delivered March 12, 1855, by

Woodward, J.

— This was a scire facias to revive a judgment, and Cochran, one of the defendants, put in an affidavit of defence and a supplemental affidavit, without suggesting that the judgment was not for his own proper debt, and without alleging that he had paid a farthing on it. He swears that he had reason to believe his co-defendant, who makes no defence whatever, had paid it, and that he concealed from him the evidence of the fact. Suppose it were so. Morton, or even Perry, may have paid the judgment to Shields, and taken an equitable assignment for the purpose of enforcing it against Cochran, and if it was his proper debt, he is still liable. If he was not the principal debtor, why does he not allege it ? He must be presumed to have sworn as hard as he could, and yet he avers no fact which tends to show that he had any defence against a judgment which he was bound to pay. Perry alleged no defence. Cochran was not called on to put in a defence for Perry, but for himself, and having none to allege, judgment was entered against him, and it is accordingly affirmed.