Hartzell v. Reiss

Tilghman C. j. delivered the opinion of the court. The plaintiff in error, who was plaintiff in the court below, brings this case before the court on a bill of exceptions. The plaintiff’s objection to the admission of the evidence is founded on this principle, that nothing can be pleaded to a scire facias in bar of execution, which might have been pleaded to the original action. The principle is undoubtedly true; but how does it bear upon the case before us? The original judgment was regularly entered; nor had the defendant any thing to say in bar, if the plaintiff had brought suit on the obligation in the usual manner, instead of entering judgment by confession, by virtue of the warrant of attorney annexed to it. The cases cited by the plaintiff’s counsel, differ from this in one material circumstance. In those cases, the matter relied on by the defendant would have been a bar to the action, at the time the judgment was entered. In this case, the defendant had no plea of which he could avail himself, till near seven years after the entry of the judgment. Why then, when he is called on to say whether he has any thing to allege against issuing execution, may he not shew, that in consequence of something which has. taken place since the judgment, the plaintiff’s right to an execution no longer exists? It is to be remarked, that an equitable defence may in this state be pleaded in a court of law, which is not the case in England. I very much doubt, whether there the defendant could have had any relief in a court of common law. But certainly, if he had filed his bill in equity, and made good the matters alleged by him in this bill of exceptions, he would have been relieved from the judgment. Upon this ground, therefore, it appears to me that he may plead these equitable matters to a scire facias on the judgment. It has been objected, that his proper remedy was by motion to the court below, to open the judgment; but supposing that he might have had that remedy, it does not follow that he may not avail himself of the same defence on a plea to the scire facias. And this latter mode ought not to be discouraged by this Court; because the parties labour under a very great difficulty in applications to the court [292] below, by motion. Those motions being an appeal to the discretion of the court, I do not know that the decision can be questioned on a writ of error. Upon the whole, I am of opinion that the evidence was properly admitted in the court below, because it tended to prove matters in bar of the plaintiff’s execution, which had arisen after the iudement. Judgment affirmed.