Kemp ex rel. Kemp v. Cook

Tuck, J., delivered the opinion of this court. This record is submitted on the notes of the appellant. It appears that Kemp and Buckey recovered judgment against L. S. Cook and Hiram Ridgely, and that they after-wards, with two sureties, confessed a supersedeas judgment before justices of the peace. The plaintiff then sued out a sci. fa. against all these parties, to revive the judgment, Ridgely filed a petition in the sci. fa. cause, alleging that he was under the age of twenty-one at the rendition of both these judgments, and that he was merely surety for L. S. Cook, and prayed that the judgments might be stricken out, and the proceedings under the sci. fa. staid; The plaintiff showed cause against the rule, but the court directed the judgments to be stricken out and set aside, and that the cause be reinstated on the trial docket, to be tried anew. From this ruling of the court the plaintiff appealed. We take the law to be well settled, that in answer to a sci. fa., the defendant cannot set up any matter which might have been relied on as a defence to the original action. 1 Chitty Pl., 485, (Ed. 1840.) Foster’s Law of Sci. Fa., 353, (73 Law Lib., 305,) and the cases there cited. McFarland vs. Irwin, 8 Johns., 77. Earle vs. Hinton, 2 Strange, 732. Bush vs. Gower, 2 Strange, 1043. We express no opinion as to the proper remedy of the defendants, as the question is not raised on this record, and has not been argued on the part of the appellees, except that, if there be any, it must be prosecuted in the original case. Judgment reversed and procedendo awarded.