HARTZELL against REISS.

IN ERROR.

1808.

Saturday,

March

26th.

THIS

ment to a

to revive a

when he

warrant,

ment was

promised to

HIS was a writ of error to the Common Pleas of North- Under the plea of payampton county. On the 12th of November 1793, Hartzell, as sheriff of North- scire facias ampton county, sold a tract of land which was purchased by judgment, Reiss, who paid him part in cash, and for the residue gave his the defenbill penal with a warrant of attorney. Judgment was confessed dant may on the 26th of August 1795. A scire facias to revive the judg-dence, that ment was brought to April Term 1803, to which Reiss appear- executed the ed, and pleaded payment with leave to give the special matter bond and in evidence. The cause was continued until March 1806, when upon which a motion was made on behalf of the defendant to open the the judgjudgment, for the purpose of letting in a defence, and in the confessed, mean time to stay proceedings on the scire facias. This motion the plaintiff was refused by the court. The scire facias accordingly came cancel it on for trial in August 1806, when agreeably to notice the de- upon an fendant offered one of the witnesses to the penal bill, to prove has occurthat, previous to its execution, it was mentioned by both parties red since the judg that the above mentioned tract of land was subject to a mort- ment. gage to one James Williams, and that the bill was to be given. only to secure the payment of that mortgage; that Hartzell at that time declared, that whenever Reiss should pay off the mortgage, he would cancel the bill; that upon this assurance, Reiss executed it, and that on the 30th April 1802, Reiss had been compelled to pay the mortgage to Williams. To this evidence the plaintiff's counsel objected, but the court overruled the objection; whereupon a bill of exceptions was tendered and sealed, which was now brought up by the writ of error.

Sitgreaves and Ingersoll for the plaintiff insisted that the evidence was inadmissible upon this principle, that the defendant cannot plead any matter to a scire facias on a judgment, which he might have pleaded to the original action; 2 Tidd's Practice 1046; and that its being a judgment by confession did not affect the principle. Middleton v. Hill (a). In Bush v. Gower (b) which was a scire facias on a judgment by warrant

(a) Cro. El. 588. VOL. I.

(b) Cas. Temp. Hardw. 223.

20

event which

1808. of attorney, to which the defendant pleaded the statute of HARTZELL usury, Hawkins for the defendant relied on that ground, and said that the reason why the plea was refused in Middleton v. Hill, was because it might have been pleaded before the judg ment; but the defendant in his case had never had an opportunity to plead it. Lord Hardwicke however said, that the true way was to move the court to set aside the judgment, but that the plea could not be maintained. So in Cooke v. Jones (a), where the court had granted a rule nisi to vacate a judgment confessed, and to stay proceedings on the scire facias, upon an allegation that the consideration upon which the warrant of attorney was obtained was usurious, Lord Mansfield said, "the defendant "is without relief unless the court interposes; he can plead "nothing in bar of the scire facias, which he might have "pleaded in the original action;" and the court, therefore, ordered the rule to be enlarged, and an issue to try whether the contract was usurious. Here the evidence went to shew that nothing was ever due on the bond, and it would of course have been competent to the defendant to shew it in an action on the bond. The proper mode was by motion; and if the defendant deferred that for ten years, he has no cause to complain.

Rawle for the defendant answered that neither the principle nor the authorities applied to the case. In Middleton v. Hill, and in Bush v. Gower, the plea was the statute of usury. It went to the original contract, which might have been shewn upon the action, and therefore the only way of getting at it, was by a motion to vacate the judgment, as in Cooke v. Jones. But the object of the evidence here, was to shew an equitable defence, arising out of facts which did not exist at the time the judgment was entered, and could not have been pleaded to the original action, even if action had been brought. Of course the rule of pleading is out of the question. The only point is, whether upon a scire facias, a defendant may not give in evidence facts arising since the judgment, to shew that the plaintiff is not entitled to execution. This is the first opportunity we have had, not because the judgment was confessed, but because the defence did not exist till since that time. Our motion to the court was delayed by the plaintiff, who suffered his judg

(a) Coup.727.

ment to sleep eight years; and it being to their discretion, we 1308. were forced to submit; but we are not confined to that applica- HARTZELL tion, either by the rules of law, or the practice in Pennsylvania.

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

V.

REISS.

1808.

HARTZELL

V.

REISS.

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 judgment.

Judgment affirmed.

Saturday,
March 26th.

The day on which the

ven, is com

IN

LANE against SHREINER.

N this case a verdict was given for the plaintiff in the Circuit Court of Lancaster county on Tuesday; and on the verdict is gi· Saturday following, a motion was made by the defendant for puted as one a rule to shew cause why there should not be a new trial. of the four That Court however being of opinion that the motion was too late, because the day on which a verdict is given should be included in the four days, refused the rule; and the defendant appealed to this court.

days which

are allowed

to move for a new trial.

The decision of the Circuit Court was affirmed without argument, upon the authority of Burrall v. Dublois. (a)

Hopkins for plaintiff, E. Tilghman for defendant.

(a) 2 Dall. 229.

1808.

CALHOUN for the use of FITZIMMONS and another Saturday, March 26th. against The Insurance Company of Pennsylvania.

COVENANT on a policy on goods on board the brig John, If a policy

underwrit

ten in Phi

Barker master, from Charleston South Carolina to Cadiz, 15000 dolls. at 15 per cent. The foot of the policy contained ladelphia the following memorandum: "This insurance is declared to be contains a warranty of "made on sugars not discharged from on board the above ves- American "sel at Charleston, where she brought them from Havanna. Property "Warranted by assured to be American property, to be proved, if required in "if required, in this city, and not elsewhere."

to be proved

this city and not else

where," the

assured is entitled to

truth of his

Upon the trial of the cause before SMITH J. at Nisi Prius in July 1807, the material facts in evidence were these. On the 8th June 1800, the John sailed upon the voyage insured from vindicate the Charleston, where at that time the blockade of Cadiz was not warranty not known. On the 16th July as the vessel was steering for Cadiz, only against a foreign and at no great distance from that port, the captain was brought condemnato by the Hector, one of the squadron blockading Cadiz under tion as enemies' proAdmiral Bickerton, was warned not to enter Cadiz on account perty, but of the blockade, and was taken on board the Hector with his against a condemnapapers. On the same day he was carried on board the admiral's tion for any ship, but was afterwards returned to his own vessel, from which act or omisthe mate and four hands were taken out, and an officer and eight agents dumen put on board of her with orders to stay by the fleet. On ring the voyage, by which the 26th July the brig's papers were indorsed "warned not to the neutrali"enter Cadiz or St. Lucar as they are blockaded, but has per-ty แ mission to go to any other port. Swiftsure, July 26th 1800. forfeited. "B. Hallowell, Captain of the Swiftsure, one of the ships of the A vessel "blockading squadron;" but there was no evidence of these pa- Charleston pers having been at any time in Captain Barker's possession for Cadiz after the 16th July, or that he saw them after that date until notice of its being in a

sion of his

to have been

sails from

without any

state of

blockade, and within a short distance of the port is brought to by the blockading squadron and warned not to enter on account of the blockade; the mate and four hands are taken out of her, and an officer and eight men put on board with orders to stay by the fleet. Ten days afterwards the captain is taken out of her and carried to the Admiral of the squadron who says to him, "We have thoughts of setting you at liberty, and in case we do, what port will you proceed for?" The captain replies, "In case I receive no new instructions I shall follow my old ones." "That I suppose will be for Cadiz?" Certainly, unless I have new orders." This is not an attempt to enter, and therefore no breach of blockade. Quare. Whether any declaration of an intention to enter, amounts to an attempt?

"