108 Pa. 69 | Pa. | 1885
delivered the opinion of the court January 5th, 1885.
The question involved in the first .four specifications of error is whether the offers of evidence therein recited were rightly rejected. In substance, the offers were to prove that at the time the judgment, which forms the basis of this action, was confessed, it was understood and agreed by and between
There is nothing on the record restricting in any way the right of plaintiff to revive the judgment or have execution thereof. This is conceded by defendant; but he alleges the judgment was confessed on the faith of plaintiff’s assurance and verbal agreement that in the event of his obtaining, in due form, his discharge as a bankrupt, the judgment should not be enforced against him. In view of the fact that the
The purpose of the offers under consideration was not to assail the validity of the judgment as originally confessed, or to introduce any matter of defence that may have existed prior thereto, but to show that by reason of what has occurred since, viz.: defendant’s discharge in bankruptcy, the plaintiff is not entitled, according to the terms of his alleged agreement, to have execution of the judgment.' In this-respect the case is similar in principle to Hartzell v. Reiss, 1 Binney 289, in which it was held that under the plea of payment to a scire facias to revive a judgment, the defendant might show that when he executed the bond on which the judgment was confessed the plaintiff promised verbally to cancel it upon an event which occurred after the judgment was entered.
We think the testimony offered by the defendant should have been received, and if the evidence of the alleged agreement proved to be sufficiently clear and precise to justify its submission to the jury the question should have been left to them under proper instructions.
In refusing to charge as requested in defendant’s point, the learned judge followed the ruling of this court in Wise’s Appeal, 3 Out. 193, in which it was held that in an action on a judgment obtained after the defendant therein was adjudicated a bankrupt, and before his discharge, upon a debt provable under the bankrupt law, the original debt is merged in the. judgment, and the subsequently granted certificate of discharge is no defence thereto. The judgment on which this scire facias issued possesses all those distinctive features. It was confessed by defendant, after his adjudication and before his discharge as a bankrupt, for a provable debt contracted
If defendant had succeeded in introducing testimony tending to prove the allegations of fact embodied in the offers rejected by the court, there might have been a question of fact for the consideration of the jury; but as the case stood there was no error in charging as complained of in the sixth specification.
Judgment reversed, and a venire facias de novo awarded.