6 Whart. 468 | Pa. | 1841
delivei’ed the opinion of the court.
The errors assigned, taking exception to the writ of scire facias, do not appear to be sustained in point of fact, and therefore require no further notice. The circumstance of its being stated to be for the use of D. W. Hulings alone, when, by the assignment filed in the prothonotary’s office, of the judgment, it appears to have been assigned to him only in part, is an immaterial matter.
The first two errors, which relate to the rendition of the judgment by the District Court in favour of the plaintiffs below against the plaintiffs in error, who were the defendants there, present the same question, and are the only.errors which demand our particular attention as having any thing in them. The court undertook to render or direct the judgment to be entered in this case, under the act of 20th of March, 1835, providing, inter alia, that “in all actions of scire facias, on judgments, &c., it shall be lawful for the plaintiff/on or at any time after the third Saturday succeeding the several return days thereinbefore designated, on motion to enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant should previously have filed an affidavit of defence, stating therein the nature and character of the same.” An affidavit of defence, made by one of the defendants below, was filed here in due time ; but the plaintiffs excepted to the sufficiency of it, because, as they
The affidavit of defence, in the second place, contains an allegation that the said Keckler & Forney have sued out a writ of foreign attachment, at Lewistown, for their use, founded upon the judgment, upon which the scire facias is sued out here, against the said Hugg and Bell, which is still depending and undetermined. We can perceive no sufficient reason why such writ of foreign attachment should preclude the said Keckler & Forney from proceeding at the same time by scire facias upon the same judgment to recover the amount thereof. It may be that the proceeding by foreign attachment is irregular, and if so, relief may be had in the court whence it issued; but it does not appear to be a good ground of defence here.
In the third place, however, the affidavit does, as we conceive, set forth the nature and character of a defence, which, if made out-on the trial of the cause, may bar the plaintiffs’ right to a recovery. As to this third ground of defence, the statement in the affidavit is,
It may be proper, however, to remark here, that if the debt mentioned in the third ground of defence, as owing by Keckler & Forney to the defendants, be the same, for which they have a suit pending in the court at Lewistown, Pennsylvania, on an appeal from the award of arbitrators, which is mentioned in the first part of their affidavit, it cannot be offered by them in this action by way of defence, as a set-off against their claim on the judgment, for the reasons stated above, in noticing the first ground of defence. The judgment is reversed, and a venire de novo awarded.
Judgment reversed; and a venire de novo awarded.