Fursht v. Overdeer

The opinion of the Court was delivered by Sergeant, J.

Under the statutory enactments, and established practice of this State, the judgment on a scire facias issued to revive the lien of a former judgment, is for some purposes in the nature of a new judgment. The plaintiff recovers a judgment on the scire facias for principal and interest due; which judgment binds lands not bound by the first judgment, such as those purchased by the defendant in the interim. Berryhill v. Wells, ( 5 Binn. 56 ); Clippinger v. Miller, ( 1 P. R. 64 ). But it is not considered as operating to merge and extinguish the original judgment to all intents and purposes, so as to take away the rights of the plaintiff. The original judgment still has its operation and efficacy. The lands bound by the original judgment continue so bound, notwithstanding a further lien may be acquired by the new judgment. So, in the case before us, the judgment entered on the first scire facias, though obtained against the defendant only, without notice to Conrad Fursht, the alleged feoffee, did not so far extinguish the original lien for five years, as to take away the right of the plaintiff to revive it against Conrad Fursht or his alienee, by a new scire facias issued within five years from the time when the original judgment-was entered. He had five years allowed by the Acts of 4th of April 1798, and of 26th of March 1827, from the date of the original judgment, to warn the alienee; and it would be going a great way to take this from him by the application of the doctrine of merger, which in fact has no application to the subject, because one judgment being only of equal degree to a prior judgment, does not, in a legal sense, extinguish it. Here the original judgment was entered on the 18th of February 1834, and this scire facias was issued on the 20th of January 1839, which was within time. The opinion of the court below was therefore correct.

There is no ground for the complaint that the court did not dispose of the plea of nul tiel record, since it appears that the parties afterwards agreed that the cause should be put at issue on the pleas alone of payment, and payment with leave to give the special matters in evidence; and that under them, the defendant might give in evidence any matters of defence legal or equitable, giving the plaintiff notice according to the rule of court. This agreement certainly dispensed with the plea of nul tiel record, and put the cause on the trial of its merits.

Nor do we think the court, after this agreement, ought to have allowed the plea of nul tiel record to be added. They could not, *472 without the consent of both parties, set aside the agreement, under which they had come to the trial of the cause.

It is, therefore, too late now to object that there was no such judgment as that recited by the scire facias, because the judgment by default was in the eye of the law, for the penal sum in the bond, viz: $1500, and the scire facias recites a judgment for $500. This is, at best, a mere clerical error, which the court would have had no difficulty in permitting the plaintiff to amend.

Judgment affirmed.