Cheatham v. Boykin

1 N.C. 289

• Court: Supreme Court of North Carolina
• Decided: July 15, 1811
• Status: Published

Opinion

The opinion of the Court was delivered by

Hall, J.

If that part of the plea, which states, that no debt was due by the administrator, stood as a distinct plea to itself, and was to be allowed, it would be incumbent on the plaintiff to prove his demand over again upon the sci. fa. after having already obtained judgment against the administrator, and that too, merely at the suggestion of the defendant, which ought not to be allowed. But when the defendant, in addition to that suggestion, states that the judgment was fraudulently obtained, he places the burthen of proof on himself, and the judgment remains good until he verifies his plea, which if he does, judgment ought not to be given against him on the sci. fa. The plea appears to be indivisible and in substance this—that the judgment against the administrator was obtained through fraud, which he may substantiate, if he can. The demurrer should be overruled. The objection, that a sci. fa. cannot issue from a decree on a petition, we think unfounded: it is convenient and within the spirit of the act that gives the sci. fa. on the bonds of distributors when their shares have been delivered over.