McCullough v. Franklin Coal Co.

21 Md. 256, 1864 Md. LEXIS 108

• Court: Court of Appeals of Maryland
• Decided: March 24, 1864
• Status: Published

Opinion

Bowie, C. J.,

delivered the opinion of this Court:

The appellants sued out a writ of sci. fa. on the 15th December 1859, to revive a judgment obtained on the 20th October 1856, against the appellees.

Several pleas were filed, on some of which issues were joined, but the fourth special plea, which is in the nature of a plea of accord and satisfaction, setting forth facts in bar of the further execution of the judgment, was demurred to by the appellants, the plaintiffs below, which demurrer being overruled and judgment thereon for the defendant, the plaintiffs appealed. The appellants contend that the only pleas in bar to a scirc facias, are “Nul tiel record,” and payment;” the latter of which was given by the Statute 4 Anne, ch. 16, sec. 12.

The command of the- writ is, to show cause why execution should not be had. The writ of “scire facias quare executionem non,” is classed among actions, and a release of all actions is held to be a good bar to the writ. That it may be barred by pleading matters subsequent to the judgment, partly in yws and partly of record, appears from the cases of Harden vs. Campbell, 4 Gill, 29, and Campbell vs. Booth, 15 Md. Rep., 569.

(Decided March 24th, 1864.)

In tlie last mentioned case, the second plea, to the sci. fa. alleged matters in pais, resembling strongly the facts pleaded in bar in the present. A demurrer was filed by tbe plaintiff and sustained by the Court below; upon appeal, the judgment was reversed, tbe Court declaring: “We are also of opinion, that the matters alleged in the second plea, are a valid defence to the scire facias, as showing an accord and satisfaction, and that it was error in the Court below to sustain the demurrer to the second plea.”

Although it does not appear that tbe authorities now-relied on against the plea of accord and satisfaction, were cited in the case of Campbell vs. Booth, yet the decision is so conformable with the great purposes of the Vmi, and sustained by analogy to other pleas of acknowledged validity in this State, and consonant with, justice, that we are not disposed to disregard the authority of that decision. The specific objections in the demurrer in this case, are rather for informalities of averment, than defects in substance. The agreement to compromise the suit then pending in the Court of Appeals, for valuable considerations, in satisfaction and discharge oí tbe judgment of the appellants, the performance of all tbe conditions on the part of tbe appellee, including tbe payment of the money agreed on, is distinctly averred. Tlie omission of the averment, that the acts done on the part of the appellee in satisfaction, were received and accepted in satisfaction and discharge, was the omission of what was necessarily implied in the preceding averments of the plea.

Deeming the plea demurred to, sufficient in substance, we concur with the Court below In overruling the demurrer, and affirm the judgment.

Judgment affirmed.