M'Farland v. Irwin

8 Johns. 77

Opinion

Per Curiam.

The plea is inadmissible and bad. It is a settled rule, that the defendant cannot plead any matter to a sci- fa. on a judgment which he might have pleaded to the original action, or which existed prior to the judgment. A judgment entered up upon a warrant of attorney is a judgment by confession, and the cases of Bush, assignee of Jones, v. Gower, (Cases temp. Hardwicke, 220.) and of Cooke v. Jones, (Cowp. 727.) were cases of a sci. fa. upon a judgment entered by confession on a warrant of attorney.' The rule is the same whether the judgment was obtained by confession, or default, or upon plea. The remedy in these cases of judgment by confession is by application to the court upon motion, as was done in the case of Jackson v. Mosely, cited by Lord Hardwiche, and in the case from Cowper.

Judgment for the plaintiff.