
    Cardesa against Humes and another.
    Monday, March 22.
    In no case, and under no circumstances, can the merits of the original judgment be inquired into by the defendant on a scire facias upon that judgment, so as to enable him to set up a defence which he might have used in the original suit.
    THIS case was tried before Duncan J. at Nisi Prius, in February last, and a verdict found for the plaintiff. A motion was now made, by the defendants, for a new r J ' trial.
    
      Cardesa, the plaintiff,
    . . . ,, had brought a suit against the defendants, Humes and Etting, on a promissory note, drawn by the defendants in favour of Malcolm McDonald, dorsed by him to the plaintiff. In that suit, the declaration was filed in April, 1812, the defendant pleaded in May, 1812, and on the 14th December, 1812, judgment was entered for want of an affidavit of defence. The present was a scire facias to revive that judgment, brought to July Term, 1815. The defendants pleaded payment, with leave, Sec,, and gave notice to the plaintiff, previous to the trial, that under their plea, evidence would be given, that some time in 1812, an arrangement was made by, or on behalf of, the defendants, or one of them, with the plaintiff, whereby it was agreed to discharge the defendants from all personal responsibility as to the note on which the original action was brought, and all other the defendants’ notes held by the plaintiff, in consideration of the receipt by the plaintiff of three notes drawn by John Humes, and indorsed by Joshua Lippincolt„ and of the right of the plaintiff to claim and receive a dividend under the defendants’ assignment, and of the further agreement or understanding, that the plaintiff should be at liberty to pursue certain coffee in the hands of Savage and Dugan, upon which coffee the plaintiff asserted the existence of a claim, by reason of the note for which the original action was brought, without any interference on the part of the defendants j' it being at the same time understood, that the defendants should do no act to interfere with, or prejudice the claim or pursuit of the plaintiff, upon or against the said coffee; and that the suit instituted for the recovery of the said coffee was not determined at the time judgment was entered.
    The defendants were auctioneers, and M ‘Donald, for the purpose of raising money, pledged to them a quantity of coffee, and received their notes, on one of which the original suit was founded, which he indorsed to the plaintiff. This • coffee came to the possession of Savage and Dugan; and the plaintiff had instituted a replevin for it against Humes and Etting, and Savage and Dugan, which was still pending. The agreement referred to in the notice, was made in April, 1812, after the replevin was instituted.
    
      Tilghman and J. R. Ingersoll,
    
    in support of the motion for a new trial, admitted the general rule to be, that no evidence can be given as a defence to a scire facias, which might have been given in the original action; but alleged, that they could not have given this evidence in the original action, without a violation of their agreement not to do any thing to prejudice the plaintiff’s suit against Savage and Dugan. The* agreement, moreover, did not méan to destroy the note, but only to take away the personal responsibility of the defendants. Obtaining a judgment was perfectly compatible with the agreement, provided no execution was sued ,Out; and it is not until the scire facias, that the defendant can shew cause why execution shall not be had. This, therefore, is the proper time to plead it. They further submitted, - that the Court, on motion, would have opened the original judgment, but they were unacquainted with its being entered .-till it was too late to make the motion. They were, therefore, taken by surprise.
    
      
      Wallace and Binney, for the plaintiff,
    observed, that the present case formed no exception to the general rule, as set-tied by the English law,, and recognised in Nace v. Hollenbach,
      
       and M'Farland v. lrwin. This agreement having been made before plea pleaded in the original suit, might have been pleaded in bar there. The pleading of the agree'ment would not have prejudiced the claim against the coffee, so far as appeared by any thing stated in the notice. According to the defendants’ construction, the agreement was a fraud on Savage and Dugan, and therefore the Court would not admit it as a defence. If it would have been a violation of the agreement to make this plea in the original action, it is equally so to plead it now. But, in truth, it would not have been a violation of the agreement; it was intended as a discharge from the original suit. The agreement to do no act to prejudice the plaintiff’s claim against the coffee, can never be construed to estop the defendants from defending themselves. It could not have been intended to keep the agreement secret, because, by virtue of it, the plaintiff was to receive a dividend of the effects of the defendants from their assignees.
    
      
       1 Serg. & Rawle, 540.
    
    
      
       8 Johns. 77.
      
    
   The opinion of the Court was delivered by

Gibson J.

The agreement set up at the trial was entered into prior to the judgment which this scire facias is brought to revive, and might have been urged as a defence to the original suit. The defendants contend, there are peculiar circumstances exempting this case from the operation of the rule which excludes, as a defence to a scire facias, all matter that might have been taken advantage of in the original suit; because, as they say, the agreement could not have been used as a defence without violating it; and because the judgment was obtained by surprise. Nothing to justify such a conclusion appears, either in the agreement set forth in the special matter, or in the facts disclosed in the argument. M'-Donald, for the purpose of raising money, pledged a quantity of coffee with the defendants, who were auctioneers, and received their notes, (on one of which the original suit was founded,) which he discounted with the plaintiff. The coffee, under an arrangement, the terms of which do not appear, came to the possession of Savage and Dugan, against whom the plaintiff, in MiDonald,s name, instituted an action of replevin for it, which is still pending. For the purpose of prosecuting that suit with effect, and in consideration, among other things, that the defendants would not interfere with, or ¿0 any act to the prejudice of, his claim, the plaintiff agreed to discharge them from all personal responsibility on account of the notes. Now, there was nothing in the nature of this agreement that required secrecy. McDonald, in whose stead the plaintiff stands as to the replevin, could recover against persons who obtained possession of the coffee under the defendants, only by shewing that the notes, for the payment of which it had been pledged with the drawers as a security against their eventual liability, were discharged. While their responsibility continued, the defendants, and every one in possession under their authority, had a special property in the coffee, and might retain it against M-Donald, and every person claiming through him. The plaintiff could have no claim to the coffee merely from the circumstance of being the holder of the notes, the discharge of which, so far from prejudicing hip claim in the name of M'-Donald, was absolutely necessary to its success. But, were it otherwise, it would be an unreasonable construction to bind the defendants to silence, while a judgment on a fictitious claim was'demanded against them. Such an agreement could be founded only on a fraud meditated against third persons; and a judgment obtained pursuant to it, though void as to every one else, would be conclusive between the parties to the fraud. Such, however, was not the intention in the present case ; and as soon, therefore, as the plaintiff evinced a disposition to pursue his claim on the notes, by ruling the defendants to plead, and to file an affidavit of defence, they ought to have set up the agreement as a discharge. But I take the law to be, that in no case, nor under any circumstances, can the merits of the original judgment be inquired into for the purpose of furnishing a defence to a scirC facias. Where a judgment has been obtained surreptitiously, it will be set aside on motion: and where it is suffered by confession or default, if there be a defence of which the party was ignorant, or which arose afterwards, the Court, to give him the advantage of it, will open the judgment. But in no other way can the equitable power of the Court be interposed. In this proceeding the defendant must deny the original judgment altogether, or shew it has been satisfied since it was rendered; for down to that point of time it is conclusive. There must be judgment for the plaintiff.

New trial refused.  