
    E. Anderson vs. John Gage.
    A partial payment made on a judgment, but not credited, cannot be ' pleaded as a payment, to a scire facias, to revive the judgment.
    It constitutes an independent demand, which the defendant in execution may avail himself of by way of set off, or by action of assumpsit against the plaintiff, where the former has been compelled by him to pay the whole debt.
    The circumstance of the judgment having been revived for the whole amount, between the time of such payment and the action brought, was held insufficient to prevent the recovery of the defendant in execution.
    BEFORE EABLE, J., AT UNION, FALL TERM, 1837.
    This was a summary process to recover back money paid on an execution. Gage had an execution against Anderson, lodged previous to the year 1827, when the alleged payment was made by the delivery of a set of blacksmith’s tools at. a stipulated price, to be credited on the execution. This was denied on the part of Gage, who afterwards had them levied on under the execution, and sold. In 1832, Gage renewed the judgment and execution by scire facias, which was served personally on Anderson and no defence made. The judgment was revived for the whole amount, and it was afterwards collected from Anderson. This action was then brought to recover back the payment alleged to have been made on the former execution. The presiding Judge held the plaintiff barred by the recovery on the señe facias, and decreed for the defendant. The plaintiff appealed and moved to reverse the decree, on the ground that the revival of the judgment was not a bar to the plaintiff’s right of recovery.
    
      Irby, for the motion.
    Dawkins, contra.
   O’Neall, J.,

delivered the opinion of the Court.

The general rule is, that money cannot be recovered back which would be a defence to a former action. Marriott vs. Hampton, 7 T. R. 265; 2 Es. Rep. 546; Brown vs. McKinally, 1 Es. Rep. 279. This case does not come within it. For here the proof is, that Anderson sold to the defendant a set of blacksmith’s tools for a certain sum, which was to be credited on the judgment on which the sci. fa. was brought. This the plaintiff (the present defendant) did not do — and therefore Anderson had the right to consider it a cross demand against the defendant. Indeed, in strictness, it could not have been pleaded. The Act of the Legislature, 2 Brev. Dig. 117, sec. 8, provides “ where any action of debt shall be brought on any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar.” To plead payment under this Act, it ought to be general and not partial. To a scire facias, partial payment would be no plea. “ A plea o’f payment to an action on a record, is not good at common law; by 4 Anne, ch. 16, s. 12. payment may be pleaded to an action on a judgment, if the whole judgment be satisfied.” 2 Saund. Plead. and Ev., tit. Payment, 713. The same construction must be given to our Act. They might be set off: for as against the judgment when not credited they are merely demands on the part of the person paying, for so much money had and received to his use; which, under the rule governing the action of as-sumpsit for money had and received — that if a man receive money, which ought to be paid to another, or to be applied to a particular purpose, but to which he does not apply it— may be recovered. Com. on Con. 4.

The motion is granted.  