
    M‘Farland against Irwin.
    
      \a a scir? cías, on a judgment, the defendant cannot plead any mat- . . ter which lie might have pleaded to the original action, or which existed prior to the judgment ; and it makes no difference whether the judgment was entered up by confession on a warrant of attorney, or by default, or on plea; but where the judgment is by confession, the proper remedy is by an application, to the court for relief on motion.
    THIS was an action of scire facias to revive a-iudgJ jo ment in debt for 500 dollars, and 14 dollars and 43 . ' . cents, costs. To the declaration on the scire facias, the defendant pleaded, that the plaintiff ought to have execution for 50 dollars, part of the said debt, with the interest on the said sum of 50 dollars, from the 2ist of November, 1807, being the date of the bond and warrant of attorney; but that for the residue of the said debt, the plaintiff ought not to have his execution against the defendant, because the judgment was given by virtue of a certain bond, conditioned for the payment of 250 dollars, and a warrant of attorney accompanying the same; and that the said bond and warrant of attorney were executed by the defendant, pursuant to an agreement made between the plaintiff and defendant, the 27th of November, 1807, by which the plaintiff agreed to give to one A. E., a power to dispose of a certain piece of land in Ireland, and to advance 50 dollars towards his expenses to Ireland; and if the said A. E. should sell the land, the bond and warrant of attorney were to be security for the repayment of the 50 dollars advanced, and 200 dollars for the land on the return of A. E-; but if the land was not sold, the plaintiff was not to exact payment of the bond; that the plaintiff executed the power, and advanced the 50 dollars to A. E. pursuant to the agreement, but that A. E. was not able to sell and dispose of the land, &c.; and this he was ready to verify, &c. wherefore, &c.
    To this plea there was a demurrer and joinder in demurrer.
    
      Foot, in support of the demurrer,
    contended, that the plea was inadmissible and bad, as nothing could be pleading to a declaration on scire facias, which goes to defeat the original judgment, and which miglit have been pleaded to the original action.
    
    
      Wendell, contra, insisted,
    that the defendant could plead any defence which he could have done in the origiaal action. But here, this being a judgment by confession, on a warrant of attorney, there was no original action, nor any opportunity for the defendant to plead the matter which he has now pleaded. The demurrer admits the fact, that the bond and warrant of attorney were given for certain purposes, which have wholly failed.
    
      
      
        Saund. 72. note. Cro Eliz. 283. Cowp. 727.
      
    
    
      
       10 Mod. 112.
    
   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.  