
    James J. Person and James T Marye, Trustees of the Bank of Port Gibson, vs. Richard Valentine et al.
    It is a settled rule, that a defendant to a scire facias, to revive a judgment, cannot plead any matter which he might have pleaded to the original action, or which existed prior to the judgment; whether such judgment be obtained by confession, default, or upon plea.
    To a scire facias, therefore, to revive a judgment obtained by the Bank of Port Gibson, in favor of the trustees of the bank, a plea was adjudged had which set up that a judgment of forfeiture had been rendered against the bank, and, prior to the rendition of the júdgment sought to be revived, the hank had assigned the note sued on to certain persons as its assignees.
    In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.
    On the 22d of May, 1843, the bank of Port Gibson recovered judgment in the Claiborne circuit court, against Richard Valentine and John Patterson, for $362.
    At the May term, 1845, judgment of forfeiture was rendered against said bank, and James J. Person and James T. Marye, were duly appointed trustees thereof.
    On the 29th of April, 1848, Person and Marye, as trustees, sued out a scire facias, to revive this in their names against the defendants.
    In this scire facias, the defendants pleaded that the judgment in the scire facias mentioned, was founded upon a promissory note made by them, which note was, prior to and on the 11th of May, 1843, the property of the Bank of Port Gibson ; that, on said last mentioned day, the said Bank of Port Gibson transferred said promissory note to James J. Person and James T. Marye; that, at the time of said transfer, suit was pending on said note in the name of said bank, which was prosecuted after said transfer, and the aforesaid judgment recovered in the name of said bank, but in reality for the use and benefit of said James J. Person and James T. Marye, under said transfer.
    To this plea, the trustees replied, that the said James J. Person and James T. Marye, named in said plea, as the persons to whom said promissory note was assigned, are the same Person and Marye who have sued out the said scire facias to revive said judgment.
    To this replication the defendants demurred, and the demurrer was sustained by the court,, and the scire facias abated.
    The trustees sued out this, writ of error.
    
      J. H. Maury, for plaintiffs in error,
    Cited' Bacon v. Cohea, 12 S. & M. 516; Grand Gulf Bank v. Wood, lb. 482, and insisted that this case was distinguishable from others decided on the subject; in this, that the judgment had been obtained by the bank, and the defence sought to be set up was one which occurred before that judgment, which is not allowable on scire facias. He cited 2 Tidd’s Pr. 1131; 2 Salk. Rep. 2.
    
      J. B. Coleman, for defendants in error, relied on Bacon v. Cohea, 12 S. & M. 524.
   Mr; Justice Clayton

delivered the opinion of the court.

This was a scire facias issued to revive a judgment obtained by the Bank of Port Gibson against the defendants in error. They pleaded to the scire facias that a judgment of forfeiture had been rendered against the bank, and that prior to the rendition of the judgment in this case, the bank had assigned the note sued on to. certain persons as its assignees. A replication was filed- to this plea, to which a demurrer was filed, and which is claimed to be extended to-the plea.

This case differs from Person & Marye v. Daniel Yates, decided at the present term of the court, and those of similar character previously decided, in this, that in those cases, the plea was tendered to the original action, before the rendition of the judgment.; in this it is offered to the scire facias issued to revive the judgment. It is a settled rule that the defendant cannot plead any matter to a scire facias on a judgment, which he might have pleaded to the original action, or which existed prior to the judgment. The rule is the same, whether the judgment was obtained by confession, or default, or upon plea. 1 Robertson, Prac. 585. McFarland v. Irwin, 8 Johns. Rep. 78.

The application of this principle excludes the plea in this case, and makes the judgment of the court below erroneous.

It is therefore reversed, the said plea adjudged to be insufficient, and the cause remanded for further proceedings.

Judgment reversed.  