SCIRE facias to revive a judgment. Plea, that the defendant had formerly been arrested on a Ca: Sa: for the same debt. Demurrer and joinder.
On a scire facias to revive a judgment, if the defendant pleads that he was formerly imprisoned for the same debt, the plea is bad, for want of shewing how he was discharged.
Jocelyn, in support of the demurrer.
The plea relied upon by the defendant, furnishes no legal objection to the present mode of proceeding. It may be true, and yet the plaintiff be entitled to another execution for his debt. To render such a plea available, it is necessary that it should state how, and by what means, the defendant was discharged, after being taken in execution; for it is the plaintiff’s consent alone that will destroy the effect of the judgment; 1 Shower’s Rep. 174. 1 Salk. 271. Barnes, 373. 4 Burr. 2483. 2 Mod. 136.
Duffy, for the defendant.
It is not customary to draw pleas at length, unless required by the opposite *70counsel; but, for the purpose of deciding and the merits of a plea, the court will consider it as, stated at full length, and as containing, all the formal parts without which it would be insufficient on a special demurrer. In this view, the demurrer should be applied to the substance, and not the form of this plea; and then it is sustainable.
By
the Court.
Unless the manner in which a defendant came out of custody, be stated in a plea of this kind, it is to be presumed that he obtained his discharge by some of those means which still leave the judgment in full force. He may have escaped, or the officer who took him may have suffered him to go at large, in neither of which cases would the plaintiff lose the benefit of his execution. The cases cited are conclusive.
Judgment for the Plaintiff.