Chatham v. Boykin, 6 N.C. 301, 2 Mur. 301 (1813)

June 1813 · Supreme Court of North Carolina

6 N.C. 301, 2 Mur. 301

Arthur Chatham v. Lucy Boykin.

J- From Northampton.

Ex’r & Adm’r. To a sci. fa. upon a refunding bond, Defendant pleaded that the debt recovered against the Administrator was no* justly due, and that the Administrator fraudulently and collusively with the Plaintiff, confessed the judgment.

The burthen of proof lies on the Defendant to verify his plea by proof pf the fraud, othcrwsse judgment must be rendered against him bn the sci. fa.

After a decree on a petition, a sci. fa. may issue on the refunding bonds given by distributees ; it is within the spirit of the act giv. ing the sci. fa.

This was a sci. fa. upon a refunding bond given by the Defendant, to which he pleaded, that the judgment stated in the sci. fa. to have been recovered against the Administrator, was not justly duej and that the Administrator fraudulently and in collusion with the Plaintiff, suffered the judgment to be entered against him by confession. To this plea there was a demurrer, and issue joined thereon.

Hah, Judge,

delivered the opinion of the Court:

If that part of the plea which states, that no debt was due by the Administrator, stood as a distinct plea to itself and was to be allowed, it would be incumbent on the Plaintiff to prove his demand upon the sci. fa. after having obtained judgment against the Administrator, and that too merely at the suggestion of the Defendant, which ought not to be allowed. But when the Defendant, in addition to that suggestion, states that thejudg-incut was fraudulently obtained, he places the burthen of proof on himself, and the judgment remains good, un-till lie verifies his plea; upon doing which, judgment ought not to be entered against him on the sci.fa. The plea appears to be indivisible, and in substance this, that the judgment against the Administrator was obtained through fraud, and this fact he may substantiate if he can. The demurrer should be overruled.

An objecüon has been raised in the argument of the case, to the form of the process in this case, and it is contended that a sci.fa. cannot issue from a decree on a petition. Although this objection is not presented by the pleadings, the Court have no hesitation in saying, that the objection is unfounded. It is convenient and within Hie spirit of the act of Assembly, which gives the sci.fa. on the bonds of distributees, where their shares have been delivered to them.