Schenck v. Woolsey

Headnote

On a sci. fa. to revive a judgment of twenty years standing, if an inquest has been taken because the defendant’s counsel was not prepared to adduce his discharge, long since obtained under an insolvent law, and the defendant himself, from remoteness of distance and bodily in

IN scire facias, to revive two judgments, one for the £ 4124, the other for £ 1718, obtained in 1783, inquests had been taken at the sittings in December 1803.

under an agreement that the application should be considered as in time, moved to set them aside on affidavits, which contained in substance these facts.

The defendant, who lives at Platsburg in the county of Clinton, was in 1785, duly discharged under the then insolvent law of the state. In February 1803, the declarations were filed, to which payment was pleaded, with notices subjoined of giving the discharge, &c. in evidence ; but as, on procuring a copy of the proCeedings under the insolvent law, the discharge itself could not be found, the attorney ol the defendant wrote to him in the August following, communicating this circumstance, and requesting him

firmity, could not attend: thethe inquest to let in a proof of it, though the defendant be shewn to be a sufficient ability to pay: for a court of law connot notice the moral obligation to pay debts, from which a debtor has been by law discharged, unless a new liability has been incurred, but this will be done only on payment of costs. A counsel at ni. pri. must, if asked, answer whether his client has a defence or not.

m make inquiry after it. On the cause being noticed for tria] on the 12th of December in that year, the defendant’s- attorney again wrote to him, repeating the contents of his former letter; and urging him to personally attend, that measures might be taken to procure the discharge, or substantiate by parol evidence its former existence and loss. The first of these letters did not reach the defendant till the middle of September, the latter not till the 29th of November, then next. To each of these the defendant replied, stating that in consequence of a fractured leg, he was uterly unable to travel, and desiring the trial to be postponed till the February following, as, by that time, he hoped to be able to procure the discharge, which had been given to Mr. Du Boys, then sheriff of Du'chess, to warrant his release from confinement, The first of these answers never came to hand, and the latter, which was received, bore date on the 18th of December ; but though the discharge itself was not found, the attorney employed for the insolvent, who was also assignee of his estate, swore that the discharge had been obtained on a due, and full adherence to the requisites of the act, and that he was then petitioning congress for the lands to which the defendant was entitled, as an officer in the revolutionary army, in consequence of their having passed by the assignment of the insolvent’s estate. None of these circumstances, however, appeared when the inquests were taken ; for the counsel of the defendant, when the causes were called on, refused to answer the court whether there was any de-fence ; thinking that he was not bound to do so, and in consequence of this silence the inquests were taken.

This detail, Ogden insisted, furnished indisputable evidence that there was a good and substantial defence, according to the affidavit of the defendant, and that the court had not, at the circuit, any right to oblige either the counsel to assume the responsibility of answering for a defence, or the defendant to disclose the nature of that on which he relied. That a discharge had been fairly obtained was evident, and had the cause been tried, would have been substantiated by parol evidence, though the discharge itself might not have been produced.

The practice of taking inquests is necessary to expedite justice, and is the right of the plaintiff. Every fact now shewn was in the power of the defendant at the time that inquest was taken, and might have been then availed of. The nature of the defence is stricti juris, and therefore not to be

favoured, for though in law the debt is gone, the moral duty still remains, and the plaintiff swears he believes the defendant to be of sufficient ability. At all events the apparent laches was enough to prevent the granting the motion.