Jenkins v. Pepoon — 2 Johns. Cas. 312

p. 312-2

Jenkins against Pepoon.

Headnote

To an action of debt on a judgment in the circuit court of the United States, for the district of Massachusetts, the defendant pleaded, that the record of the judgment had been removed, by writ of error, according to law, into the supreme court of the United States, wherefore he prayed judgment, &c. On demurrer, the plea was held bad.

A writ of error pending may be pleaded in abatement to a suit on the judgment ; but the plea must be drawn with precision, and conclude clearly, in abatement, and not in bar. The plea must also state that the writ of error was brought before the action was commenced on the judgment, and must show all those steps taken which are required by law to make it a supersedeas; as, in the present case, that a copy of the writ of error, for the adverse party, had been lodged in the clerk’s office, within ten days after the judgment was rendered.

Tma was an action of debt, on a judgment obtained in

the circuit court of the United States, for the district of Massachusetts.

The plea stated that the record of the judgment was removed into the supreme court of the United States, by writ of error; according to law, wherefore, the defendant prayed judgment, &c. To this plea there was a general demurrer and joinder.

Champlin, for the plaintiff.

Riggs, contra.

delivered the opinion of the court. The ancient authorities lay it down as law, that a writ of *error is no supersedeas to an action of debt, on a judgment. (Dy. 32, pi. 5. T. Raym. 100. , 2 Bae. Abr. 211, and the authorities there cited.) But it has since been otherwise determined, and seems now to be settled, that a writ of error pending may be pleaded in abatement, though it may not be pleaded in bar, to a suit on the judgment. (Carth. 1. 1 Lord Raym. 47. Skin. 590. 1 Lilly’s Entr. 11.)

The plea, however, in the present case, is, in several respects, bad. It does not conclude, either in abatement or in bar. A plea in abatement is to be known by its conclusion, (10 Mod. 112,) and requires great precision ; but it is impossible to tell whether this was intended as a plea in abatement or in bar, though perhaps this objection is not good but on a special demurrer. (3 Term Rep. 186.) The plea does not state that the writ of error was brought prior to the commencement of the present suit; which is an essential averment to render a plea of this kind good. (Carth. 1. 1 Lilly’s Ent. 11.) Nor does it state the requisite steps taken, to render a writ of error a supersedeas, even to an execution on the judgment, under the act of congress, which says, that a writ of error is no supersedeas to an execution, unless a copy of it be lodged, for the adverse party, in the clerk’s office, where the record remains, within ten days after judgment rendered. And, if it be no supersedeas to an execution on the judgment, there is no reason why it should abate an action of debt on the judgment. So, that on either of the

p. 313

two last grounds, we are of opinion that the plea is bad, and that judgment must be rendered for the plaintiff.

Judgment for the plaintiff.(^[1] )

a a (a) See Graham’s Practice, 3d ed. vol. i. p. 624.