Opinion
June Term, 1813.
From Northampton.
1. To a sci. fa. upon a refunding bond, defendant pleaded that the debt recovered against the administrator was not justly due and that the administrator fraudulently and collusively with the plaintiff confessed the judgment.
2. The burthen of proof lies on the defendant to verify his plea by proof of the fraud, otherwise judgment must be rendered against him on the sci. fa.
3. 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 giving 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 due, 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.
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 the judgment was fraudulently obtained, he places the burthen of proof on himself, and the judgment (302) remains good until he 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 objection 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 the spirit of the act of Assembly which gives the sci. fa. on the bonds of distributees where their shares have been delivered to them.