Opinion
Fall Session, 1836.
SCIRE FACIAS on a judgment. The defendant appeared by attorney, and filed pleas to the action.
Bates, for plaintiff.
C. G. Ridgely, for defendant
Ridgley now confessed judgment, but insisted that the defendant was not liable for costs, on the ground that no probate had been made before suit brought, as required by law, (Digest, 227,) of which fact the defendant made affidavit; and that the defendant had not controverted the claim.
The defendant has pleaded to the scire facias, and this is controverting the suit; for the plaintiff was bound to come prepared for trial, and it would not be just that he should pay the costs of witnesses, an expense which was made necessary by filing the pleas. If the defendant did not intend to controvert the demand, he should have permitted judgment to go against him without appearance or plea.
Judgment for plaintiff.