Opinion
(June Term, 1846.)
1. If an obligee make his will and appoints any one of his obligors his executor, it is a release or extinguishment of the debt as to all the obligors; but when the court appoints one of the obligors to be the administrator of the obligee, it only suspends the debt on the bond during the administration of that administrator, and it does not release nor extinguish it.
2. No matter which might have been well pleaded to the original action can be heard as a defense to a scire facias brought to revive the judgment rendered in that action.
APPEAL from CURRITUCK Spring Term, 1846; Bailey, J.
Health for plaintiff.
No counsel for defendant.
The facts of the case are stated in the opinion delivered in this Court.
The plaintiff obtained a judgment against Samuel Ferebee for $500, with compound interest from 7 June, 1832, on a bond executed to McPherson, the guardian of.........., and the plaintiff's intestate, by the plaintiff himself, Enoch D. Ferebee, Samuel Ferebee, Isaac Baxter, and others. The judgment was confessed by (449) Samuel Ferebee, who was sued alone on the bond. Execution issued, and it came to the hands of the said Isaac Baxter, who was then the sheriff; and the plaintiff, while the execution was in Baxter's hands, assigned the judgment to him. The execution was never levied. The judgment became dormant, and the plaintiff issued this scire facias to revive it. The defendant pleaded to the sci. fa., "Nul tiel record, payment and satisfaction." The judge pronounced that there was such a record. And it appears to us that the sci. fa. corresponds with the transcript, sent up here, of the record of the said judgment. We must, therefore, say that his Honor's opinion was correct upon this issue. On the trial of the other issues before the jury the defendant insisted that as the plaintiff Enoch D. Ferebee was a coobligor with S. Ferebee in the bond on which judgment had been entered, the debt was, therefore, in law, suspended as to all the obligors. The judge refused to charge as the defendant prayed. We concur with his Honor in his refusal. If Samuel Ferebee, however, when originally sued, had pleaded specially the above facts his plea would have been sustained; for the law is well settled that if an obligor makes his will and appoints any one of the obligors his executor, it is a release or extinguishment of the debt as to all the obligors. But when the court appoints one of the obligors to be the administrator of the obligee it only suspends the debt on the bond during the administration of that administrator, and it does not release or extinguish it. Williams on Ex., 811 to 815. But if the defendant had pleaded such a special plea to this sci. fa. (which he has not) it could not have availed him anything, for it is an established principle in pleading that no matter which might have been well pleaded to the original action can thereafter be heard as a defense to a sci. fa. brought to revive the judgment rendered in that action. Again, the (450) defendant insisted that the assignment of the judgment to Baxter, whilst he held the execution in his hands as sheriff, and he also being one of the original obligors in the bond on which the judgment had been rendered against S. Ferebee, was in law a satisfaction of the debt. The judge held otherwise; and we think his Honor was right on this point of the case. The assignment of the judgment to Baxter was a mere nullity in a court of law, and it would not there be noticed. And the fact that he was then sheriff, and had the execution in his hands for collection, could not operate in law as a satisfaction. We think that the judgment must be
PER CURIAM. Affirmed.
Cited: Rice v. Hearn, 109 N.C. 151.