Opinion
(August Term, 1848.)
To support a declaration in an action of debt upon a judgment the exemplification of the judgment itself must be produced; it is not sufficient to show a scire facias to show cause why execution according to the sci. fa.
APPEAL from the Superior Court of Law of MECKLENBURG, at Spring Term, 1848, Manly, J., presiding.
Bynum and Wilson for plaintiff.
Osborne for defendant.
This was an action of debt upon a judgment obtained (512) by the plaintiff against the defendant in the Court of Common Pleas for Richland District, in the State of South Carolina. Plea, nul tiel record. Upon an inspection of the exemplification of the record produced by the plaintiff, it appeared to be an execution issued 10 June, 1829, on a judgment recited therein to have been confessed by the defendant to the plaintiff for the sum of $260.50, with interest and costs; and two scire faciases issued in 1845 and 1846 against the defendant to show cause why the plaintiff should not have his execution against her upon the said judgment, with the sheriff's returns of "nihil" thereon, and then an award of execution by the court. The court below adjudged that there was no such record, and the plaintiff appealed.
The court below was undoubtedly right in deciding that there was no such judgment as that upon which the plaintiff declared. The exemplification of the record produced showed no judgment at all, but merely an award of execution upon a judgment recited therein to have been before rendered, but the judgment itself was not produced. The plea of nul tiel record put in issue the judgment declared upon, and the plaintiff was bound to produce an exemplification of it in support of the affirmative of his plea.
PER CURIAM. Judgment affirmed.
(513)