Short v. Hooker , 40 How. Pr. 420 ( 1870 )

Morgan, J.

I am of opinion that the answer furnished a good defense to the suit, upon the bail bond against the sureties. There is no longer any record of judgment against the principal, the same having been set aside by the appellate court.

It' was long ago resolved that if an action of escape be brought against the sheriff, but the judgment upon which it is founded be reversed before such time as the defendant is forced to plead, he may plead null tiel record, (Bacon’s Ab., Title Error, M. 3, p. 121.) If, after judgment in scire facias against bail, the judgment against the principal is reversed, this is no reversal of the judgment against the bail, because it is a collateral judgment by itself. But it is added that in such case, the bail may be relieved by audita querela, (Id., p. 122). Now an audita qmrela would not lie for matter that could be pleaded as a bar to the action, for if it could be pleaded it was the party’s own fault, and therefore, he shall not be relieved, that the pleadings may not be endless, (1 Bacon’s Ab., Title, " audita querela" 424).

I conclude from these authorities, that as the reversal of the judgment against the principal was before the time to answer the complaint expired, the defendants were required to set it up in their answer, in order to avail themselves of the defense. If judgment had passed against the defendants, before an opportunity occurred to set up the defense, the court would doubtless relieve them on motion.

The defendants are entitled to judgment on the demurrer, with leave to the. plaintiff to amend his complaint upon payment of the costs of the demurrer within twenty days.