We must now presume that there was a judgment of the Court of Common Pleas of Fayette county. It was reviewed in this Court on writ of error, and reversed. [His honour here stated the facts.] The probability is, that the case stated, as it is called in one part of the record, or more likely a special verdict, as it is called verdict in the judgment of the Supreme Court, was lost or mislaid; it can hardly be doubted but that it once existed, as it ' was the foundation of the action of both Courts. After so great a lapse of time, it is fairly to be presumed that there was a judgment somewhere on the record. It- can more readily and safely be accredited that the clerk of the Court below committed misprision, and failed to enter the judgment on the docket, than that this Court overlooked the fact that there was none, and that the eminent counsel for the defendant below, neglected to bring that matter before this Court, as it was his duty to do, if no judgment had been rendered below. Indeed it would amount to an admission, after this lapse of time on the part of the defendant, that a judgment did exist; an admission which ought to estop him now from denying the fact. The probability is that judgment was entered on the back of the paper, containing the stated case, or, as it may have been, the special verdict. That paper, it seems, is now lost or mislaid, *217and cannot be found. Strong presumptions are tolerated and allowed in favour of records irregularly kept, after a great lapse of time. It is presumed under such circumstances, that Courts did what the law required them to do, and that omissions were the result of carelessness or ignorance on the part of the clerks. In this category we are thrown upon the alternative of deciding, that the Court below delivered a written opinion, pronouncing the law on the facts contained in the stated case or special verdict, and did not direct judgment to be entered, and that this Court reversed a judgment where none existed, pronounced it erroneous, and entered the judgment which the law warranted; or, on the other hand, that the clerk omitted to enter on the docket the judgment which was pronounced and given. We adopt the latter alternative as conformable to the law and reason of the case, especially as papers are not forthcoming on which the judgment might well have been entered.
It is also contended that the writ of scire facias was erroneous, admitting the judgment of the Supreme Court of the 26th September, 1820, to be good, because it is recited as a judgment of the Court of Common Pleas of Fayette county, and not as a judgment of the Supreme Court. But, on special verdict or stated case, the Supreme Court enter the judgment which the Court below ought to have rendered, and remit the record to be carried into effect by the Court below. It does in such case become virtually the judgment of that Court, which it is bound to execute. If the recital was erroneous, it would have been amendable after plea pleaded, from and by the record itself: Willard v. Norris, 2 Rawle, 56; Maus v. Maus, 5 Watts, 318. Recognisance of bail in error was amended after judgment affirmed: 4 Yeates, 559. It would at most be a technical or clerical error, cheeked and made apparent by the record, which could have been amended by the record; and therefore this Court cannot regard it as sufficient to overturn the judgment. But I am free to say that, as one court cannot issue a scire facias upon the judgment of another court, unless authorized so to do by statute, it may well be considered as virtually the judgment of the Court below, for all purposes and process of execution.
There is nothing in the error assigned, that the writ of scire facias is erroneous, because it is not stated how or .when Margaret Shaw became sole. The writ recites that judgment was had in the action of dower, by James Shaw and Margaret his wife, late Margaret Boyd, widow and relict of William -Boyd, deceased, &c., *218against Thomas Boyd, for one-third part of a certain messuage, &c., and that the said judgment remains unexecuted, as the Court is given to understand, by said Margaret Shaw, now sole, &c. Margaret was the meritorious cause of action and the recovery in her right; and upon her being divorced, or upon the death of Shaw, the action survived to her. How she became sole was a matter of'no consequence to the defendant. The plaintiff’s rights were the same, whether she was sole by divorce or by the death of her husband. And the defendant did not-put that fact in issue by plea in abatement or in any other way. The issue on nul tiel record was, whether there was a judgment in favour of Shaw and wife, widow and relict of William Boyd. The remaining error assigned is, to the Court rendering judgment for insufficiency of plea.
The plea of payment is an answer to an action to recover money alleged to be due on a contract express or implied, or to a scire facias to revive a judgment for a debt or damages. But it would seem to be no answer whatever to an action for the recovery of land, or to a scire facias to revive a judgment in ejectment or dower, where the judgment is; that the demandant shall recover seisin of one-third of the land, as was the case here. There was no judgment for damages. Not béing an answer to. the action, the Court could do no less than treat it as insufficient.
Where the plea of payment is an answer to the action, the defendant may, after notice, give in evidence special circumstances, in Pennsylvania, which would render it unjust and inequitable, and against conscience, for the plaintiff to recover.
But where payment is no answer, the defendant must plead specially. It would hardly'be pretended, that on a scire facias to revive a judgment in an action of ejectment, the plea of payment was an answer, or opposed any obstacle to the rendition of judgment. The Court would be right in considering it as a nullity. So in this case, where the judgment was, that the plaintiff should recover one-third. part of the land, &c., the plea of payment was wholly inapplicable and insufficient, and the Court were not in error in so considering it. As to the replication of non solvit, that is usually the act of the clerk, and could not cure the nullity of the plea.
Judgment affirmed.