come to the hands of the said C. D. to be administered; and the said C. D. in mercy, &c.

This judgment is first signed on a 4d. stamp paper, How to sign and notice must be given in the usual way to execute the judgment. inquiry, and the plaintiff's debt must be proved before

the sheriffs; but if the action is in debt, sign it on a 10s.

stamp paper.

In an action against an insolvent debtor, or fugitive, Insolvent whose future effects remain liable to the payment of his debtor. debts, the plaintiff may take judgment for his demand, to be levied of those effects. 1 Term Rep. 80, (a)

As yet of the Term of, &c.

Middlesex, to wit. C. D. puts in his place G. H. his at- Judgment of torney, at the suit of A. B. in a plea of trespass.

next after

non pros. for not declaring

Middlesex, to wit. C. D. according to the form of the on common statute in such case made and provided, was served with process by a copy of a precept (b) called a bill of Middlesex, issued bill. out of the court of our lord the king, before the king himself, returnable on in term now last past, to answer A. B. in a plea of trespass; and the said C. D. at that day appeared by J. K. his attorney, according to the form of the statute in such case made and provided: and the said A. B. hath not declared in the said court of our said lord the king, before the king himself at Westminster, aforesaid, by his bill, or declaration, in any personal action, or ejectment, against the said C. D. before the end of this present term, being the next term after the appearance of him the said C. D. at the suit of the said A. B. Therefore it is considered, that the said A. B. take nothing by his said precept, (or writ) but that he be in mercy, &c. And it is further consider

(a) In this case the award of the judgment is to recover the damages and costs to be levied, not on the person of the defendant, but on his lands, goods and chattels, according to the form of the statute in such case made and provided.

(b) If a latitat, say, a certain writ of latitat (or alias capias) issued, &c. directed to the-sheriff of and returnable, &c. to answer A. B. in a plea of trespass, and also to a bill, &c. (the action) and the said C. D. at the same day appeared, &c.

If latitat, &c.

If by origina!.

ed by his majesty's court here that the said C. D. do recover against the said A. B. 1. for his costs and charges by him laid out about his defence in this behalf, by the court of our said lord the king now here adjudged to the said C. D. and with his assent, according to the form of the statute in such case made and provided, and that the said C. D. have execution thereof, &c.

I have altered this for a latitat or alias capias, or pluries capias, only state the name of the writ, and the venue is to be in the margin of the roll, and judgment paper as directed in the writ. There is only the defendant's war rant of attorney to be entered in this case.

If the nonpros be by original say, was served with a copy of a certain writ of our lord the king, called a special capias ad respondendum, issued out of the court of our said lord the king, before the king himself, directed to the sheriff of and returnable on wheresoever our said lord the king should then be in England, to answer A. B. in a certain plea of trespass on the case upon promises to the damage of the said A. B. of 1001. and the said C. D. at the same day appeared, &c.

Of reviving a

day.

SCIRE FACIAS TO REVIVE JUDGMENT.

ALL writs of execution must be sued out within a

judgment after a year and year and a day after final judgment signed; other ter a year and wise the court concludes, prima facie, that the judgment is satisfied and extinct; yet however it will grant a scire facias in pursuance of the statute of Westm. 13 Ed. 1. c. 45. for the defendant to shew cause why the judgment should not be revived, and execution had against him; to which the defeudant may plead such matter as he has to allege, in order to shew why process of execution should not be issued; or the plaintiff may still bring an action of debt founded on this dormant judgment, which was the only method of revival allowed by the common law. Co. Lit. 290. 2 Inst. 469. But if once an execution is sued within the year, and it be not executed but returned by the sheriff, it may be continued on the roll from term to term, and there needs no sci. fa. 2 Inst. 471. 2 Lill. Pract. Reg. 608.

But now see stat. 43 Geo. 3. c. 46. sect. 5.

as to costs.

A sci. fa. to revive on a

A scire facias to revive a judgment entered on a bond securing an annuity granted before the 17 Geo. 3. c. 26. judgment se is an action within that statute; and therefore a memorial

an annuity is an action.

of the annuity must be inrolled before brought, and exe- cured to pay cution on a sci. fa. for want of it, was set aside. Fenner v. Evans, 2 Term Rep. 27.

A scire facias is a judicial, not an original writ, but is Judicial writ. framed out of the record; and is in the nature of an action; for a release of actions or executions, discharges it. Co. Lit. 290. b.

It is a judicial writ, in the nature of an original. Ju- It is in nature dicial, inasmuch as it is founded on a judgment, or other of an original matter of record; and in the nature of an original, since and in a variety of cases similar proceedings may be had thereon, as in common actions and it hath been held in a variety of cases, that it is an action. Fenner v. Evans, 1 Term Rep. 267. 2 Term Rep. 45.

ap

an action.

A new war

And there must be a new warrant, to authorise the pearance of the plaintiff's attorney. 2 Ld. Ray. 1048. rant. 1252. 2 B. & P. 357. (b). 1 Salk. 89. But there is no occasion for a rule to change the attorney. Say. 218.

It must be sued out of the same court where the judg- When it must ment was given, if the record remains there, or if it has be sued out of been removed out of the court where the record is. Com. same court. Dig. tit. Pleader, 3 L. 3.

A bond conditioned for the payment of a certain sum A bond by inby instalments, is within the stat. 8 & 9 W. 3. c. 11. s. 8. stalments, and after judgment obtained upon default of payment of judgment one of the instalments, if a subsequent instalment be in default of the signed on arrear, the plaintiff cannot sue out execution for it, though payment of within a year after such judgment, without first suing one must have out a sci. fa. to recover it. Willoughby v. Swinton, 6 East, sci. fa. for 550. 2 Burr. 820. Collins v. Collins. 8 Term Rep. 120. next. Walcot v. Goulding.

An execution had after a year and a day without sci. If sued out affa. is not void, but voidable. 3 Lev. 140. Šalk. 273, pl.4. ter the time it

is not void

If there has been no ca. sa., fi. fa., elegit, or hab. fac. but voidable. possessionem sued out within the year and day, then in Sci. fa. must order to revive the judgment, and take out execution you be sued out in must sue out a scire facias into the county where the ori- where the ginal action was brought, the court supposing the defen- original acdant to reside in the same county. Salk. 251, 600. Comb. tion was. 250. N. on R. E. 5 Geo. 2.

This sci. fa. was intended to prevent a surprise upon When no sci. the defendant after the year and day elapsed; but where fa. necessary. he affects the delay, by bringing a writ of error, though

If there be a stay of execu

above a year and day, yet execution may issue without & sci. fa. Cro. Jac. 364. So if he be nonsuited, or disconti nues in error, though the year was expired before error brought. Ibid.

If the plaintiff has judgment with a cesset executio, oṛ stay of execution for a year, he may after the year, take tion for a year. out execution without a scire facias, because the delay is by consent of parties, and in favour of the defendant; and the indulgence of the plaintiff ought not to be turned to his prejudice. But if the plaintiff do not take out execution within a year after the cesset executio is determined, a sci. fa. must be sued out, Mod. Cas. 288. 1 Salk. 322.

If an injunc tion.

Computation of the year.

If execution

not returned, or not filed, continuances

cannot be en

tered.

If error be brought.

If plaintiff

dies.

An execution was taken out without a sci. fa. where the defendant had made delays by bills in chancery for injunctions, and by obtaining time for payment, which the court held regular, and discharged the rule obtained for setting the proceedings aside with costs. -2 Burr, 660, Mitchel v. Cue, 1 Stra. 101. contra.

The year is to be computed from the day of signing judgment, not by the number of terms. Mod. Cas. 288.

If execution is not returnable by the sheriff, or not filed, continuances on it cannot be entered on the roll; if they are, and a ca. sa. is issued after the year, without sci. fa. defendant shall be discharged out of custody, and plain. tiff pay costs. Vide 2 Wils. 82. Barnes, 213.

If error be brought, though the party be hung up never so many years, yet there may be execution sued out immediately upon affirmance without a sci. fa. 2 Inst. 471. 5 Co. 78. 6 Mod. 288. 1 Salk. 322. Str.301. Winter v, Lightbound.

If Plaintiff or Defendant die after final Judgment, and before Execution.

It is held that in no case where the parties to the judgment are changed, ought execution to be sued by any other judgment without a scire facias; therefore, if the plaintiff dies before execution awarded, the execution cannot be sued out in his name before sci. fa. 2 Ld. Ray. 768. Regina v. Ford. But if execution is executed before the death of plaintiff, it is good, for the plaintiff's death does not alter the execution.

Also upon the death of the defendant, after final judg- If defendant ment recovered against him, no execution can issue against die after final his executors or administrators, without a scire facias, judgment. to shew cause why the plaintiff should not have execution against the goods, &c. of the testator. Lutw. 1273. To this the executors and administrators may appear and plead such matter as they have to allege, why execution should not issue: if not, judgment will be signed by default, and execution issue thereon against the goods,

&c. of their testator in their hands. But if the defen- If he die in dant die in the vacation, and the judgment is not above a vacation. year and a day past, the plaintiff may sign judgment and take out execution, provided he teste it before the death of the defendant. 6 Term Rep. 368. But if he teste it after, there must be a sci.fa. Ibid.

If one recover against a feme sole, and she is married If recovery within the year and day, a sci. fa must go against the against a feme husband. Wood's Inst. 670. Lut. 1273.

sole.

cannot have

execution with a sci. fa.

The husband cannot have execution for the costs on The husband a plea of coverture found for the defendant without a sci. fa. it being a maxim, that a person not a party to the record, cannot be benefited or charged with the process without a sci. fa. Dougl. 637. Wortley v. Rayner.

It is necessary in case the plaintiff becomes nonsuit.

Necessary on a nonsuit.

die.

If an executor or administrator obtains judgment, and If executor dies before execution, an administrator de bonis non, &c. shall have a sci. fa. upon such judgment. Stat. 17 Car. 2. c. 8. Jon. 214. 1 Rol. 890. Cro. Car. 167.

If a judgment be against two, the sci. fa. must be If against two. against both. 2 Salk. 598. Carth. 105. S. C. (a)

once sued

If a writ of execution be once sued out, returned, filed, If execution and entered on the roll, it may be continued until you sue out and execute a new one, and be as effectual as if out, need not new writs were issued out every term. Str. 100. Aires v. facias, Hardress.

When a sci.fa. may be sued out without Motion.

sue out scire

The writ of scire facias may be sued out of course at Within seven any time within seven years from the date of the judg years. ment without application to the court.

(a) In setting out the judgment, if there be a material variance, it will be fatal, on a hul tiel record.