Page images

Of the Scire facias to revive a Suit by and against the same Parties.

In B. R. in all cases, there must be two nihils, or one scire fec i returned.

But in C. B. in order to revive a judgment, if both parties are alive, one scire facias, though returned nihil, is sufficient. Att. Pratt. 330.

After the writs and returns are filed, the plaintiff gives a rule to appear, which expires in four days; and if no appearance is entered, he may then sign judgment on the scire facias, and take out his execution.

But if the party appears, the plaintiff declares in scire facias; and the practice throughout the subsequent proceedings is exactly the same as in other cases. Of appearing, declaring, pleading, i$c. in scire facias, Vide ante undar title set. fa, against bail.

Vol. II. H Of * .

Of the Bare facias to continue a Suit by ancJ against the Representatives of one of the Parties dying before final Judgment.

BY the 17 Car. 2. e. 8. it fs enacted, "That in all actions personal, real, or mixty the death of either party, between the verdict and the judgment, (hall not hereafter be alledged for error, so as such judgment be entered within two terms after such verdict."

And "where any judgment after a verdicl shall be had, by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a. scire fatten, and take execution upon such judgment."

A. sued a si. sa. against C. *s executor of B. on a judgment obtained by the plaintiff against the said B. C. pleaded in abatement, that B. died before judgment, &c. To this C. replied, and set out the Jiat. 17 Car. 2. c. 8. and that B. died after the verdict obtained against him, and after the day of nisi prius, and before the day in bank. Thereupon C. demurred. And the objection was, that the plaintift' ought to have sued a special sire facias, and not a general one; for this supposes a judgment against the testator in his lise-time; and the replication shews it was entered after his death, though well entered according to the statute. S ed per cur. The writ is good as it is, and could not be otherwise; for had it been special, there would have been a variance, the judgment being entered generally; and a respondeas ouster was awarded. Ld. Raym. 1280.

The death of either party, before the assizes, is not remedied by this statute; but if the party die after the assizes begin, though the trial be after his death, that is within the remedy of the statute; for the assizes is but one •day in law. Yet the court said it was- in their discretion, whether they would arrest the judgment. But in Lord Raym. 1415. it was holden not assignable for error, it appearing by the record, that the desendant appeared per atter not am suum.

, By the 8 y 9 W. 3. cw.s. 6. it is enacted, " That in all actions commenced in any court of record, if any plaintiff happen to die after an interlocutory judgment, and before a liual judgment obtained therein, the said action shall not -abate by reason thereof, if such action might be originally prosecuted or maintained by the executors or administrators of such plaintiff; and if the desendant die after such interlocutory judgment, and before final judgment therein obtained,


Os the Scire facias to continue a Suit by and against the Representatives of one of the Parties dying before final Judgment.

the said action shall not abate, if such action might be originally prosecuted or maintained against the executors or administrators of such desendant: and the plaintiff, or if he be dead, after such interlocutory judgment, his executors or administrators shall and may have a fcire facias against the desendant, if living afcer such interlocutory judgment; ©r if he died after, then against his executors or administratots, to shew cause why damages in such action should not be assessed and recovered by him or them ; and if such desendant, his executors or administrators, shall appear at the return of such writ, and not shew or alledge any mattes sufficient to arrest the final judgment, or being returned warned, or upon two writs of fcire facias it be returned, that the desendant, his executors or administrators, had nothing whereby to be summoned, or could not be found in the county, shall make desault; that thereupon a writ of inquiry of damages shall be awarded, which being executed and returned, judgment final shall be given for the said plaintiff, his executors or administrators, prosecuting such writ or writs of fcire facias, against such desendant, his executors or administrators respectiveiy."

The former.stat. 17 Car. 2. makes the judgment good, as entered between the parties themselves to the suit, though One died after the verdiSt, and before the judgment entered.

But by this stat. of 8 {# 9 IV. 3> if a desendant dies after interlocutory judgment, and the action may be continued against his representatives, the final judgment must be against the representatives, for they are exprefly taken notice of for that purpose; and the fcire facias against them must be spread and appear on the same record. Vide 1 Soli. 42.

If a desendant dies after a writ of inquiry executed, and before the return thereof, it is within this act, and the fcire facias against his executor or administrator must be to shew cause why the damages assessed should not be recovered. Gcldfworthy v. Soutbcot, B. R. I IVilf 243.

The plaintiff, as administrator to j. S. sued a fcire facias against the desendant, setting forth, that his intestate sued the desendant as executor in such an action, and had judgment by nil dicit, on which a writ of inquiry was awarded, which abated by the intestate's death before the return j t.hat administration was granted the plaintiff, and com

H 2 manded

Os the Scire facias to continue a Suit by ancK against the Representatives of one of the Parties, dying before final Judgment.

manded the sheriff to summon the desendant to shew cause, why the plaintiff, as administrator, should not have judgment: to which set. fa. the executor pleaded a bond of his testator's, on which judgment had been recovered, and no assets ultra. To which plea plaintiff demurred, and had judgment; for the statute never intended that the executor should stand in any other circumstances, to make another desence than the party himself might have made against the inquiry; and he could have pleaded nothing but a release, or other matter in bar arising puis darrein continuance. He is, by the words of the statute, to shew cause why damages in such case shall not be assessed and recovered j and if he shall appear at the return, and not shew any matter sufficient to arrest the final judgment, then a writ of inquiry shall be awarded, Z3c. And arresting judgment is by matter apparent in the record, and not extrinsic; and heretofore they pleaded in arrest of judgment, as now it is moved. And the executor cannot be hurt by this, for the judgment is only de bonis tefiatoris, as if recovered against the testator himself. Salk. 3.15.

The desendant died after the rule was out, but before the time given to plead by a judge's order expired; and the plaintiff signed an interlocutory judgment, and sued out a scire facias against the desendant's executor upon this statute, to shew cause why damages should not be assessed and recovered; but on motion the court set aside the proceedings for irregularity, as the writ abated by the death of the defendant before interlocutory judgment was signed, notwithstanding the rule to plead was out. And so held in Sibert v. The executor of general Rujsel, Mich. 9 Geo. 2. Wallop v. Irwin, 1 Wils, 315. , , . . •

[ocr errors]

Note: The tefte and return of such writs of scire facias are according to the action, whether that is by bill or original-, and proceedings therein are the same as in other .cases of fire facias. . •


Os the Scire facias by and against the Representative of a Party to the Suit, dying after Judgment, and before Execution.

ON E that is no party to the record, recognizance, fine or judgment, as the heir, executor or administrator, though they be privy, and it be within the year, shali have no writ of execution, but a scire facias to enable themselves to the suit y and so of the tenant or desendant, for the alteration of the person altereth the process: otherwise in the case of a statute staple or merchant, because the process is given by other acts of parliament. 2 Injl. 471. Cart. 112, 193. Gedb. 83.

But if there be two plaintiffs in a personal action, and one of them dies, pending the suit, that shall not put the other to a scire facias; so of the desendants die, because the same party still remains on record. 7 Mod. 68. but the way is now, to suggest the death of the party upon the roll, on record, at whatever stage of the suit he died, according to 8 &? 9 W. 3. c. 11. /. 7.

So if there-is judgment against A. on which a fi. fa. is sued out; but before execution thereof^. dies intestate; there needs no scire facias to renew this judgment, but execution of the e;oods under that writ of fi. fa. may be made in the hands of the administrator. Farrer v. Brooks. For, as the party himself could not have made any desence to the writ of execution, there is no reason that his representative should be in a better condition.

But if there be judgment in debt against two, and one dies, a scire facias lies against the other alone, reciting the death j and he cannot plead, that the heir of him deceased has assets by descent, and demand judgment if he ought to be charged alone; for at common law, the charge upon a judgment, being personal, survived ; and the fiat. IVeJl. 2. which gives an elegit, does not take away the common law remedy; and therefore the plaintiff may take out his execution which way he pleases; but if he should, after allowance of this writ and revival of judgment, take out an elegit to charge the land, the party may have remedy by suggestion, or by an audita querela. Vide Bac. Abr. 4 vol. 419.

If an executor brings a scire facias on a judgment, or a recognizance, and gets a judgment quod kabeat executionem, and dies intestate, the administrator de bonis non must bring a scire fucias upon the original judgment, and cannot pro

H 3 ceed

« PreviousContinue »