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

TH

HE fecond fort of fcire facias, which is proper to be treated of in this place, is that to revive a judgment formerly had between the parties; and on which no execution was taken out after the rendering fuch judg

ment.

Different opinions have been entertained, whether a feire facias in fuch cafe lay at Common law? But the doubt, fays Lord Coke, arofe for want of diftinguishing between perfonal and real actions. 2 Inftit. 409.

At Common law, if after judgment given, or recognizance acknowledged, the plaintiff fued out no execution within the year; the plaintiff, or his conuzee, was driven to an original on the judgment; and the fcire facias, in perfonal actions, was given by Weft. 2. c. 45. 2 Salk. 6co. pl. 8. Ld. Raym. 669. Co. Lit. 290. b. Sid. 351. Co. 12. 3 Mod. 189. 4 Mod. 248.

3

But in real actions, or upon a fine, though no execution was fued out within a year after the judgment given, or fine levied, yet after the year, a fci. fa. lay for the land,

c. becaufe no new original lay upon the judgment or fine. 2 Infiit. 470. And the reason why it lay in this cafe was, for that in a real action one could have no other advantage of his judgment; but in a perfonal action he might have debt on his judgment.

A fcire facias lay alfo in mixed actions as well as real, as in an affize, writ of anuity, and ejectment.

Therefore, after judgment had in a perfonal action, and no execution fued out within a year, the plaintiff must revive the judgment by fcire facias, and have judgment thereon, before he can fue out execution.

But if execution were fued out within the year, and returned, and from which the plaintiff had no benefit, there needs no fcire facias in fuch case afterwards, but that execution may be continued down on the roll to any diftance of time. Att. Prac. B. R. 248, 341, 372.-like practice in C. B. Att. Pract. C. B. 234, 330. And where execution was awarded on a fire facias, and four years after the defendant, being in the Fleet for another caufe, was brought into court by habeas corpus, and there admitting himself to be the fame perfon, he was committed in execution without a fcire facias. Att. Pract. C. B. 359.

So

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

So if there be a ceffet executio for a year, or a writ of error, no fcire facias is neceflary. Att. Prac. B. R. 371. But it feems, the ceffet executio fhould be entered on record. Ibid.

However, if the plaintiff does not take out execution within a year after the ceffet executio is determined, he must firft fue out a feire facias.

If execution is stayed by injunction out of Chancery for above a year, the plaintiff muft fue out a feire facias. Prac. Reg. C. P. 370. Same in B. R. I Stra. 301. Salk.

322.

And a fuperfedeas quia improvide was awarded to an execution [ftayed by an injunction out of Chancery for above a year] fued out without a previous fci. fa.

But note, An injunction only ftays the actual executing the writ; therefore, a plaintiff may fue out his execution, notwithstanding an injunction, and continue it down by vicecomes non mifit breve. Ibid.

But notwithstanding the rule is, that if no execution be fued out within a year, a fcire facias must be fued out to revive the judgment, yet the court of B. R. in the cafe of Mitchell v. Cue and Ux. Burr. 4 pt. 660. were unanimous, that this rule of reviving a judgment above a year old, by fcire facias, before suing out execution upon it, which was intended to prevent a furprize upon the defendant, ought not to be taken advantage of by a defendant, who was fo far from being furprized by the plaintiff's delay, that he himself had been trying all manner of methods whereby he might delay the plaintiff, viz. by injunction, &c. And fo the court not only discharged the rule, [which had been obtained to fet afide the execution] but with costs.

An execution had after a year and day, without a fcire facias, is not void, but voidable only. 3 Lev. 404. Salk. 273. pl. 4.

If a defendant brings error, and is nonfuit therein; or if the writ be difcontinued, although it be above a year fince the original judgment was given, the plaintiff may take out execution; for though in such cases there is not any new judgment given, yet the bringing of the writ of error revives the first judgment. Gro. Jac. 364. Rol. Rep.

104, 133.

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

If the plaintiff delay the executing a writ of inquiry, till a year after the interlocutory judgment, he cannot do it after, without a fcire facias. Caf. in B. R. Pafch. 13 W. 3. Haw. v. Cuton.

But in the cafe of the king, there need not be any feire facias after the year and day. 2 Salk. 603. pl. 13. Ld. Raym. 328, 553

After a judgment, if the plaintiff within the year fues a fcire facias, he cannot after have a capias within the year, till he hath a judgment on the fci fa. Rol. Abr.

900.

If the plaintiff does not proceed upon the firft fcire facias, within a year and a day, he cannot afterwards proceed on that writ, but muft fue out a new fcire facias, for the old writ is difcontinued.

2

If a judgment be above ten years standing, the plaintiff cannot fue out a fcire facias, without motion in court. Salk. 598. pl. 3.

If under ten, but above seven years, not without a motion at the fide bar.

But note, If after fuch motion the judgment is revived by a fcire facias, and then the defendant dies before execucution, the plaintiff muft fue out a new feire facias; but may have it without motion, for the judgment was revived before. 2 Salk. 598.

If the judgment of an inferior court is removed into B. R. by certiorari, and the party fues a fci. fa. to have execution upon fuch judgment; he ought to fhew in his fci. fa. that it is the judgment of fuch an inferior court removed thither by certiorari, and ought to fhew the particular limits of the inferior jurifdiction, and pray execution within the particular limits. But if the judgment be removed into B. R. by writ of error, and affirmed, the party may have execution in any part of England; for by the affirmance it has become the judgment of the King's Bench. But in a fci. fa. upon fuch judgment affirmed, the plaintiff ought to alledge, that it was removed thither by writ of error. Ld. Raym. 216.

After judgment recovered, Hil. 30, 31 Car. 2. and no execution actually fued out within the year and day, the plaintiff, without a previous fci. fa. in Trin. vac. 5 W. & M. took out an elegit, on which an inquifition was had, and

defendant's

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

defendant's lands delivered in execution; and then the plaintiff entered on the roll an award of an elegit, of the fame term with the judgment, with continuances of vicecomes non mifit breve to the time of fuing out the elegit, And on examination it appearing to have been the prac tice for many years, the court, confidering the inconveni ences that might enfue by opening a gap to deftroy many executions, and because the practice had prevailed fo long, ordered the execution to ftand. Carth. 283. Carth. 283. 2 Show. 235; 3 Danv. Abr. 33.

A feire facias lies not on a judgment pending a writ of error brought on that judgment, but the writ of error pending is a good plea to the fei. fa. Ld. Raym. 1295.

If a joint judgment is obtained against two, and one dies, the fcire facias ought to be brought against both the furvivor, and the reprefentatives of the deceafed defendant, Vide Carth. 105.

After interlocutory judgment the plaintiffs became bankrupts, then took out a writ of inquiry, and proceeded to final judgment in their own names. On which judgment the plaintiffs affignees fued a fcire facias_ to fhew caufe why they fhould not have execution: Defendant pleaded the whole matter of the bankruptcy in bar, and prayed judgment if the affignees ought to have execution against him, demurrer inde and joinder. The court held the affignees properly entitled to the damages; and that the bankrupt's proceeding in their own names, after the interlocutory judgment, till final judgment, was well enough, because the interlocutory judgment entitled the bankrupts to fomething, which by the inqueft was afcertained. Hewit & al. affignees of Bibbins & al. v. Mantel. 2 Wilf. 372.—The affignees might have taken up the caufe after the interlocu tory judgment.

Plaintiff had judgment, and brought a feire facias, to which the defendant pleaded, and judgment thercon was for the plaintiff, who afterwards became a bankrupt. The commiffioners affigned the original judgment to P. who moved the court, that it might be entered to entitle him to the benefit of the judgment on the fci. fa. which was ruled accordingly, without bringing a new fci. fa. Plumer v. Lea. 5 Mod. 88.

A

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

A man had judgment in debt, then became a bankrupt, and afterwards fued out execution; and the money being levied and brought into court, the affignee moved that it might not be paid to the plaintiff [the bankrupt] furmifing that the judgment was affigned to him. But the court detained the money till the affignee brought a feire facias to try the bankruptcy cited in the above cafe in 2 Wilf.

372.

A feire facias, if against the party, is in hac parte; but if against bail, in ea parte. Salk. 599. Ld. Ray. 393,

532.

A feire facias to revive a judgment or award of execution, must be in the county where the judgment is recovered, or execution awarded. Hob. 4. Cro. Car. 228.

And the fcire facias must be returnable at a common return, or at a day certain, as the original proceedings were. Ld. Raym. 1417.

If the proceedings were by original, there must be fifteen days between the tefte and return of each feire facias; and the writs must be returnable on a general return.

But in fcire facias's on writs of attachment, or bills against privileged perfons in C. B. fifteen days are not requifite between the tefte and return.

And in B. R. if the proceedings were by bill, fifteen days inclufive between the tefte of the firft and return of the fecond fci. fa. is fufficient-But then each writ should have feven days between the teste and return, and not one ten and the other five.

Every feire facias whereon nihil is to be returned, fhould be delivered to the fheriff, or left in his office, fometime before returned. Reg. Eaft. 5 G. 2.

The alias feire facias must be delivered to the fheriff, or left in his office, four days before returned. Ibid.

So every fcire facias, on which a fcire feci is to be returned, ought to be delivered to the sheriff, or left in his office, four days exclufive, before the return day.

Pract. 347.

Ibid. And Att.

The fheriff muft indorfe the time of his receiving it. And if the party is fummoned the day before, or on the return day, it is fufficient. Att. Prac. B. R. 347. The fame in C. B.

In a fcire facias to revive a judgment, the term of the recovery need not be inferted. Barnes 431.