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Of the Scire facias to revive a Suit by and against

the same Parties.

THE second sort of scire 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 such judgment. · Different opinions have been entertained, whether a fcire facias in such case lay at Common law? But the doubt, fays Lord Goke, arose for want of distinguishing between per fonal and real actions. 2 Inftit. 409.

At Common law, if after judgment given, or recogni. zance acknowledged, the plaintiff sued out no execution within the year; the plaintiff, or his conuzee, was driven to an original on the judgment; and the scire facias, in perfonal actions, was given by Weft. 2. C. 45. 2 Salk, 600. pl. 8. Ld. Raym. 669. Co. Lit. 290. b. Sid. 351. 3 Co. 12. 3 Mod. 189. 4 Mod. 248.'

But in real actions, or upon a fine, though no execution was sued out within a year after the judgment given, or fine levied, yet after the year, a sci. fa. lay for the land, &c. because no new original lay upon the judgment or fine. 2 Inftit. 470. And the reason why it lay in this case was, for that in a real action one could have no other advantage of his judgment; but in a personal action he might have debt on his judgment.

A scire facias lay also in mixed actions as well as real, as in an aflize, writ of anuity, and ejectment.

Therefore, after judgment had in a personal action, and no execution sued out within a year, the plaintiff muft revive the judgment by scire facias, and have judgment thereon, before he can fue out execution.

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

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Of the Scire facias to revive a Suit by and

against the same Parties.

So if there be a ceflèt executio for a year, or a writ of error, no fcire facias is necessary. Att. Prac. B. R. 371.

But it seems, the cesset executio should be entered on record. Ibid.

However, if the plaintiff does not take out execution within a year after the cesset executio is determined, he must first sue out a fcire facias.

If execution is stayed by injunétion out of Chancery for above a year, the plaintiff must sue out a scire facias. Prac. Reg. C. P. 370. Same in B. R. 1 Stra. 301. Salk. 322.

And a super fedeas quia improvide was awarded to an execution [stayed by an injunction out of Chancery for above a year] lued out without a previous fui. fa.

But note, An injunction only stays 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 sued out within a year, a fcire facias must be fued out to revive the judgment, yet the court of B. R. in the case of Mitchell v. Cue and Ux. Burr. 4 pt. 660. were unanimous, that this rule of reviving a judgment above a year old, by scire facias, before suing out execution upon it, which was intended to prevent a surprize upon the defendant, ought not to be taken advantage of by a defendant, who was so far from being surprized 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 so the court not only discharged the rule, (which had been obtained to set aside the execution] but with costs. · An execution had after a year and day, without a scire facias, is not void, but voidable only. 3 Lev. 404. Salk. 273. pl. 4.

If a defendant brings error, and is nonsuit therein; or if the writ be discontinued, although it be above a year since 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. Cro. Jac. 364. Rol. Rep. 104, 133.

Of the Scire facias to revive a Suit by and

against the same 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. Pasch. 13 W. 3. Haw. v. Cuton.

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

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

If the plaintiff does not proceed upon the first fcire facias, within a year and a day, he cannot afterwards proceed on that writ, but must sue out a new scire facias, for the old writ is discontinued.

If a judgment be above ten years standing, the plaintif cannot sue out a scire facias, without motion in court. 2 Salk. 598. pl. 3.

If under ten, but above seven years, not without a mo. tion at the side bar.

But note, If after such motion the judgment is revived by a scire facias, and then the defendant dies before execucution, the plaintiff must sue out a new scire 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 sues a sci. fa. to have execution upon such judgment; he ought to Thew in his sci. fa. that it is the judgment of such an inferior court removed thither by certiorari, and ought to thew the particular limits of the inferior jurisdiction, 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 tie affirmance it has become the judgment of the King's Bench. But in a sci. fa. upon such 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 sued out within the year and day, the plaintiff, without a previous sci. fa. in Trin. vac. 5 1. & M. took out an elegit, on which an inquisition was had, and

defendant's

of the Scire facias to revive a Suit by and

against the same Parties. .

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105.tory judgment of inquiry, which judesio

defendant's lands delivered in execution; and then the plaintiff entered on the roll an award of an elegit, of the same term with the judgment, with continuances of vicecomes non mifit breve to the time of suing out the elegir, And on examination it appearing to have been the practice for many years, the court, considering the inconveni. ences that might ensue by opening a gap to destroy many executions, and because the practice had prevailed so long, ordered the execution to stand. Carth. 283. 2 Show. 235: 3 Danv. Abr. 33.

A scire 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 foi. 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 survivor, and the representatives of the deceased defendant, Vide Carth. 105.

After interlocutory judgment the plaintiffs became bankrupts, then took out a writ of inquiry, and proceed. ed to final judgment in their own names. On which judgment the plaintiffs affignees sued a fcire facias to thew cause why they should not have execution: Defendant pleaded the whole matter of the bankruptcy in bar, and prayed judgment if the assignees ought to have execution against him, demurrer inde and joinder. The court held the allignees, properly entitled to the damages; and that the bankrupe's proceeding in their own names, after the interlocutory judgment, till final judgment, was well enough, because ine interlocutory judgment entitled the bankrupts to something, which by the inquest was ascertained. Hewit & al. allignees of Bibbins & al. v. Mantel. 2 Wilf. 372.-The assignees might have taken up the cause after the interlocu. tory judgment.

Plaintiff had judgment, and brought a scire facias, to which the defendant pleaded, and judgment thereon was for the pluintiff, who afterwards became a bankrupt. The commiflioners alligned 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.

be inqueft entitled these well enough

of the Scire facias to revive a Suit by and

I against the same Parties.

A man had judgment in debt, then became a bankrupt, and afterwards sued out execution; and the money being levied and brought into court, the assignee moved that it might not be paid to the plaintiff (the bankrupt] surmising that the judgment was assigned to him. But the court detained the money till the affignee brought a fcire facias to try the bankruptcy - cited in the above case in 2 Will. 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 scire 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

return, c... Raym. 1417;re by originaleach fcire face

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

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

And in B. R. if the proceedings were by bill, fifteen days inclusive between the teste of the first and return of the second sci. fa. is sufficient-But then each writ should have seven days between the tefte and return, and not one ten and the other five.

Every fcire facias whereon nihil is to be returned, should be delivered to the sheriff, or left in his office, sometime before returned. Reg. Eaft. 5 G. 2.

The alias scire facias muit be delivered to the sheriff, or left in his office, four days before returned. Ibid.

So every scire facias, on which a scire feci is to be returned, ought to be delivered to the sheriff, or left in his office, four days exclusive, before the return day. Ibid. And Att. Pra£t. 347.

The theriff must indorse the time of his receiving it.

And if the party is summoned the day before, or on the return day, it is sufficient. Att. Prac. B. R. 347. The fame in C. B.

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

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