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

In B. R. in all cafes, there must be two nihils, or one feire feci returned.

But in C. B. in order to revive a judgment, if both parties are alive, one feire facias, though returned nihil, is fufficient. Att. Pract. 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 fign judgment on the fcire facias, and take out his execution.

But if the party appears, the plaintiff declares in fcire facias; and the practice throughout the fubfequent proceedings is exactly the fame as in other cafes. Of appearing, declaring, pleading, &c. in feire facias, Vide ante under title fci. fa. against bail.

VOL. II.

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

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Y the 17 Car. 2. c. 8. it is enacted, "That in all actions perfonal, real, or mixt, the death of either party, between the verdict and the judgment, fhall not hereafter be alledged for error, fo as fuch judgment be entered within two terms after fuch verdict."

And where any judgment after a verdi fhall be had, by or in the name of any executor or administrator, in fuch cafe an adminiflrator de bonis non may fue forth a fcire facias, and take execution upon fuch judgment."

A. fued a fei. fa. against C. as executor of B. on a judgment obtained by the plaintiff against the faid B. C. pleaded in abatement, that B. died before judgment, &c. To this C. replied, and fet out the flat. 17 Car. 2. c. 8. and that B. died after the verdict obtained against him, and after the day of nifi prius, and before the day in bank. Thereupon C. demurred. And the objection was, that the plaintiff ought to have fued a fpecial feire facias, and not a general one; for this fuppofes a judgment against the testator in his life-time; and the replication fhews it was entered after his death, though well entered according to the ftatute. Sed per cur. The writ is good as it is, and could not be otherwise; for had it been fpecial, there would have been a variance, the judgment being entered generally; and a refpondeas ouster was awarded. Ld. Raym. 1280.

The death of either party, before the affizes, is not remedied by this ftatute; but if the party die after the af fizes begin, though the trial be after his death, that is within the remedy of the ftatute; for the affizes is but one day in law. Yet the court faid it was in their difcretion, whether they would arreft the judgment. But in Lord Raym. 1415. it was holden not affignable for error, it ap pearing by the record, that the defendant appeared per attornatum fuum.

By the 8&9 W. 3. c. 11. f. 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 final judgment obtained therein, the faid action shall not abate by reafon thereof, if such action might be originally profecuted or maintained by the executors or adminiftrators of fuch plaintiff; and if the defendant die after fuch interlocutory judgment, and before final judgment therein obtained,

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

the faid action fhall not abate, if such action might be originally profecuted or maintained against the executors or adminiftrators of fuch defendant: and the plaintiff, or if he be dead, after fuch interlocutory judgment, his executors or adminiftrators fhall and may have a feire facias against the defendant, if living after fuch interlocutory judgment; or if he died after, then against his executors or adminiftrators, to fhew caufe why damages in fuch action should not be affeffed and recovered by him or them; and if fuch defendant, his executors or adminiftrators, fhall appear at the return of fuch writ, and not fhew or alledge any matter fufficient to arreft the final judgment, or being returned warned, or upon two writs of fcire facias it be returned, that the defendant, his executors or adminiftrators, had nothing whereby to be fummoned, or could not be found in the county, shall make default; that thereupon a writ of inquiry of damages fhall be awarded, which being executed and returned, judgment final fhall be given for the faid plaintiff, his executors or adminiftrators, profecuting fuch writ or writs of fcire facias, against such defendant, his executors or adminiftrators refpectively."

The former ftat. 17 Car. 2. makes the judgment good, as entered between the parties themselves to the fuit, though one died after the verdict, and before the judgment entered.

But by this ftat. of 8 & 9 W. 3. if a defendant dies after interlocutory judgment, and the action may be continued against his reprefentatives, the final judgment must be against the representatives, for they are exprefly taken notice of for that purpose; and the fcire facias against them muft be fpread and appear on the fame record. Vide1 Salk. 42. If a defendant 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 adminiftrator must be to fhew caufe why the damages affeffed fhould not be recovered. Goldfworthy v. Southcot, B. R. 1 Wilf. 243.

The plaintiff, as adminiftrator to 7. S. fued a feire facias against the defendant, fetting forth, that his inteftate fued the defendant as executor in fuch an action, and had judgment by nil dicit, on which a writ of inquiry was awarded, which abated by the inteftate's death before the return; that adminiftration was granted the plaintiff, and commanded

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Of the Scire facias to continue a Suit by and against the Reprefentatives of one of the Parties, dying before final Judgment.

manded the sheriff to fummon the defendant to fhew caufe, why the plaintiff, as adminiftrator, fhould not have judgment to which sci. fa. the executor pleaded a bond of his teftator's, on which judgment had been recovered, and no affets ultra. To which plea plaintiff demurred, and had judgment; for the ftatute never intended that the executor fhould ftand in any other circumstances, to make another defence than the party himself might have made against the inquiry; and he could have pleaded nothing but a release, or other matter in bar arifing puis darrein continuance. He is, by the words of the ftatute, to fhew caufe why damages in fuch cafe fhall not be affeffed and recovered; and if he shall appear at the return, and not fhew any matter fufficient to arreft the final judgment, then a writ of inquiry shall be awarded, &c. And arrefting judgment is by matter apparent in the record, and not extrinfic; and heretofore they pleaded in arreft of judgment, as now it is moved. And the executor cannot be hurt by this, for the judgment is only de bonis teftatoris, as if recovered against the teftator himfelf. Salk. 315.'

The defendant died after the rule was out, but before the time given to plead by a judge's order expired; and the plaintiff figned an interlocutory judgment, and fued out a fcire facias against the defendant's executor upon this statute, to fhew caufe why damages fhould not be affeffed and recovered; but on motion the court fet afide the proceedings for irregularity, as the writ abated by the death of the defendant before interlocutory judgment was figned, notwithstanding the rule to plead was, out. And fo held in Sibert v. The executor of general Ruffel, Mich. 9 Geo. 2. Wallop v. Irwin, Wilf. 315.

Note: The tefte and return of fuch writs of feire facias are according to the action, whether that is by bill or original; and proceedings therein are the fame as in other cafes of feire facias.

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

NE that is no party to the record, recognizance, fine or judgment, as the heir, executor or adminiftrator, though they be privy, and it be within the year, shall have no writ of execution, but a feire facias to enable themselves to the fuit; and so of the tenant or defendant, for the alteration of the perfon altereth the procefs: otherwife in the cafe of a ftatute ftaple or merchant, because the process is given by other acts of parliament. 2 Inft. 471. Cart. 112, 193. Godb. 83.

But if there be two plaintiffs in a perfonal action, and one of them dies, pending the fuit, that thall not put the other to a fcire facias; fo if one of the defendants die, because the fame party ftill remains on record, 7 Mod. 68. but the way is now, to fuggeft the death of the party upon the roll, on record, at whatever ftage of the fuit he died, according to 8 & 9 W. 3. c. 11. f. 7.

So if there is judgment against A. on which a fi. fa, is fued out; but before execution thereof A. dies inteftate; there needs no fcire facias to renew this judgment, but execution of the goods under that writ of fi. fa. may be made in the hands of the adminiftrator, Farrer v. Brooks. For, as the party himself could not have made any defence to the writ of execution, there is no reafon that his reprefentative fhould be in a better condition.

But if there be judgment in debt against two, and one dies, a fcire facias lies against the other alone, reciting the death; and he cannot plead, that the heir of him deceased has affets by defcent, and demand judgment if he ought to be charged alone; for at common law, the charge upon a judgment, being perfonal, furvived; and the ftat. Weft. 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 fuggeftion, or by an audita querela. Vide Bac. Abr. 4 vol. 419.

If an executor brings a fcire facias on a judgment, or a recognizance, and gets a judgment quod habeat executionem, and dies inteftate, the adminiftrator de bonis non must bring a fcire facias upon the original judgment, and cannot pro

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