86 Not necessary. [Вк. І. August in the same year, 1843. Against the other defendant, nothing was done upon the said writ of ca. sa., but the same was unexecuted, and still remains in the sheriff's office so unexecuted as to him the defendant in question. Now the first observation to be made is, that the writ of ca. sa., a writ in execution sued out in due time, (as was the case here,) with reference to the judgment, does not expire by lapse of time, as in mesne process, where the duration is limited, but such writ of ca. sa. remains in force until executed. This, I apprehend, is quite clear, and stands in need of no authority. But it may be mentioned that this is assumed as a principle in the case of Greenshields v. Harris (b), to which I shall have occasion to refer upon a point more immediately bearing upon the case. And the question now arises whether, in order to justify the issuing of the writ of fi. fa., (the writ in question) a return should have been previously made to the ca. sa., or whether it be sufficient that materials exist for completing the roll, so as to warrant the issuing of the fi. fa. If an actual return by the sheriff be indispensable, as that has not been made, the fi. fa. is irregularly sued out, otherwise if it be that sufficient materials exist for completing the roll. That there are such materials in the present case is clear, because, the writ of ca. sa. remaining in the sheriff's office unexecuted as to the present applicant, he (the sheriff) may return as to him non est inventus. Then is that enough? And upon this, the important and material part of the case, I feel that I ought to be governed by the decision of the Court in the before-mentioned case of Greenshields v. Harris. This is the language of the Court: In this case the writ may be regularly entered on the roll, and if there be materials to make the roll up that is sufficient. The production of the writs with the sheriff's return thereon, is an authority for the officer to make up the roll.' I think therefore that the rule must be discharged." An actual return and filing, therefore, of the ca. sa., provided it has been sued out within the year, is not necessary if the materials for making a return exist, in order to warrant the issuing of any other writ of execution, or putting in force the same writ of execution so unexecuted, at any time so long as it remains in force (c). As to a writ of ca. sa., we have seen that it remains (b) 2 Dowl. 272, N. S.; S. C., 9 M. & W. 775. (c) Simpson v. Heath, 5 M. & W. 631; Greenshields v. Harris, 2 Dowl. N. S. 272. } CH. VII.] Exemption applies only to Lapse of Time. in force till it is executed. And with respect to other writs of execution it has been long held that one sort of writ sued out, returned, and filed, will support the awarding of a different kind of execution afterwards; thus a ca. sa. or elegit may issue after the year upon a fi. fa. sued out, returned, and filed within the year (d). So the writs of fi. fa., ca. sa., and elegit, may all be sued out at the same time, or several of each may be issued at the same time into several counties, since it is not necessary to enter them on, or even to carry in the roll, until one has been executed, and it becomes necessary to issue another (e). Formerly it was held that if either writ had been effectually executed, then nothing could be done on another till the first had been returned; as on principle two writs could not be had and acted upon at the same time (f). But now, supposing a fi. fa. were first issued within the year, and under it a part only of the debt had been realized, it seems, on the authority of Franklin v. Hodgkinson (g), and the cases above referred to, that new writs of either kind might issue for the residue, at any time after the year, without resorting to a scire facias, and this without first returning and filing the first writ (h). to a scire has been 87 It is no objection to a scire facias that it has been unnecessarily No objection sued out, as where a fi. fa. has issued within a year after the judg- facias that ment was entered up, so that the plaintiff might have had execution unnecesby continuing it without a scire facias (i). But if any goods have sarily sued been seized under the fi. fa., that may be pleaded as a satisfaction, so far as they go to liquidate the debt (i). the time of This exemption from the necessity of issuing a writ of scire This exemption applies facias applies, however, only to the time when, but for the pre- only to vious issuing within the year after the judgment of a writ execution, a writ of scire facias would be required: there is exemption in such cases from the necessity of issuing a writ (d) 2 V. Wms. Saund. 68 g, n.; in Aires v. Hardress, 1 Stra. 100, "a fi. fa. was taken out within the year, and nulla bona returned and continued down for several years, and then a ca. sa. issued, and it was questioned whether or no this was regular. The Court, after taking time to inquire, said that if this were a new case they should think it hard to take away all writs of scire facias, but the practice had gone so far of issuing the no not to cases of is a new writ, and where there 88 Not necessary to revive Judgment against an Insolvent. [Bк. I. party to the scire facias, where it is required on other grounds-as where a new party is sought to be made chargeable (1). record. Scire facias not necessary to revive judg warrant of By the 1 & 2 Vict. c. 110, s. 87, which requires an insolvent debtor to execute a warrant of attorney to his assignees authorizment on a ing the entering up of a judgment against him for the amount of attorney his debts, which judgment is to have the force of a recognizance given by an insolvent and, by leave of one of the superior Courts, may be put in exeVict. c. 110, cution at any time for such sum as under the circumstances of sect. 87, by the case the Court may order; it is enacted, that "no scire facias under 1 & 2 reason lapse of time. Exemption confined to required by lapse of time. shall be necessary to revive such judgment on account of any lapse of time, but execution shall at all times issue thereon by virtue of the order of the said Court" (m). This statutable exemption from the necessity of issuing a scire case where facias where by lapse of time it would be required in ordinary cases, is confined to that circumstance; and there is nothing in the section to extend the exemption to those cases in which there is a change of parties by death or otherwise-as where the executor or administrator of an assignee should seek to put in force such a recognizance, and in which in ordinary cases a scire facias would be necessary because of there being a new party to the record (n). (1) See ante, book i. ch. i. p. 9. (n) The following is the 87th sect. warrant of attorney is hereby declared not to be within the meaning of the said act passed in the third year of the reign of his late majesty King Geo. IV. nor shall it be necessary that the same should be executed in the presence of an attorney for such prisoner, according to the provision herein before in that behalf contained; and the order of the said Court for entering up such judgment shall be a sufficient authority to the proper officer for entering up the same, and such judgment shall have the force of a recognizance; and if at any time it shall appear to the satisfaction of the said Court that such prisoner is of ability to pay such debts, or any part thereof, or that he is dead, leaving assets for that purpose, the said Court may permit execution to be taken out upon such judgment, for such sum of money as, under all the circumstances of the case, the said Court shall order, such sum to be distributed rateably amongst the creditors CH. VII.] Nor to revive a Rule of Court. not neces 89 So also it seems, that under the 18th section of the same statute Scire facias (1 & 2 Vict. c. 110), a writ of execution may issue on a rule of sary to Court after the expiration of a year and a day, without a scire facias, rule of or any application to the Court. revive a Court in the nature of a judgment under 1 & 2 Vict. c. 110, account of time. By that section of this statute, it is enacted "that all decrees and orders of Courts of equity, and all rules of Court of common s. 18, on law, and all orders of the Lord Chancellor, or of the Court of lapse of Review, in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges or expenses, shall be payable to any person, shall have the effect of judgments in the superior Courts of common law; and the persons to whom any such moneys, or costs, charges, or expenses shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior Courts of common law, with respect to matters depending in the same Courts, shall and may be exercised by Courts of equity with respect to matters therein depending, and by the Lord Chancellor and the Court of Review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy; and all remedies hereby given to judgment creditors, are in like manner given to persons to whom any moneys or costs, charges or expenses, are by such orders or rules respectively directed to be paid." In the case of Spooner v. Payne (o), the construction of this section of the statute devolved upon the Court of Queen's Bench. In that case a rule was obtained by the defendant for setting aside an award made in the cause, which rule was discharged with costs. The costs were taxed, the Master's allocatur bearing date the 7th of February, 1845; and on the 17th of November, 1846, of such prisoner according to the mode hereinbefore directed in the case of a dividend made after adjudication; and such further proceedings shall and may be had upon such judgment as may seem fit to the discretion of the said Court from time to time, until the whole of the debts due to the several persons against whom such discharge shall have been obtained shall be fully paid and satisfied, together with such costs as the said Court shall think fit to award; and no scire facias shall be necessary to revive such judgment on account of any lapse of time, but execu tion shall at all times issue thereon by (0) 17 L. J., N. S., Q. B. 68; S. C., 90 Scire facias not neces the stats 7 110 & 113, in order to have execu a member of a jointstock or banking company, incorporated under either of Not necessary against a Member of a [BK. I. the defendant was arrested on a ca. sa., no scire facias having issued on the allocatur. A rule was afterwards obtained, calling on the plaintiff to show cause "why the writ of ca. sa. issued in this cause should not be set aside, and why the defendant should not be discharged out of custody," and after argument the Court held "that no scire facias or special leave was made necessary by the stat. (1 & 2 Vict. c. 110, s. 18), or by any legal principle; and that according to the practice now existing, the proceedings were regular," and the rule was discharged (p). A rule of Court reducing the amount of a verdict, is however no answer to a scire facias on a judgment founded on that verdict ; but an application must be made to the Court to set aside the judgment, on the ground that a remedy had been obtained in the rule (q). It has been seen that it is a rule, whenever it is sought to fix a sary since party on a judgment given against another, that it must be done & 8 Vict. cc. by scire facias (r), to which, if the party sought to be fixed have any answer or defence, he may plead it. The case of Cross and tion against others v. Law, Public Officer, (in which this rule was established in cases of public companies, where the public officer was sued, and on judgment being obtained against him it was sought to issue execution against a member of such a company), arose on the Banking Co-partnership Act, the 7th Geo. IV. c. 46, the 13th those Acts, section of which statute enacts, that "execution upon any judgment, in any action obtained against a public officer for the time against the being, of any such corporation or co-partnership carrying on the business of banking under the provisions of this Act, whether as plaintiff or defendant, may be issued against any member or members for the time being, of such corporation or co-partnership &c." And the same principle was affirmed on error in the Exchequer Chamber, in the case of Ransford, Public Officer, v. Bosanquet (8). on a judg ment obtained public officer of such company. The same rule was held to apply to joint-stock trading companies, in the then existing Acts, relating to which was a similar provision to that contained in the Banking Co-partnership Act, 7 Geo. IV. c. 46, ss. 12 and 13 (t). And so the rule continued (p) See further as to the practice, Cetti v. Bartlett, 9 M. & W. 840. (g) Farmer (Executrix) v. Mottram, 6 M. & G. 684; S. C. 1 D. & L. 781. (r) See ante, ch. i. p. 6; and see Cross v. Law, 6 M. & W. 223; and Ransford v. Bosanquet and others, 12 Ad. & E. 813; and 2 Q. B. 972; and (t) See 4 & 5 Will. IV. c. 94, s. |