96 On Debts to the Crown by Specialty. [BK. I. The debt so found and recorded, on an affidavit that it is in danger, may be immediately levied by extent (1). Secondly, as to debts due to the Crown by specialty. Anciently, bonds given to the Crown were given with a warrant of attorney to confess judgment, and then, though the King could not have execution of his bond debt which was not of record, yet he could issue an extent on the judgment confessed to him. But by the 33 Hen. VIII. c. 39, a bond given to the King was made to be of "the same nature, kind, quality, force, and effect, to all intents and purposes, as a statute staple (m), and by consequence he could sue out a writ of levari facias upon it." And this writ will issue immediately upon affidavit before a Baron that the Queen's debt is in danger (n). It was at one time held that on a bond or recognizance to the King for the performance of covenants or other collateral things, a scire facias should always first issue and not an immediate extent (o); but it was afterwards decided that on an affidavit of danger, and that the condition of the bond was broken, an immediate extent might issue in every case, as well where the bond was for the payment of a sum certain, as where it was for the performance of covenants or other collateral acts (p). A recognizance at common law to the Crown is an obligation of record entered into by a person or by sureties before some Court of Record, or magistrate duly authorized with condition to do, or that some person shall do some particular act (q). A recognizance by statute is founded on a statute merchant or statute staple, or is in the nature of a statute staple, by the 23 Hen. VIII. c. 6, of which we have before treated (r). On an affidavit of danger, and that the recognizance is forfeited, an immediate extent it seems may by the Queen's prerogative issue to seize the debtor's body, lands, and goods for the amount (s) without any scire facias. In all these cases, however, the ordinary and the proper mode of proceeding, where it is doubtful whether the bond or recognizance be forfeited, is by scire facias (t), in which the debtor (1) See 2 Tidd, 8th ed. 1093. (n) Gilb. Exch. 166 and 102. (0) Rex v. Bishop of Exeter, West on Extents, Append. and 48. (p) Rex v. Moseley, West on Extents, Append. 325; Bunb. 203; West on Extents, 47, 48. (q) 2 Tidd, 8th ed. 1131; Com. Dig. tit. Debt, G, 1; "if a man gives an obligation, recognizance, &c. to the King, he becomes indebted to the King." (r) See ante; and 2 Tidd, 1132,et seq. (s) 2 Tidd, 8th ed. 1090; Gilb. Exch. 53. (t) Gilb. Exch. 166; 2 Tidd, 8th ed. 1092. CH. VII.] When Sci. Fa. not necessary. has an opportunity of pleading a denial of the debt, that the condition of the bond has not been broken, that the recognizance is not forfeited, or a release or pardon, or other matter of excuse; and it is only in cases where the Queen's debt is in danger of being lost, and on an affidavit of that fact, that a writ of immediate extent is allowed to issue (u). And when the debtor is solvent, the Queen has not an election to proceed against him, either by extent or scire facias, but the latter is the only course (v). The power to issue writs of capias, extendi facias, &c., in such cases was given by the 33 Hen. VIII. c. 39, “if need shall require,” as unto the said Court shall be thought by its discretion expedient, for the speedy recovery of the King's debts." 99 66 "The immediate extendi facias, therefore, is only issued when the Court in its discretion thinks that need does require. The exercise of this discretion is shown by the fiat which the Court, or (according to the modern practice) any one of the Barons grants; and the need is shown by the affidavit of the insolvency of the defendant, and the danger of the debt being lost; at the foot of which affidavit the fiat is written by the Baron (w)." necessary 97 King's debt affidavit of It is also one of the prerogatives of the Queen to take assign- Nor is it ments of the debts of her debtors (x), which by the common law before extending the of England no subject could do (y). And if any person is indebt- debt of the ed to the King's debtor, by specialty of record, and the King's or, on an debtor has reason to believe that the debt to him is in danger; danger. he can procure an extent to be issued pro formá against himself, under which an inquisition is taken of "his debts, credits, specialties, and sums of money in whosesoever's hands they be," and on this inquisition the sheriff may seize for the debt due to the Crown debtor, as due to the Crown (2). This writ is called an extent in aid (a). By the Statute 57 Geo. III. c. 117, the operation of this writ has been confined to cases where persons are indebted to the Crown by debts of record and specialty, except in certain cases (u) 2 Tidd. 1104; West, 18. (e) 3 Price, 288, 292; 2 Tidd, 8th ed. 1092. (w) West, 19, 47; 2 Tidd. 8th ed. 1110. (x) Gilb. Ex. 166. (y) This is done now by bills of exchange under the law merchant. (z) "A debt due to the King's debtor shall be extended for the King's debt;" Com. Dig. Debt, G, 7. (a) West. 15; Rex v. Gibbon, Bunb. Rep. 24. "It was said in this case H 98 When Sci. Fa. necessary. [BK. I. mentioned in the statute; but when a Crown debtor is entitled to an extent in aid, he may still issue it for a simple-contract debt due to himself (b), on affidavit that it is in danger of being lost (c). Without this special reason it would seem that the Court cannot give warrant for a present extent in aid, but the proceeding must be by scire facias (d) in the ordinary mode. It has been decided that debts due in the third degree may be seized under an extent in aid (e). Debts to the King's debtor are not bound till the teste of the inquisition (ƒ). All debts to the Queen bind the lands of a debtor from the time they are contracted; and his goods from the teste of the extent (g). Having now treated of the exceptional cases to the ordinary rules requiring a scire facias to issue before execution can be had of a debt of record, we will proceed to consider the second branch of the subject where a scire facias is required because a new party not on the record becomes interested in the judgment. BOOK THE SECOND, CHAPTER I. OF THE WRIT OF SCIRE FACIAS TO REVIVE A JUDGMENT The Rule where a new Party to the Suit, p. 99. Scire facias not necessary where Foundation of the Rule, p. 100. A Suggestion is applicable only to collateral Facts, p. 102. Scire facias necessary before pro ceeding against a Member of a Even where the Company's Act Scire facias not necessary in case So where a nominal Plaintiff or Application of the Rule, p. 105. where a the suit. Ir has been already briefly stated in the first and introductory The rule chapter (a), that it is a general rule that in all cases where a new new party person, who was not a party to a judgment or recognizance, derives a benefit by, or becomes chargeable to the execution, there must be a scire facias to make him a party to the judg ment (b). But where the execution is not beneficial or charge (a) Ante, Introduction, p. 6. (b) 2 V. Wms. Saund, 6, n. 1; Fitz. Execution, 143; and see generally, Bac. Abr.tit. Scire Facias, B, C, 4; 2 V. Wms. Saund. 71e, n.; 2 Chitty's Arch. 8th ed. 1016; Bac. Abr. tit. Execution, F. "One that is not party to the record, recognizance, fine, or judgment, as the heir, executor, or administrator, 100 not neces sary where party not Rule where a New Party to the Judgment. [BK. II. Scire facias able to a person who was not party to the judgment, then it seems this rule does not apply, and a scire facias is unnebeneficially cessary (c), a suggestion of the change of party on the roll in that case being sufficient (d). interested. Foundation of the rule. Reason of the rule. This rule is founded on the decision of Lord Holt in Penoyer v. Brace (e), "that where any new person is either to be better or worse by the execution, there must be a scire facias because he is a stranger, to make him a party to the judgment, as in case of executor or administrator, otherwise where the execution is neither to charge nor benefit any new party as in the case of survivorship, for there is no reason why death should make the condition of the survivors better than before." The reason for the rule is that the execution must be warranted by the judgment, and the new party being a stranger to the judgment, he not being named on the record, the judgment would not warrant any execution for or against him, until he should be made. a party to it (ƒ). The proceeding by scire facias, where there is a new party to the suit, is therefore adopted in order to make the record consistent with itself. This is well explained by Lord Abinger in giving judgment in the case of Harwood v. Law (g) : "When the Courts direct a scire facias to issue, it is only with the view of rendering their own records consistent. The first case in which a question of this kind arose was that of Bartlett v. Pentland (h), where the plaintiff having obtained judgment against the secretary of the St. Patrick's Assurance Company, (c) 2 Tidd, 8th ed. 1166; Webb, Pub. Off. v. Taylor, 1 D. & L. 676. (d) Bradley v. Eyre, 11 M. & W. 450; S. C., 1 D. & L. 274; Penoyer v. Brace, 1 Ld. Raym. 245; as where there is a survivorship." Moore, 367; Isam's case, Noy, 150; Carter, 112, 122, 180, 193. (e) 1 Salk. 319, 320; and 1 Ld. Raym. 245, S. C.; and see 2 Inst. 471, ante, p. 99, n. (b); Proctor v. Johnson, 1 Ld. Raym. 669; Withers v. Harris, 7 Mod. 68; Reg.v. Ford et al. 2 Ld. Raym. 768. (f) Penoyer v. Brace, 1 Ld. Raym. 244; 1 Salk. 320. And see Howard v. Pitt, 1 Show. 403. Every execution ought to follow the record, and the writ must agree with it, otherwise it is illegal, and so are all the books." Vicars v. Okey, 2 Keb. 307; Sid. 351; 1 Keb. 92, 123. (g) 7 M. & W. 206; 8 Dowl. 904. This was an action against the defendant as the public registered officer of the Imperial Bank of England, and judgment having been obtained against him for the amount sought to be recovered by the plaintiff as such public officer, he was taken in execution for the debt and costs. It appeared that he was also a member of the company. It was moved to discharge him out of custody on the ground that no scire facias had issued against him previous to his being taken in execution. And it was held that no scire facias was necessary, no facts being shown to the Court that he was not the proper ob. ject of execution upon this judgment. (h) 1 B. & Ad. 704. |