A Treatise on the Writ of Scire Facias, with an Appendix of References to Forms - Thomas Campbell Foster - Google Books

Books

CONTENTS.

BOOK THE FIRST.

INTRODUCTION.-ON THE NATURE AND APPLICABILITY OF THE WRIT

OF SCIRE FACIAS.

Must be founded on a Record

Lay at Common Law in Real Actions

Was given by Statute of Westminster the Second in Personal

The Reason why it lay at Common Law in Real and not in Per-

The Reason why it is required in Personal Actions after the Ex-

piration of a Year

An Addition to the Common-law Remedy by Action on the Judg

Exceptions to the First General Rule

First General Rule-to revive a Judgment after a Year and a Day

Second General Rule-where a New Party to the Suit

In the Case of a Public Company

On a Statute Merchant or Recognizance

To repeal Letters Patent

Limitation of the Writ

Instances of its Applicability

When it is a Judicial Writ

When it is an Original Writ, or in the Nature of an Original

In the Nature of an Action

In the Nature of an Original Action

To revive a Judgment on a Recognizance

Proceedings on Old Judgment

TO REVIVE A JUDGMENT, AFTER A YEAR AND A DAY, BY OR AGAINST

THE SAME PARTIES.

Against whom it lies

Must be brought where the Venue in the original Action was laid 18

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CONTENTS.

And in the Court where the Judgment was given

The Record of the Judgment must be in Court

And, if removed, must issue out of the Court where the Record is 20

Must pursue the Terms of the Judgment, and Variance is Error. 20

Distinction in this respect between a Scire Facias and an Action

on the Judgment

On a Joint and Several Judgment

Execution may be several, though Scire Facias joint

Reversal of Judgment

Capias cannot issue on a Scire Facias in Mesne Process

Where Elegit issued

A Writ of Execution issued after a Year without a Scire Facias

When unnecessarily sued out

Judgment cannot be impeached on Motion to revive an Old Judg-

Plaintiff may be nonsuited

Writ of Error on, lies to Exchequer Chamber

In the Case of the Crown

Omission to sue out Writ, when required, Ground of Error

Limitation of the Writ

TO RECOVER DEMANDS ARISING AFTER JUDGMENT IN DEBT ON

Depend on the Stat. 8 & 9 Will. III. c. 11, s. 8

Judgment to remain as a further Security to answer future

The Common-law Rule

The Statute extends both to Bonds with Conditions thereunder

and to Bonds with Covenants, and Agreements in some other

Indenture or Deed

To what Cases the Statute does not extend

All Cases in which Computation only is necessary are not within

The Bond only a Security to the Amount of the Penalty

Cases to which the Statute applies and where a Scire Facias is ne-

The Jury, though summoned only on the common Venire, must

assess Damages on Breaches assigned

The Damages bounded by the Amount of the Penalty of the Bond 39

The Statute compulsory as to Proceedings in all Cases within it

Scire Facias, on further Breach of Condition of Bond contained

in another Instrument

39

On further Breaches of Conditions and Agreements contained in

same Instrument

Seire Facias for further Breach in Non-payment of an Annuity 43

Seire Facias for further Breach in Non-payment of further Instal-

TO LEVY RESIDUE OF DEBT AFTER EVICTION FROM POSSESSION UNDER

Why called an Elegit

Was formerly a full Satisfaction of the Debt

Though the Debt were unsatisfied by the Plaintiff's Eviction from

The Remedy given by Stat. 32 Hen. VIII. c.

If Part of the Lands taken in Execution remain in Plaintiff's

Hands, the Statute does not apply

If no Lands are extended the Elegit is in the nature of a Fi. Fa.

SCIRE FACIAS AD REHABENDAM TERRAM.

When not necessary

When necessary in case of an Elegit upon a Judgment, or Recog

nizance at Common Law

On Tender in Court of Residue of Debt

When Satisfaction of the Debt has arisen from accidental Profits. 60

Does not lie upon a general Averment that the Debt has been

Mode of accounting in Equity

Motion for Reference to Master to take an Account

Accounting since Stat. 1 & 2 Vict. c. 110

Interest allowed on Judgment

The Defendant may also have a Scire Facias to account

Necessary in all Cases on an Extent on a Statute Merchant, Sta-

tute Staple, or Recognizance in the Nature of a Statute Staple. 61

It lies also for the Grantee of the Reversion of the Lands extended

Mode of accounting in Common-law Courts

SCIRE FACIAS QUARE RESTITUTIONEM NON ON A JUDGMENT

When the Writ is required

64

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CONTENTS.

In what Cases it is not necessary

The Reason why it is necessary to issue the Writ

The Writ also necessary when there has been a Change of Parties,

and a Judgment has been reversed in Error.

EXCEPTIONS TO THE GENERAL RULES REQUIRING A WRIT OF

Seire Facias not necessary where Judgment has been suspended

by the Agreement of the Parties, till a Year and a Day after the

Even if the Agreement be by Parol

Scire Facias not necessary where the Defendant brings a Writ of

Error to revive the Judgment until after the Year from the De-

termination of the Writ of Error has expired

And if the Judgment have expired by Lapse of Time, the Writ of

Error revives it

Scire Facias not necessary where the Defendant obtains a Stay of

Execution by Injunction out of Chancery

Scire Facias not necessary to revive a Debt secured on a Statute

Merchant, Statute Staple, or Recognizance in the nature of a

Nor in case of a New Party affected by such a Security

These Recognizances of a Private Kind

Nature of a Statute Merchant

Nature of a Statute Staple

Of a Recognizance in the Nature of a Statute Staple

Reason of the Exemption of Debtors under these Securities from

Seire Facias not necessary where a Writ of Execution has been

taken out within the Year

No Objection to a Scire Facias that it has been unnecessarily sued

This Exemption applies only to the Lapse of Time, and not to

Cases where there is a New Party to the Record

Scire Facias not necessary to revive a Judgment on a Warrant of

Attorney given by an Insolvent Debtor under 1 & 2 Vict. c. 110

Exemption confined to Cases where it would otherwise be required

by Lapse of Time

Scire Facias not necessary to revive a Rule of Court in the nature

of a Judgment under 1 & 2 Vict. c. 110, s. 18, on account of Lapse

Seire Facias not necessary since the Statutes 7 & 8

and 113, in order to have Execution against a Member of a Joint-

stock or Banking Company incorporated under either of those

Acts, on a Judgment obtained against such Company or its

Experiment to render liable to Execution the Lands of a Partner in

a Banking Company framed under 7 Geo. IV. c. 46, without a

Scire Facias not necessary for the Crown to revive its Debts be-

cause of the Lapse of Time

Seire Facias not necessary for the Crown in the Case of the Death

of its Debtor, to have Execution against his Heir, Executor, or

Seire Facias not necessary for the Crown on Debts of Record,

where the Execution is a First Proceeding, without any previous

Judicial Inquiry, on an Affidavit that the Debt is in danger of

Nor is it necessary before extending the Debt of the King's

Debtor, on an Affidavit of Danger

BOOK THE SECOND.

OF THE WRIT OF SCIRE FACIAS TO REVIVE A JUDGMENT WHERE THERE

IS A NEW PARTY TO THE SUIT.

The Rule where a new Party to the Suit

Scire Facias not necessary where Party not beneficially interested 100

Foundation of the Rule

Reason of the Rule

Formerly a Suggestion on the Roll thought sufficient

But this Decision now overruled

A Suggestion is applicable only to Collateral Facts

Seire Facias necessary before proceeding against a Member of a

Public Company, after Judgment against the registered Officer 103

Even where the Company's Act enacts that it shall not be neces-

Scire Facias not necessary in case of Survivorship, Suggestion

So where a nominal Plaintiff or Defendant is added to the Record 104

Application of the Rule

OF SCIRE FACIAS AGAINST MEMBERS OF JOINT-STOCK COMPANIES.

The Rule of Law that the Execution must follow the Judgment 108

Formerly the Mode of proceeding against Shareholders of Public

Companies on a Judgment against the Company was by enter-

ing a Suggestion on the Record

Now held that a Suggestion is only applicable to Collateral Facts

affecting the same Parties

The Proceeding against a Shareholder on a Judgment against a

Public Company, it is now held, must be by Seire Facias 113, 146

Scire Facias may issue at once against Members "for the Time
being," of a Co-partnership, without Leave of the Court

Leave of the Court required before Scire Facias can be issued

against former Members

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