PART I. BOOK III. should be in a worse situation when the defendant dies before final judgment, than when he dies after it (s). In a case where the defendant died intestate after interlocutory judgment, and a writ of inquest of damages executed, but before it was returned the plaintiff declared in scire facias against the administrator, who pleaded plene administravit, and set forth in his pleas divers specialties due and owing from the intestate, and charging the estate; the plaintiff having replied, admitting the truth of the pleas, and praying judg ment and execution of the goods of the intestate quando acciderent, entered up final judgment to have execution against the defendant as administrator according to the force, form, and effect of the said recovery, no recovery having been before stated in any part of the proceedings on the record, and no final judgment having been given in the original action, and no provision being made by the judgment for the payment of the specialty debts; and it was held that the judgment was erroneous, and it was reversed with costs (t). Death of one of several Plaintiff's or Defendants. 3. Scire Fa- Of a Feme Death of one of several Plaintiffs or Defendants.] Where there are two or more plaintiffs or defendants, and one dies after judgment, execution by fieri facias or ca. sa. may be sued out as in other cases without any scire facias (u); and the execution must be in the joint names of all the plaintiffs or defendants, as the case may be, and must in other respects pursue the judgment (v); but it should be executed against the survivors only (x). If the plaintiff, however, wish to sue out an elegit against the lands of a deceased defendant, as well as against the survivor, he may have a scire facias against such survivor and the heir and terretenants of the deceased, to have execution against the lands and goods of the former, and the lands of the latter (y). 3. Scire Facias, upon the Marriage of a Feme Plaintiff or Defendant. Marriage of a Feme Plaintiff.] If a feme sole obtain judgment, and marry before execution, a scire facias must be brought by husband and wife, in order to have execution of the judgment(); and if, after execution awarded on this scire facias, but, before execution, the wife die, the husband alone may have execution upon the judgment, without even taking out administration (a). So, if the husband and wife obtain judgment for a debt due to the wife dum sola, the husband may have a scire facias to execute the judgment (b); or he may, it seems, sue out execution in the names of himself (8) 2 Saund. 72, n: Tomkins v. Gratton, Say. 266: 2 Williams, Exors. 1232. See form of the sci, fa, upon the first judgment, Chit. Forms, 490; and of the sci. fa. on the final judgment, Id. (t) Poulett v. Wightman, 1 Bligh, N. S., 138. (u) 6 Bac. Abr., Sci. Fa. C. 4: Withers v. Harris, 7 Mod. 68; 2 L. Raym. 808, S. C.: Brace v. Pennoyer, 5 Mod. 339: Pennoyer v. Brace, Carth. 404: Howard v. Pitt, 1 Show. 402. (v) See Vol. I. 455. (a) Pennoyer v. Brace, 1 L. Raym. 244: Comb. 541; 1 Salk. 319, S. C.: see Withers v. Harris, 2 L. Raym. 808: 7 Mod. 68, S. C. (y) Panton v. Terretenants of Hall, Carth. 107; 2 Saund. 72 p: and see 6 Bac. Abr., Sci. Fa. C. 5; 2 Id. Execution, G. 1: see Vol. I. 444. See forms, Chit. Forms, 492. (z) 2 Saund. 72 k. See the form, Chit. Forms, 493: Thes. Brev, 256, 263: Clift. 681. (a) 6 Bac. Abr., Sci. Fa. C. 6: Woodyer, v. Gresham, 1 Salk. 116; Comb. 455: Carth. 415; Skin. 682, S. C. (b) Eyres v. Coward, 1 Sid. 337: Butter v. Delt, Cro. El. 844: Obrian v. Ram, 3 Mod. 158: 6 Bac. Abr., Sci. Fa. C. & and wife, without a scire facias. Where the wife recovers a judgment while single, and dies during coverture, and the husband has not been made a party to the judgment by scire facias in her lifetime, it would seem that the husband must take out administration to the wife before bringing scire facias; and where in such a case the husband died without taking out administration, and his administrator brought scire facias, on demurrer, judgment was given for the defendant (c). And if the husband and wife have judgment for a debt due to the wife as executrix, and the wife die before execution, the succeeding executor or administrator de bonis non, and not the husband, shall have the scire facias (d). CHAP. III. SECT. 1. dani. Marriage of Feme Defendant.] If judgment be recovered Marriage of against a feme sole, and she marry before execution, a scire Feme Defenfacias must be brought against the husband and wife, before the judgment can be executed (e); and if, after execution awarded upon this scire facias, but before execution, the wife die, the husband shall be liable to the execution (f). However, in a case where a feme sole defendant married after interlocutory judgment, the court held that the plaintiff might proceed to final judgment and execution by ca. sa. against her, without suing out a scire facias to make the husband a party (g). And in a more recent case, where a feme sole defendant in ejectment married before trial, and the plaintiff proceeded to judgment, and sued out an habere facias and a f. fa. against her by her maiden name, without a scire facias, the court held that there was no pretence for setting aside these writs on that account; for the writ of possession could not affect the husband or his property, the verdict proving that the wife had no interest in the term; and as to the fi. fa. it was merely inoperative, as the wife could have no separate property in the goods upon which such a writ might be executed (h). Where a feme covert, sued as a feme sole, had judgment on a plea of coverture, and execution was sued out in the names of her and her husband, the court held it to be clearly irregular; execution should not have been sued out in the name of the husband, until he had first been made a party to the judg ment by scire facias; but, in this case, the wife might have sued out execution in her own name, because the plaintiff, by declaring against her as a feme sole, was concluded from denying it (i). 4. Scire Facias, in case of Bankruptcy or Insolvency. ruptcy or In Bankruptcy, &c., of Plaintiff.] If a party obtain inter- 4. Scire Falocutory judgment, and before final judgment become bank- cias on Bank rupt, his assignees may proceed to final judgment in his name, solvency. and then sue out a scire facias to make themselves parties, in of Plaintiff. order to have execution (j); and even where execution was (e) Betts v. Kimpton, 2 B. & Ad, 938. (d) Beamond v. Long, Cro. Car. 208, 227; W. Jon. 248, S. C.: 6 Bac. Abr., Sei. Fa. C. 6. (e) 2 Saund. 72 k. See the form, Chit. Forms, 493: Thes. Brev. 247, 251. (f) 6 Bac. Abr., Sci. Fa. C. 6: Obrian v. Ram, 1 Salk, 116: Woodyer v. Gresham, 826 PART I. Scire Facias-on Judgment in Debt on Bond. BOOK III. taken out in the name of the bankrupt, without a scire facias being sued out by the assignees, the court refused to set aside the proceedings (k). If a party have final judgment, upon which the defendant brings a writ of error, and pending the writ of error the plaintiff become bankrupt, his assignees ought to proceed to an affirmance of the judgment in the bankrupt's name, and then sue out a scire facias in order to have execution (1). The court have allowed the sci. fa. to be amended, even after issue joined, by inserting the name of the official assignee (m). Bankruptcy, &c., of Defendant. Under Lords' Not necessary The practice, it should seem, is the same, where the plaintiff takes the benefit of an insolvent act. Bankruptcy, &c., of Defendant.] If a party have been a bankrupt, or have taken the benefit of an insolvent act, or have compounded with his creditors, and afterwards become a bankrupt, and obtained his certificate, his person only shall be thereby protected; but his future estate and effects, (with the exception of his "tools of trade, necessary household furniture, and the wearing apparel of himself, his wife and children"), unless his estate pay 15s. in the pound under the fiat, will vest in the assignees under the first fiat, who may seize them in the same way as they may seize property possessed by the bankrupt at the issuing of the fiat (n). Since this enactment, therefore, the property being vested in the assignees, the judgment-creditor in these cases has not, as such creditor, any right of seizing such future effects, as he formerly had. The former practice was, that if the creditor in such a case obtained a judgment, which was signed after the defendant had obtained his certificate under the second commission, it might have been special against his future estate and effects, with the exception of his tools of trade, &c.; but where the judgment was had before the defendant had obtained his certificate, it must have been a general judgment (o), and the plaintiff could not thereupon sue out a special execution against the defendant's future effects (p), but must have proceeded by scire facias (q). By the Lords' Act (r), the future effects of insolvents, discharged under that act, are rendered liable to their debts, with the exception of the necessary wearing apparel and bedding of the insolvent and his family, and the necessary tools for the use of his trade or occupation, not exceeding 107. in value in the whole. If a general judgment be had against a person before his discharge under this act, a special execution cannot afterwards be sued out upon it, without first suing out a scire facias (8). No sci. fa., on account of lapse of time, is necessary to re (k) Waugh v. Austen, 3 T. R. 437: and see Plummer v. Lea, 5 Mod. 88: Winter v. Kretchman, 2 T. R. 45. There does not appear to be any sound reason for allowing this, and at the present day it would be safest to make the assignees parties to the judgment by a scire facias. (1) Kretchman v. Beyer, 1 T. R. 463, 631: Winter v. Kretchman, 2 Id. 45: Monk v. Morris, 1 Mod. 93; 1 Vent. 193, S. C.: Hewit v. Mantell, 2 Wils. 372: Bibbins v. Mantell, Id. 378. (m) Holland v. Phillips, Q. B., T. 1839; 3 Jurist, 795. (n) 6 G. 4, c. 16, s. 127. See the effect of this section discussed, Young v. Rishworth, 3 Nev. & P. 585, (0) 2 Saund. 72 g, h. (p) Burton v. Mardin, 1 T. R. 82. (q) See 2 Saund. 72 h; 1 Id. 358 n: Gill v. Scrivens, 7 T. R. 27: Edmonson v. Parker, 3 B. & P. 185: and the forms, Tidd's Forms, 469, 471. (r) 32 G. 2. c. 32, s. 20, rendered inoperative for the future by the 1 & 2 V. c. 110. (s) Buxton v. Mardin, 1 T. R. 82: see also Spalton v. Moorhouse, 6 T. R. 366: and a form, Tidd's Forms, 471. CHAP. III. SECT. 1. vive the judgment on the warrant of attorney, executed by an insolvent before adjudication, pursuant to the 87th section of the 1 & 2 V. c. 110, (the late insolvent act), and execution may at all times issue thereon, by virtue of the order of the insol- Judginent vent court. in case of under 1 & 2 Vict. c. 110, & 87. 5. Scire Facias, on a Judgment in Debt on Bond. In debt on bond or other instrument in a penal sum, condi- Scire Fationed for the performance of covenants, or for the doing of cas, ent Judgment on any other specific act, although the judgment is entered up Bond. for the entire penalty, yet execution is sued out for the amount of such damages only as the jury assess upon the breaches assigned or suggested, as has been already mentioned (ante, 723, 724). The judgment, however, still remains as a security to the plaintiff for such damages as he may sustain by any further breaches; and in case of any such further breaches, the plaintiff shall have a scire facias upon the judgment, against the defendant, his heirs, terretenants, or executors or administrators, suggesting such other breaches, and summoning him or them to shew cause why execution should not be awarded upon the judgment, upon which there shall be the like proceeding, as was in the action of debt upon the bond for assessing damages upon trial of issues, joined upon such breaches or inquiry thereof, upon a writ to be awarded for that purpose (t). We have seen, ante, 683, that this scire facias is not necessary on a judgment upon a warrant of attorney; and that though it is usual to insert in such warrant a clause dispensing with the scire facias, it is unnecessary. The scire facias in this case should recite the whole proceed- Form of. ings in the former action, or at least so much of them as to make it appear that the judgment is warranted by the statute; and it must then suggest the further breaches (u). Or, if the plaintiff in the original action has set forth only some of the covenants, and he now wish to recover damages for breaches of others, it should seem that he may now state these latter covenants in the scire facias, and assign breaches on them (x). The proceedings upon this scire facias are the same as in the Proceedings original action (y); but it is not necessary that there should on. be any other judgment than the usual one in scire facias, namely, an award of execution (z). The plaintiff was always entitled to costs on this scire facias, Costs on. even before the 3 & 4 W. 4, c. 42, s. 34, whether the defendant pleaded to it or not, nothwithstanding sect. 3 of the 8 & 9 W. 3, c. 11, gave costs in suits upon writs of scire facias generally, only in cases where the plaintiff obtained an award of execution after plea pleaded or demurrer joined (a). 6. Scire Facias, on a Judgment quando &c. against an Executor. If, on the plea of plene administravit in an action against an 6. On a Judgexecutor or administrator, or on the plea of riens per descent ment quando (6) 8 & 9 W. 3, c. 11, s. 8: see as to the further proceedings, ante, 723, 728: see 1 Saund. 5; 2 Id. 72 g: 187 b. (u) 1 Saund. 58 e. See the form, Chit. Forms, 354. (x) 2 Saund. 187 b. (y) See ante, 728. (a) Id.: Brooke v. Booth, 11 East, 587. BOOK III. in an action against an heir, the plaintiff, instead of taking isPART I sue on the plea, take judgment of assets quando acciderint; in &c. against an this case, if assets afterwards come to the hands of the execuExecutor. tor or heir, the plaintiff must first sue out a scire facias against such executor or heir, before he can have execution. That Defects As the judgment quando acciderint is that the plaintiff do must be sub- recover his debt, to be levied of the goods, &c., of the testator, sequent to the Judgment. which shall thereafter come to the hands of the executor, &c., it is necessary that the scire facias should state that the assets came to the executor's hands after the judgment; otherwise it would be bad (b). And in debt or scire facias on this judgment, proof of the executor's receiving assets is always, at the trial, confined to a period subsequent to the judgment (c). Recovery of Part. The Inquiry. 7. Scire Fa Cases. tiff If upon this scire facias assets be found for part, the plainmay have judgment to recover so much immediately, and the residue of the assets in futuro (d). As to the scire fieri inquiry, see post, Part II. Ch. V. Sect. 2. 7. Scire Facias, in other Cases. When special bail become fixed, by the recognisance being cias, in other forfeited, one of the modes of proceeding against them, we have Against Bail. seen, is by scire facias on the recognisance. See upon this subject Vol. I. 639 (e). The scire facias in this case is an original proceeding. Against For Restitu- Reversal in To recover ed under Elegit. If, to the pluries capias in withernam in replevin, the sheriff return nihil, a scire facias issues against the pledges (ƒ); and if no cause be shewn, another capias in withernam issues against the cattle of the pledges; and if nihil be returned to that writ, a scire facias issues against the sheriff himself (g). But this scire facias against the pledges and the sheriff is obsolete, it being the practice to proceed upon the replevin bond against the former, and by action on the case against the latter, for taking insufficient pledges, or no pledges, without bringing any scire facias. After judgment in error, reversing the judgment of the court below, if the amount of the damages awarded by the former judgment had been previously levied, but not paid over, the plaintiff in error must now sue out a scire facias quare restitutionem non, suggesting the matter of fact, namely, the sum levied, &c., before he can have a writ of restitution (h). Where a plaintiff in an action has execution by elegit, and Land extend- is put into possession of the rents and profits of the defendant's lands, if the defendant tender the debt, &c., to the plaintiff, and it be refused, or if the plaintiff have been satisfied his debt from any casual profit of the land, the defendant may have a scire facias ad rehabendam terram; or if the plaintiff have been satisfied his debt from the extended value of the (b) 2 Saund. 219 a: Mara v. Quin, 6 T. R. 1: 2 Williams on Exors. 1221. See the form, Chit. Forms. (c) Taylor v. Hollman, B. N. P. 169; 2 Williams, 1221. Quære if the judgment might not be taken of assets quando aceiderint after plea pleaded? and see a form to that effect in Mr. Archbold's collection of Practical Forms, 501, ed. 1825. Saund. 336 b. (e) 2 Saund. 72 a, b, d. And see forms of writ. Chit. Forms, index, title "Seire Facias." (f) Ante, 810: Dorrington v. Edwin, Comb. 1. (g) Ante, 810: see Trevors v. Michelborne, Hut. 77. (h) Vol. I. 380. See the form of it, (d) See Noell v. Nelson, 1 Sid. 448: 1 Chit. Forms, 124. |