BOOK 111. cannot be Summoned. Judgment for ance. or otherwise-Prepare a notice (q), stating the issuing of the scire facias, and when it was left at the sheriff's office, and the purpose for which it was left. Serve it, or use your best endeavours to serve it, and, generally speaking, as long a time as possible before the return day. Judgment for Non-appearance.] Call at the sheriff's office Non-appear at the return of the writ for the return, and if the sheriff have returned scire feci (r), then, on or after the return day, if the original proceedings were by summons, capias, or detainer, or the quarto die post, if they were by original (s), make out a memorandum for a rule to appear upon plain paper (t), and enter it with the master. This is a four-day rule (u); and if at the expiration of it no appearance has been made or entered, then enter the proceedings upon a roll (x); take it to one of the masters, who will sign judgment; then file the scire facias and return with the masters, and sue out execution. Where Defendant has not been Or, if the defendant has not been summoned, call at the sheriff's office for the writ on or after the return day, and Summoned. get the writ and the sheriff's return of nihil (y). Make out a memorandum for a rule to appear on plain paper, and enter it with one of the masters. This is a four-day rule (2). If no appearance has been made or entered in eight days from the return day, prepare an affidavit (a) of the issuing of the scire facias and the sheriff's return thereto, and of the service of the notice on defendant, or of the due endeavours to serve it (b). At the expiration of the eight days after the return of the writ, or in a reasonable (c) time afterwards, move the court or apply to a judge on this affidavit for leave to sign judgment, and the court will grant the rule, or the judge will grant his order for the rule for judgment accordingly. No summons for the judge's order is requisite or usual. The rule is absolute in the first instance. Then enter the proceedings upon a roll (d). Take the judge's order or rule of court to one of the masters, who will sign judgment. Then file the scire facias and return with one of the masters, and sue out execution (e). If the defendant was not summoned, it seems that he may, notwithstanding judgment against him, still have advantage of any matter he might have pleaded to the scire facias, either on an auditâ querelâ (ƒ), or by motion to the court (g), or even by application to a judge at chambers in vacation. When a judge's order has been made, empowering the plaintiff to sign judgment on the scire facias, on an application for a rule to set aside the judgment, the court will not inquire into the sufficiency of the notice, or whether the bail or party against whom the scire facias is issued have or have (g) See the form, Chit. Forms, 463. (8) Sharp v. Clark, 13 East, 391. (z) See the form, Chit. Forms, 465. (2) See Wathen v. Beaumont, 11 East, (a) See form, Chit. Forms, 464. (d) See form, Chit. Forms, 465. (e) See the former mode of proceeding by two writs of scire facias, where you did not intend that the defendant should be summoned. (f) Lampton v. Collingwood, 1 Salk. 62; 1 L. Raym. 27, S. C. (g) Ludlow v. Lennard, 2 L. Raym. 1295: Anon., 1 Salk. 93: see Dodd v. Beckman, 1 L. Raym. 445: Wharton v. Richardson, 2 Str. 1075: Holt v. Frank, 1 M. & Sel. 199. SECT. 2. not been summoned: if the bail or party against whom the CHAP. III. scire facias is issued intend to avail themselves of any objection on such grounds, they should apply to set aside the judge's order (h). Such order, therefore, if acquiesced in, is conclusive to the sufficiency of the notice or summons (i). Upon a scire facias to have execution of a judgment against Against one two, if one be returned summoned, and nihil be returned as to the other, or that he is dead, and the one summoned make default, the plaintiff may have judgment against the party summoned for the entirety (k). of several Appearance.]Let the defendant's attorney give a written Appearance. notice to the attorney or agent of the plaintiff, that he appears for the defendant. This will be now sufficient in all cases in proceeding by scire facias, and no appearance is filed (1). Declaration.] As soon as the defendant has appeared, you Declaration. may declare against him. Engross your declaration on plain paper, indorse upon it the notice to plead, and deliver it to the defendant's attorney or agent (m). It should seem, that the 2 W. 4, c. 39, and the rules of M. T., 3 W. 4, which were framed to meet the enactments of that statute, apply to proceedings upon writs of scire facias when the scire facias is a continuation of a suit within those enactments and rules (n) but that they do not apply to proceedings upon other writs of scire facias, and consequently in the latter case the rules as to declaring and giving the notice to plead, which existed before that statute and rules, must be still regarded. In the latter case the declaration should be intitled of the term in which the writ of scire facias was returnable, or of the term of which defendant appeared; and the rules as to the time for pleading, and as to when the defendant will be entitled to an imparlance, are, perhaps, the same as those noticed ante, 802, in a replevin suit. Where there are two defendants, it seems that the plaintiff cannot declare in sci. fa. against either until both are before the court (o). Plea.] As soon as you have declared, rule the defendant to Plea. plead, and demand a plea, in the same manner as in ordinary cases (p), excepting that, in scire facias against bail, Sunday or a dies non is not reckoned as one of the four days given by the rule to plead, even when it is not the last day of the four (4). It should seem, as just observed, that the enactments of the 2 W.4, c. 39, s. 11, as to pleading between the 10th August and 24th October, and the rule of M. T., 3 W. 4, r. 12, framed to meet it (r), apply to proceedings in scire facias when the scire facias is a continuation of a suit within (h) Ladbrook v. Hewitt, 1 Dowl. 489. (7) R. H., 2 W. 4, r. 82. See forms of notice, Chit. Forms, 463. By that rule, "a notice in writing to the plaintiff, his attorney or agent, shall be a sufficient appearance by the bail or defendant on a seire facias." (m) See forms of declaration, Chit. Forms, 468, 469: and see 2 Saund. 72 t: PART I. BOOK II. that statute and rule, otherwise not; and they do not apply to proceedings in scire facias when it is an original proceeding (s). Engross your plea on plain paper, and deliver it to the plaintiff's attorney or agent (t). If the defendant have been summoned, and he neglect to appear and plead, he is for ever after barred from availing himself of any matter which he might have pleaded (u); although, if not summoned, we have seen that he would be relieved either by auditâ querela, or upon motion (x). Issue. Trial. Judgment. Costs. Issue.] The issue is in all cases made up by the attorney (y). If it be an issue of fact, indorse on it the notice of trial, as in ordinary cases. Trial.] Proceed to trial as in ordinary cases (z). The jury find the affirmative or negative of the issue; but they cannot give damages for the delay of execution (a). The plaintiff may be nonsuit, as in other cases (b). Judgment.] Get the Nisi Prius record from the associate, and indorse the postea upon it, if it be not already indorsed by the associate (c), and sign judgment and proceed to execution as in ordinary cases (d). 66 Costs.] Before the recent act, 3 & 4 W. 4, c. 42, the plaintiff was not entitled to costs on a scire facias, until after plea pleaded (e). But now by the 34th section of that act, in all writs of scire facias, the plaintiff obtaining judgment on an award of execution shall recover his costs of suit upon a judgment by default, as well as upon a judgment after plea pleaded or demurrer joined." By the 8 & 9 W. 3, c. 11, s. 3, if the plaintiff be nonsuit, or discontinue, or if a verdict pass against him, the defendant shall be entitled to costs. Also, by the R. H., 2 W. 4, r. 78, "a plaintiff shall not be allowed a rule to quash his own writ of scire facias, after a defendant has appeared, except on payment of costs" (f). The above statutes do not, it seems, extend to a scire facias to repeal letters patent (g). If costs be given where they should not, the judgment may be reversed as to that, and affirmed as to the residue (h). Where a sci. fa. was unnecessarily sued out, but the defendant's attorney on his behalf proposed terms of compromise which were for a time acted on, Patteson, J., held that the defendant could not afterwards object to the proceedings or to payment of the costs(i). (8) Ante, 815. (t) R. H., 4 W. 4, r. 1, ante, Vol. I. 170. See as to pleas in scire facias, 6 Bae. Abr., Sci. Fa. E.: 2 Saund 72 t, u, 12, n. (19); 6, 7 a; 9 a, b, 10, 11: and forms of pleas and replications, Chit. Forms, 472, 485. (u) Cooke v. Berry, 1 Wils. 98. (x) Ante, 834. See form of entry of judgment by default, Chit. Forms, 471; and of execution thereon, Id. 472. () R. T., 12 W. 3 a: R. H., 4 W. 4, r. 5, ante, Vol. I. 203. See as to the form, Chit. Forms, 473, 485. (z) See Chit. Forms, 473, 485. (a) Henriques v. Dutch East India Company, 2 L. Raym. 1532; 2 Str. 807, S. C.: Knor v. Costello, 3 Burr. 1791. The 3 & 4 W. 4, c. 42, ss. 28, 29, 30, do not apply to proceedings by scire facias. (b) O Mealy v. Wilson, 1 Camp. 484. (c) See as to the forms, Chit. Forms, 544: 9 Went. 552. (d) See Vol. 1, 330, &c. See as to the form of entry of judgment on roll, Chit. Forms, 473, &c. (e) Pocklington v. Peck, 1 Str. 638: Saund. 72 u: 8 & 9 W. 3, c. 11, s. 3. (f) See 1 B. & Ald. 486: Tidd, New Pract. 595. (g) R. v. Miles, 7 T. R. 367. (h) Bellew v. Aylmer, 1 Str. 188. CHAP. UI. SECT. 2. Execution.] The execution is the same, and nearly in the same form, as in ordinary cases (1). In the case of a scire facias to revive a judgment, the writ of execution must be Execution. founded on the judgment in the scire facias, even in cases where the scire facias may have been unnecessary (m). And the same, of course, in all other cases. As to execution against bail on a scire facias, see Vol. I. 639, (n); and as to the manner in which the execution must pursue the judg ment, see Vol I. 400, 401, 402. Upon a scire facias against bail, you may have one writ of execution against both, or separate writs against each; for the recognisance is joint and several(o). Quashing Scire Facias.] If there be any irregularity in the Quashing scire facias, the party who sued it out may apply to have it Scire Facias quashed, and the application will be granted on payment of costs of the proceedings on the sci. fa. only (p.) The Court of Queen's Bench will not, after appearance, make a rule for this purpose absolute in the first instance (7). Amendment of.] As to the amendment of a scire facias, see Amendment post, Book IV. Part I. Chap. 28. of. Facias. Second Scire Facias.] After reviving a judgment by scire Second Scire facias, if a year and a day pass before execution, the judgment must be again revived by scire facias, before the execution can be sued out (r). And the same in the cases of death, marriage, &c.; after scire facias sued out, the judgment must be again revived before execution (s). ( See the 8 & 9 W. 3, c. 11, s. 3. See form of fi. fa. or ca. sa. after scire facias to revive a judgment, Chit. Forms, 481; the like for executor or administrator, on judgment obtained by plaintiff deceased, Id. 487; of fi fa. against executor or administrator, on judgment obtained against defendant deceased, Id. 487; of execution for or against executor or administrator, where plaintiff or defendant died between interlocutory and final judgment, Id. 48. (m) Davis v. Norton, 1 Bing. 133. Forms, 466. (0) 1 Ro. Abr. 888: see Sainsbury v. Pringle, 10 B. & C. 751: ante, 831. (p) R. H., 2 W. 4, r. 78: Oliverson v. Latour, 7 Dowl. 605: see Pickman V. Robson, 1 R. & A. 486. (9) Ade v. Stubbs, 4 Dowl. 282; 1 H. & W. 520, S. C.: Oliverson v. Latour, 7 Dowl. 605. (r) 2 Sellon, 189. See the form, Chit. Forms, 461. (s) Hardisty v. Baring, 2 Salk. 598: 2 Sellon, 196. BOOK III. PART II. PROCEEDINGS IN ACTIONS BY AND AGAINST CHAPTER I. PROCEEDINGS AGAINST PEERS AND MEMBERS OF SECT. 1. Proceedings against, in ordinary Cases- 838, 839. BOOK III. PART II. Peers, &c., privileged from Arrest. The Process against. SECT. 1. Proceedings against, in ordinary Cases. PEERS, peeresses, and members of the House of Commons, we have seen, cannot be holden to bail(a); nor can they be taken in execution on a capias ad satisfaciendum (b). Čonsequently, if they be sued, they must not be held to bail; and judgment against them must be executed by fieri facias or elegit. An unprivileged person in custody in execution, who becomes a peer or member of parliament, is entitled to his discharge on motion (c). The process to enforce the appearance in a personal action of a person entitled to privilege of peerage or of parliament, is the same as in ordinary cases (which has been already fully noticed, ante, Vol. I. Book I. Part II. Chap. 1, 2). There seems no occasion to state in the process that the defendant is entitled to privilege of peerage or of parliament (d). It is to be re (a) Vol. I. p. 164. (c) Phillips v. Wellesley, 1 Dowl. 9: Exp. Burton, Id. 14. (d) It is no ground for plea in abate ment, that a defendant sued as a peer is also described as having privilege of par liament. (Cantwell v. Earl Stirling, 1 M. & Scott, 297; 8 Bing. 174, S. C.) |