ORIGINAL BETWEEN traverse the fraud: 5. Against executors and administrators, PARTIES TO to have execution of a judgment of assets quando acciderint; A JUDGMENT. To have exe cution of a time now allowed by statute, or upon the return of nulla bona, to a fieri facias issued on a judgment de bonis testatoris, to have execution de bonis propriis. The time within which the action in these cases must be brought, has already been noticed. 1. To have execution after two years.] Execution upon a judgment, before the revision of the statutes, might be had of course within a year and a day after the judgment was perfected; but after that time, it was generally necessary, in order to have execution, to revive the judgment by scire facias. The revised statutes have so far altered the former law, as to allow the party in whose favour the judgment was rendered, upon the filing of the record thereof, and within two years thereafter, to have execution to collect the amount of such judgment. This provision is, by its own terms, limited to judgments rendered in courts of record for any debt, damages, sum of money, or costs: but its effect appears to be extended in all cases, by other provisions to judgments in all real actions,52 and, semb. Statutory provision. perhaps, in the action of replevin:101 if so, the time for taking out execution does not expire in any action, and a scire facias is therefore not necessary, until the end of two years from filing the judgment record, instead of a year and a day, as formerly. At common law, scire facias would not lie in these cases5s in personal actions, but was given by the statute of Westminster second. This provision, which was early adopted in this state,55 has been preserved in the revised statutes, in the following language, which applies to all actions: "Whenever an execution shall not have been issued within the time 51 2 R. St. 363. s. 1. 52 2 R. St. 308. s. 34. 35. Ib. 328. s. 72. Ib. 342. s. 22. 23. 101 Ib. 530. s. 50. 51. 22. Rules of Supreme Ct. 70. 53 17 John. Rep. 107. n. a. 3 Salk. Rep. 321. pl. 7. 54 13 Ed. 1. Stat. 1. Ch. 45. 55 Sess. 10. Ch. 5. s. 34. 1 R. L. 89. BETWEEN ORIGINAL A JUDGMENT. allowed by law, after the filing of the record of any judgment or recovery, in any court of record within this state, the PARTIES TO plaintiff in such judgment may sue out a writ of scire facias, to be issued out of the same court, by which the sheriff shall be commanded to summon the party against whom it is issued, to appear before such court at a certain day, to show if he have any thing to say, why such plaintiff ought not to have execution of such judgment; and if, after being duly summoned, he do not come at the day, or do come and say nothing why execution ought not to be had, an execution shall thereupon issue, according to the force, form, and effect, of the said recovery."56 puted from filing record. The year and day were formerly computed from the day of Time comsigning judgment 102 and by calendar months, and not by terms;57 but, as we have seen, the time now allowed for taking out execution, is to be computed from the filing of the record. ment to be ved. Before the revision, the rule was, that after a judgment had when judg been once revived by scire facias, if the plaintiff did not take again reviout execution within a year, he must revive it again by scire facias, 58 Perhaps the provision which has been mentioned, allowing execution to be taken out within two years after judgment, may be deemed to affect this rule also. 59 the rule re quiring a sci. fac. The reason why the plaintiff is put to his scire facias after Reason of the two years is, that the law presumes that the plaintiff has executed his judgment or that he has released the execution, and therefore the defendant is allowed an opportunity to plead the release or show other cause why execution should not go." And so strict is the rule in this respect that a plaintiff can not Its strictness. sue out a ca. sa. after the expiration of the time allowed even for the purpose of proceeding against the bail, without having first revived the judgment against the principal by scire facias.6 562 R. St. 576. P. 3. Ch. 9. T. 2. s. 1. 102 Barnes' Notes, 197. 57 58 Tidd. Prac. 1158. 59 2 Inst. 470. Tidd. Prac. 1154. Str. Rep. 301. 6 Mod. Rep. 14. Mod. Rep. 304. Holt. Rep. 90. BETWEEN PARTIES TO cases dispenses with a scire facias. A JUDGMENT. dispensed with. ecution con record, But where this reason does not prevail, the law in many Where execution has been When sci. fa. taken out within the time allowed, 106 and returned unexecuted, and filed,61 and continued upon record, a new writ of execuIn case of ex- tion may be sued out at any time afterwards without a scire tinued on facias, and the continuances of the first writ may be entered after the second is sued out; and where nothing appears to the contrary, the court will presume it to have been done; and it seems even, to be unnecessary that the first writ shonld be actually returned.es It may be proper here to remark à differance between entering mesne process on the roll, and writs of execution: in the former case the writs must be all of the same species, in the latter not; thus if a fi. fa. be sued out within the year, it will warrant a ca. sa. sued out afterwards.64 or of a cesset executio, 66 So if the plaintiff have judgment with a cesset executio, or stay of execution, he may after the two years65 and within two years after the cesset executio is determined, take out execution without a scire facias; for the delay is by consent of parties and an indulgence to the defendant. So where the execution or of injunc- has been delayed beyond the two years at the request of the defendant,67 or where he has occasioned the delay by injunctions out of chancery, obtaining time for payment, &c.68 tions, But 106 All the cases cited under this head were under the former rule, requiring executions to be issued within a year; but they are cited as applying equally to the present rule of two years; and where two years are spoken of hereafter, it must be understood that the case 62 Tidd. Prac. 1154. 638 John. Rep. 106. 9 John. Rep. 391. 64 1 Str. Rep. 100. 2 Saund. Rep. 68. d. 65 6 Mod. 288. 1 Salk. 322. S. C. Sed Qu. 66 2 Cromp. Prac. 102. Tidd. actually arose under the one year Prac. 1155. Or one year? Quere. rule. 67 19 John. Rep. 173. 68 2 Burr. Rep. 660. 6 Moore's Rep. 517. the courts formerly refused to regard a delay occasioned by in- BETWEEN junction.69 So if the defendant bring a writ of error and thereby hinder the plaintiff from taking out execution within the two years and the judgment be affirmed, the plaintiff in error non suited, or the writ of error abated or discontinued, the defendant in error may proceed to execution after the two years without a scire facias.70 It has even been holden in one case that if a writ of error be brought after the two years are elapsed, and thereupon the former judgment is affirmed, such affirmance will revive the former judgment and enable the party to take out execution, without a scire facias. But from this case it seems, that if the platntiff in error be non suited, or the writ of error discontinued, there can be no execution of the former judgment, without a scire facias. ORIGINAL PARTIES TO A JUDGMENT. or of writ of error. cution of fu 2. To have execution of future effects.] With regard To have exeto future effects, it is an established rule in England, ture effects. that where a judgment against a bankrupt72 or an insolvent73 is general, but the creditor is entitled to execution for the future effects of the debtor, a special execution cannot be taken out without first suing out a scire facias. How far this practice is to be applied to executions for future effects under our insolvent laws, remains to be settled.74 cution for 3. To have execution in cases of covenants, &c.] At To have exccommon law, after a recovery upon covenants perpetual, or breaches of upon bonds conditioned for the payment of annuities, &c. after judg the plaintiff was sometimes allowed to take out execution 6 Mod. Rep. 288. 1 Salk. Rep. 322. 1 Str. Rep. 301. 702 Inst. 471. 5 Co. Rep. 88. Cro. Eliz. 416. Carth. Rep. 237. 6 Mod. Rep. 288. 1 Salk. Rep. 322. 3 Salk. Rep. 321. 1 Rol. Rep. 104. Cro. Jac. 364. S. C. 721 T. R. 80. 73 Ib. 79. Tidd. 1162. 1164. Covenants ment. ORIGINAL BETWEEN under his judgment for breaches occurring or arrears falling PARTIES TO due after judgment, and sometimes he was obliged to resort A JUDGMENT. statute. to a scire facias.75 Statutory provisions on this subject, how ever, have superseded in practice the uncertain and obscure rules of the common law.76 The revised statutes direct that "When an action shall be prosecuted in any court of law, upon any bond for the breach of any condition other than for the payment of money, or Provisions of shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff in his declaration shall assign the specific breaches for which the action is brought."" It is further provided, that after the damages shall have been assessed, judgment shall be rendered for the penalty of the bond, or for the penal sum forfeited, as in other actions of debt, with costs, and that the plaintiff' have execution to collect the damages asssessed. The statute then provides that "the judgment rendered in such action shall remain as a security for any damages that may be thereafter sustained by the further breach of any condition of such bond, or by the non-performance of any other covenant or written agreement, by the defendant, the performance of which was secured by such penal sum;" and that, “Whenever such further breaches shall occur, the plaintiff or his personal representatives may have a scire facias upon such judgment, suggesting such breaches, against the defendant and all parties bound thereby, and commanding that they be summoned to show cause why execution should not be had upon such judgment, for the amount of the damages sustained by such further breaches." Upon this scire facias the 75 Cro. Eliz. 3. 1 Roll. Abr. 900. 229. 2 W. Bl. R. 844. Co. Lit. 145. 2 Co. Rep. 37. 6 Co. Rep. 45. Jenk. Rep. 51. 2. 1 Salk. Rep. 258. 2 Salk. Rep. 600. Cro. Car. 436. 1 H. Bl. Rep. 297. W. Bl. Rep. 1111. 76 1 Rev. Laws, 518. s. 7. 77 2 R. St. 378. P. 3. Ch. 6. T. 6. s. 5. |