judgment for the plaintiff is that he have execution to collect the damages assessed, and the judgment remains as security for further breaches.78 This species of scire facias is expressly given by statute in cases of further breaches of bastardy bonds.79 91 BETWEEN ORIGINAL PARTIES TO A JUDGMENT. to traverse any By a tenant fraud in the real not 4. To traverse fraud.] Our statutes provide that person entitled to the reversion or remainder of any estate may bring error upon a judgment, to which he was a party, recovered against the tenant,80 and that if the judgment be reversed, the tenant shall be restored to the possession and have the issues in the meantime, but that if the plaintiff in error shall establish that the recovery was obtained by fraud, he shall be entitled to the possession and issues; but that "such tenant may have a writ of scire facias upon the same judgment, so reversed or given on any writ of error, if he desire, and may therein traverse the fraud, and not otherwise."82 recovery of a judgment against him. ecutors, &c. sets. 5. To have execution against executors, &c.] In actions Against exagainst executors and administrators, if they, by default, or for future asplea, admit assets, the judgment will be for the debt and damages only, or for the costs also, as the case may be; and an execution conformable to the judgment may be issued at once. But, where they plead, plene administravit, either general or special, and nulla bona, or, nulla bona ultra, and the plaintiff confess the plea, or on issue joined it be found for the defendant, then the judgment is for assets, quando ac 2 R. St. 378. P. 3. Ch. 6. T. 6. s. 6-15. 791 R. St. 652. s. 49. 82 2 R. St. 340. P. 3. Ch. 5. T. 7. s. 7. 83 2 R. St. 90. s. 41. Ib. 618. s. ** 2 R. St. 592. P. 3. Ch. 9. T. 37. 4 Cow. Rep. 447. Cro. Car. 3. s. 2. 61 518. 18 John. Rep. 503. 4 Term 2 R. St. 339. P. 3. Ch. 5. T. Rep. 648. 7 Term Rep. 359. But 7. s. 3. see 2 R. St. 88. s. 32. as to when it may be issued. BETWEEN ciderint. ORIGINAL A JUDGMENT. That is, the plaintiff has judgment immediately, PARTIES TO with a right to execution, whenever assets come to the executors hands. In order to obtain such execution, a scire facias against the executors is necessary, praying execution of such assets as have come to the defendants hands, since the former judgment.85 Scire fieri inquiry; and 87 Upon a judgment de bonis testatoris, a writ is sometimes when it lies. resorted to, in the nature of a scire facias, but differing from it in some respects. This is called a scire fieri inquiry, and issues under the following circumstances. A fieri facias de bonis testatoris, having been issued upon the judgment, and not having been executed, is returned by the sheriff, either nulla bona generally, or nulla bona, and a devastavit by the defendant.86 Upon the latter return, a capias ad satisfaciendum, or a fieri facias de bonis propriis issues immediately against the executor. But on the former return, a writ is issued, called a scire fieri inquiry, reciting the judgment, fieri facias, and return of nulla bona, and after suggesting a devastavit, commanding the sheriff to cause the debt or damages and costs to be made of the goods of the testator, or intestate, if, &c.; and if not, then if it shall appear by inquisition that the defendant hath wasted the goods of the deceased, to give notice to the defendant to appear in court at the return of the writ, to show cause why the plaintiff ought not to have execution de bonis propriis. To this, the defendant may appear, and plead plene administravit, and that he has not wasted, &c.88 The notice of executing the fieri facias inquiry, is the same as of executing a common writ of inquiry.10 The modes of proceeding, however, in these cases may be materially affected, and possibly be considered as superseded by the provisions of the revised statutes.101 The scire fieri inquiry is seldom used, as the plaintiff' is not allowed any costs, unless the defendant appear and plead, or there be a joinder in demurrer: and therefore, it is more usual, on the return of nulla bona, to the fieri facias, to bring an action of debt on the judgment, suggesting a devastavit.89 II. OF SCIRE FACIAS AGAINST BAIL. BETWEEN ORIGINAL PARTIES TO A JUDGMENT. veral. Whenever bail become liable upon their recognizance, the Against bail. plaintiff in the action, may proceed upon the recognizance against them, by action of debt, or by scire facias.90 In debt, the plaintiff may bring one action against all the persons bound in the recognizance, or several actions against each of them. Joint or seBut one scire facias seems in all cases to be sufficient; and the recognizance being joint and several, it is holden that the execution may be several, though the scire facias was joint, for the judgment is not to recover, but to have execution according to the recognizance.91 are liable. Bail to the action become liable upon the return of non est When bail inventus, to the capias ad satisfaciendum against the principal; but bail in error, cannot excuse themselves by a render of their principal, and therefore, it is not necessary to issue a capias ad satisfaciendum in order to proceed against them,92 but debt or scire facias, lies whenever the writ of error is nonprossed, discontinued, or the judgment affirmed. able. Debt is to be preferred to scire facias, against bail to the Debt preferaction, as in the former, where the proceedings against them are stayed on a render of their principal, it is on condition that the costs of that as well as the original action shall be 101 2 R. St. 116. s. 19-22. Ib. 88. 8.32. 39 Tidd. Prac. 1165. " 4 John. Rep. 407. Tidd. Prac. 91 Tidd. Prac. 1148. 1 Lev. Rep. 225. 1 Sid. Rep. 339. 92 Tidd. Prac. 1150. AGAINST BAIL. paid; but in the latter, the costs of the scire facias are not allowed, unless the bail appear and plead or join in demurrer;93 and it is also preferable, because, in debt on recognizance, the plaintiff may recover damages for the detention of his debt which he can not do in scire facias. Formerly, when the defendant was out of the state, so that process could not be served personally, debt could not be maintained, although scire facias might be, and was therefore, in such cases, Scire facias a desirable remedy.95 But, now it is provided, that it shall be necessary, in all cases in which proceedings shall be had against bail, by scire facias, to serve the writ personally upon the defendant, and to have it duly returned, that it has been so served; and that no further proceedings shall be had, until it is so returned.96 must be per sonally served on bail. In what court to be brought. We shall see hereafter, that the action should be brought in the same court where the original suit was commenced, except that where the original suit was brought in a county court and the bail have removed out of its jurisdiction, it may be brought in the supreme court; and, against bail in error, it should be brought in the same court where the recognizance was taken, unless it was taken in a court of common pleas, and then it may be brought either in that court or in the supreme court to which the record is supposed to be removed.97 III. OF SCIRE FACIAS UPON A JUDGMENT ON THE INTRODUCTION OF NEW PARTIES. On a judgment on the of new par It is an established rule, that where a new person98 is to be introduction benefitted or charged by the execution of a judgment, there ties. ought to be a scire facias to make him party to the judgment; Rule where but that where the execution is not beneficial or chargeable to who was not party to the judgment, a scire facias is new parties are introduced to a judgment. a person 93 Tidd. Prac. 1149. 1150. 94 Burr. Rep. 1791. Tidd. Prac. 1149. 1150. 95 Tidd. Prac. 1150. 96 2 R. St. 383. s. 35. Rep. 98. 3 John. Rep. 443. Tidd. 98 1 Ld. Raym. Rep. 245. 1 Salk. Rep. 319. 2 Inst. 471. 2 Ld. Raym. 768. Tidd. Prac. 1165. 273 Mod. Rep. 251. 1 Wils. 17 John. Rep. 271. unnecessary. The events by which new persons become thus interested in the judgment, are, marriage, death, and bankruptcy. The time within which the action must be brought in these cases has been already noticed. On this subject the revised statutes have the following provision: "Writs of scire facias shall also be issued in the cases not otherwise provided by law, to revive a judgment against the personal representatives of any deceased defendant; or in favour of the personal representatives of any deceased plaintiff; or where the situation of either party is changed by marriage; or to continue a suit by or against the representatives of either party who shall have died in the progress thereof."99 As we have no bankrupt law, a change of parties can only occur in the events of marriage or death. N A JUDGINTRODUC MENT ON THE TION OF NEW General sta sion. in case of provisions necessity. I. Of marriage.] It is probable from the provision Scire facias above cited from the revised statutes, that it was intended to marriage. preserve the remedy by scire facias on a change of parties by marriage as it existed before the revision. But the fol- Statutory lowing provisions have been introduced for the purpose of with its doing away the necessity of proceeding by scire facias in cases of marriage, and will no doubt occasion its disuse. "If a female plaintiff in any action marry after verdict rendered, or after interlocutory judgment, and before final judgment, a suggestion of the fact of such marriage may be entered on the record, and final judgment shall be rendered in her name and that of her husband." "If a female plaintiff marry after final judgment, but before execution issued, a like suggestion of the fact shall be entered on the record, and an award of execution shall be made in her name and that of her husband."100 ses formerly In the following cases where it was formerly necessary, it In what camay now perhaps be considered optional, to proceed by scire necessary. facias. For a husband and wife, in order to execute a judg 99 2 R. St. 576. P. 3. Ch. 9. T. 2. s.2. 100 2 R. St. 387. P. 3. Ch. 7. T. 1. s. 8. 9. |