A TREATISE

ON THE

WRIT OF SCIRE FACIAS.

BOOK THE FIRST.

CHAPTER I.

INTRODUCTION.-ON THE NATURE AND APPLICABILITY
OF THE WRIT OF SCIRE FACIAS.

As introductory to the consideration of the nature and applicability of the writ of scire facias it is proposed, first, to examine what it is; and, secondly, to take a cursory view of those instances in which it is required.

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What it is.
Must be

founded on
a record.

Why so called.

Lay at

Nature of the Writ of Scire Facias.

The succeeding chapters will be devoted to a more close examination of its applicability to particular cases.

And first, as to what the writ of scire facias is.

A scire facias is a writ necessarily founded on some matter of record (a), and must issue out of the court where that record is (). In many cases, however, it is granted partly upon a record and partly upon such a suggestion, without which no proceeding could be had upon the record (c).

It is called a scire facias from these essential words in the writ, “quod scire facias præfat. T. (the defendant) quod sit coram, &c., ostensurus si quid pro se habeat aut dicere sciat quare," &c., and is a warning given to the defendant (scire facias) to appear in court and plead in bar of the execution, or show any cause if he can by release or otherwise, why execution should not issue on the judgment or record against him (d).

In real actions (e), and on a writ of annuity (f), the writ of law in real scire facias lay at common law if the plaintiff did not take out

common

actions.

Was given

by the stat.

personal

execution within a year and a day.

In personal actions this writ was given by the Statute of West. 2, in Westminster the Second (g), before which act, if the plaintiff did not have execution within a year and a day, he was by the common law put to a new action upon his judgment (h).

actions.

The reason why it lay

at common

law in real

and not in personal actions.

The reason why the writ lay at common law in real and not in personal actions, was because, "at common law in real actions, where land was recovered, the demandant, after the year, might take out a scire facias to revive his judgment, because the judgment being particular in the real action, quoad the lands with a certain description, the law required that the execution of that judgment should be entered upon the roll, that it might be seen whether execution was delivered of

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(a) Bac. Abr. tit. Scire Facias, A.
'Regularly upon the statute (West.
2), a scire facias cannot be granted
but upon a record;" 2 Inst. 470.

(b) Tidd's Prac. 8th ed. 1139;
Bac. Abr. tif. Scire Facias, D; 2 V.
Wms. Saund. 72 a, note to Under-
hill v. Devereux; Com. Dig. tit. Pa-
tent, F, 7; R. v. Sir O. Butler, 3
Lev. 223; Com. Dig. tit. Pleader, 3
L, 3; 2 V. Wms. Saund. 72 f, n.
(c) 2 Inst. 470-679.

(d) Co. Litt. 291. a.; 2 V. Wms. Saund. 6, n. 1; 2 Tidd's Prac. 8th ed. 1154.

(e) Per Holt, C. J., in Withers v. Harris, 7 Mod. 68; Com. Dig. tit. Pleader, 3 L, 1.

(f) Per Powell, J., 7 Mod. 69. (g) 13 Edw. I. st. 1, c. 45. (h) 2 Inst. 469; Com. Dig. tit. Execution, I, 4; Co. Litt. 290. b. ; Com. Dig. tit. Pleader, 3 L, 1.

Why required after a Year and a Day.

the same thing of which judgment was given; and therefore, if there was no execution appearing on the roll, a scire facias issued to show cause why execution should not be awarded.

why it is

3

personal ac

the expira

"But if the plaintiff, after he had obtained judgment in any The reason personal action, had lain quiet, and had taken no process of required in execution within the year, he was put to a new original upon tions after his judgment, and no scire facias was issuable by law on the tion of a judgment, because there was not a judgment for any particular year. thing in the personal action with which the execution could be compared therefore, after a reasonable time, which was a year and a day (i), it was presumed to be executed, and therefore the law allowed him no scire facias to show cause why there should not be execution. But, if the party had slipped his time, he was put to his action on the judgment, and the defendant was obliged to show how that debt of which the judgment was an evidence was discharged "(j).

In the case of Withers v. Harris (k) the reason given is, "for that in a real action one could have no other advantage of his judgment; but, in a personal action, debt would lie on the judgment" (1). "And the reason of a scire facias in a real action at the common law was for that the party might have a release or other matter to plead; and it was thought hard, in such case, to suffer execution to be without any opportunity of pleading, because thereby the freehold is not only divested, but the party put to an action of a higher nature, which sometimes the nature of the case did not allow of” (m).

It was however, in personal actions, at an early period, found inconvenient, and often a means of oppression, that the plaintiff should on the one hand be compelled, after the lapse of a year and a day, to commence a new action upon his judgment;

(i) "A year and a day is the time limited by law to the plaintiff for many purposes for prosecuting his right;" Withers v. Harris, 7 Mod. 65.

(j) Bac. Abr. tit. Execution, H, 407, 408; 2 Tidd's Prac. 8th ed. 1152-1154; 2 V. Wms. Saund. 72 d, n. ; 3 Bla. Com. 421; Lush's Pr. 500; 2 Inst. 470; Sir William Walker's case, 2 Leon. 77; 3 ib. 259; 4 ib. 44.

(*) 7 Mo. 65, 66; 2 V. Wms.

Saund. 6, n.

(1) "In all cases where a man's writ was determined by a judgment, though he had passed a year and a day before execution, yet he had some benefit of his judgment; and therefore, if it were in debt, he had his action upon the judgment, being matter of higher nature than his first cause of action; if the action were real he had a scire facias;" Withers v. Harris, 7 Mod. 66.

(m) Withers v. Harris, ubi supra.

4

Given in Personal Actions by Statute of Westminster 2.

whilst, on the other hand, the defendant might be subjected to the accumulated costs of a series of actions (n).

To remedy these evils, and to make the forms of proceeding more uniform in real and personal actions, the Statute of Westminster was passed (0), which “applies a proper remedy by giving the scire facias upon the judgment after a year and a day" (p); and in real actions the former tedious process of the common law upon this writ, as it then lay, was abridged (q).

In the case of Withers v. Harris (r), Lord Chief Justice Holt is reported to have said, relative to this statute giving the writ of scire facias in personal actions, "that he was not satisfied with Coke's inference from it, that no scire facias did lie upon a judgment in a personal action" (s); but Powell, J., in the

(n) "Actions of debt upon judg ments in personal suits have been pretty much discountenanced in the Courts, as being generally vexatious and oppressive, by harassing the defendant with the costs of two actions instead of one;" 3 Bla. Com. p 160.

(2) The following is the section of
the Stat. of West. 2 (13 Edw. I. st. 1,
c. 45), which gives this writ in per-

sonal actions: -"Because that of
such things as be recorded before
the Chancellor and the justices of the
King that have record, and be en-
rolled in their rolls, process of plea
ought not to be made by summons,
attachments, essoin, view of land, and
other solemnities of the Court, as
hath been used to be done of bar-
gains and covenants made out of the
Court; from henceforth it is to be
observed that those things which are
found enrolled, before them that have
record, or contained in fines, whe-
ther they be contracts, covenants,
obligations, services, or customs
knowledged, or other things whatso-
ever enrolled, wherein the King's
Court, without offence of the law and
custom, may execute their authority,
from henceforth they shall have such
vigour, that hereafter it shall not

need to plead for them. But when
the plaintiff cometh to the King's
Court, if the recognizance or fine le-
vied be fresh, that is to say, levied
within the year, he shall forthwith
have a writ of execution of the same
recognizance made. And if the re-
cognizance were made, or the fine
levied, of a further time, passed, the
sheriff shall be commanded that he
give knowledge (quod scire faciat)
to the party of whom it is complain-
ed, that he be afore the justices at a
certain day, to show if he have any-
thing to say why such matters en-
rolled or contained in the fine ought
not to have execution. And if he do
not come at the day, or peradventure
do come and can say nothing why
execution ought not to be done, the
sheriff shall be commanded to cause
the thing enrolled or contained in
the fine to be executed. In like
manner an ordinary shall be com-
manded in his case, observing never-
theless, as before is said of a mean
which by recognizance or judgment
is bound to acquit;" 2 Inst. 469.
(p) Dighton v. Granvil, 4 Mod.

An Addition to the Common-law Remedy.

same case, is represented as answering, "As to Coke's opinion upon the Statute of Westminster the Second, that before the statute, the writ of scire facias did not lie in personal actions, the law had been so taken ever since." To which Lord Holt replied, that "he submitted to Coke's opinion, though he saw no reason for it."

to the com

remedy by

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The remedy thus wisely given, to have execution on old judg- An addition ments in personal actions, was however in addition to, and not mon-law in substitution for, the former remedy by an original action; action on the judgand the plaintiff may yet, if he choose, waive the benefit of ment. the statute, giving the writ of scire facias, and resort to his original action of debt on the judgment to which he is entitled by the common law (†).

To prevent this right of resorting to an action of debt on a prior judgment being used oppressively by plaintiffs in accumulating costs by successive actions, the stat. 43 Geo. III. c. 46, s. 4, was passed, which enacts that, "In all actions upon any judgment recovered which shall be recovered in any Court in England or Ireland, the plaintiff or plaintiffs, in such action on the judgment, shall not recover or be entitled to any costs of suit, unless the Court in which such action on the judgment shall be brought, or some judge of the same Court, shall otherwise order (u).

fine levied, the demandant or conusee
of the fine after the year might have
had a scire facias for the land, &c.,
because he could not have any new
original, either upon the judgment or
fine, as he might in other cases. Now
this Act giveth a scire facias in per-
sonal actions in lieu of a new ori-
ginal."

of opinion hath been, whether there the year after the judgment given or
was a scire facias at the common
law before this Act, and the doubt
grew for want of distinguishing be-
tween personal actions and real ac-
tions; for true it is, that in personal
actions, if the plaintiff after judgment
given, or recognizance acknowledged,
sued out no process of execution
within the year, he could have no
scire facias; but the plaintiff or
conusee was driven to his original
(which is to be intended upon the
judgment or recognizance), as in ac-
tions of debt, writs of annuity, or
other personal actions, wherein debt
or damages were recovered, or upon
recognizances.

"But in real actions, or upon a fine levied, though the demandant or conusee sued out no execution within

(t) "This statute is in the affirmative, and therefore it restraineth not the common law; but the party may waive the benefit of the scire facias given by this Act (13 Edw. I. st. 1, c. 45), and take his original action of debt by the common law;" 2 Inst. 472.

(u) See 2 Tidd's Prac. 8th ed. 1005. This act, however, only extends to "judgments recovered by