EXCEPTIONS TO THE GENERAL RULES REQUIRING A WRIT OF SCIRE FACIAS.

CH. VII.] Not necessary where Judg. suspended by Act of Deft.

Scire Facias not necessary for the Crown in the Case of the Death of its Debtor, to have Execution against his Heir, Executor, or Administrator, p. 94.

Scire Facias not necessary for the Crown on Debts of Record, where the Execution is a First

Proceeding, without any pre-
vious Judicial Inquiry, on an
Affidavit that the Debt is in
danger of being lost, p. 95.
Nor is it necessary before extend-
ing the Debt of the King's Debtor,
on an Affidavit of Danger, p.

97.

Is the first and introductory chapter a brief outline has been given of those cases which form exceptions to the general rules, that execution cannot issue upon a judgment more than a year and a day old, nor where the execution is to be levied by or against a new party to the suit, unless it be revived by scire facias (a). In the present chapter we will proceed to examine those exceptions in their order more in detail.

A scire facias is not necessary to revive a judgment more than a year and a day old, where the execution of the judgment has been suspended; either, 1st, by the agreement of the parties, or, 2ndly, by operation of the law set on foot by the defendant-to reverse the judgment by writ of error, or to stay the execution by an injunction out of Chancery. The principle on which these exceptions are founded is the same in each case, and is well defined in the case of Powis v. Powis (b), where the Court observed, "that the reviving a judgment by scire facias was intended to prevent a surprise on the defendant" (c).

not neces

judgment

67

As to the first exception, where the execution of the judgment Scire facias has been stayed by the agreement of the parties beyond a year sary where and a day, there can be no "surprise" on the defendant, if that period execution should be issued, for it was by his agreement that till then it was delayed (d).

after has been own by the

suspended

agreement of the parties, till a

In such a case there needs no scire facias till a year and a day year and a

after the time agreed (e).

But if the plaintiff do not take out execution within a year after the cesset executio is determined, he must sue out a scire facias (ƒ).

In Morris v. Jones (g), in which case a warrant of attorney con

(a) See ch. i. p. 8.

(b) 6 B. Moore, 517; and see note to Hiscocks v. Kemp, 3 Ad. & E. 683.

(e) And see Michel v. Cue et Uxor, 2 Burr. 660.

(d) Bac. Abr. tit. Execution, H

409; and see 2 Tidd's Prac. 8th ed.
1155.

(e) Com. Dig. tit. Execution, I, 4.
(ƒ) 2 Tidd's Prac. 8th ed. 1155; 2
Cromp. 102.

(g) 3 Dowl. & Ry. 605; and 2 B. & C. 243.

day after

the time agreed.

68

By Agreement of the Parties.

[BK. I. tained a stipulation that execution might issue upon the judgment after a year and a day without revivor by scire facias, this question was mooted, and it was there held that the parties might lawfully make such a bargain, and that the execution was good, Lord Tenterden (h) saying, "If the defendant thought proper to enter into a bargain that execution should issue upon the judgment without a scire facias to revive it, he cannot afterwards be permitted to avoid the consequences by setting up the illegality of the proceeding" (i).

In the case of Hiscocks and another v. Kemp (k), which was argued in the Queen's Bench on a rule for setting aside the execution issued against the defendant, upon a judgment on a warrant of attorney, more than a year and a day after judgment, without reviving it by scire facias, the Court entered very fully into the question. In the defeasance of the warrant of attorney it was agreed that the plaintiffs "should be at liberty to enter up judgment thereon at their pleasure, and in default of payment to issue execution," &c. Lord Denman, in delivering the judgment of the Court, said, "For the plaintiffs it was contended that whenever the execution was suspended beyond the year and day after signing the judgment by the agreement of the parties, the delay so occasioned would not compel the plaintiff to revive the judgment, and that the facts of this case brought it within the exception to the general rule. The defendant denied that any such agreement appeared in the case; and further that if it did it could not waive a necessity imposed expressly by statute; the authorities on which such a practice was founded were asserted not to warrant it when duly examined, and in particular it was contended that the case of Withers v. Harris (1) was a decision directly in point, and the other way. We have looked into the facts and the authorities, and are of opinion that on neither ground is there any reason for disturbing the execution.

"With respect to the practice, it has long been clearly understood in the profession, that if the plaintiff has judgment with a cesset executio for a year, he may after the year take out his execution without a scire facias, because the delay is by consent of parties and in favour of the defendant.' This is the language of Mr. Serjeant Williams, in the notes on Underhill v. Devereux (m), and we should be very unwilling to disturb, except on the clearest grounds, a practice now well recognised, on which all persons

(h) As reported in 3 Dowl. & Ry.
(i) And see Sherran v. Marshall and
another, 1 D. & L. 689.

(k) 3 Ad. & E. 676.

(7) 7 Mod. 64.

(m) 2 Wms. Saund. 72 e, n. (4).

have acted for a long series of years, and which is neither unreasonable nor inconvenient in itself."

After going through the authorities cited in argument on the subject, the Court, at the conclusion of the judgment, said, “We cite these as specimens of what may be found in the books on this subject; but we pronounce our judgment, that this execution ought not to be disturbed, on the principle that it has issued in accordance with the practice of the Courts, long considered as established, not inequitable or inconvenient in itself, nor at variance with any legal principle, statute, or decided authority."

69

agreement

Since this case, which is now the leading case on this point, and Even if the which Mr. Justice Coleridge, in Morgan v. Burgess (n), said was be by parol. "a well considered judgment," a point was raised in the latter case that though Hiscocks v. Kemp decided that under such an agreement in a warrant of attorney it was not necessary to revive a judgment by scire facias, yet that such an agreement, if a parol agreement only, would not waive the benefit of the statute. But the Court held, that if the defendant has even by parol agreed to waive the necessity of a scire facias, notwithstanding the Statute of Westminster the Second (13 Edw. I. c. 45, s. 1), a writ of execution may be issued on the judgment, after the year and a day has expired without suing out a scire facias (o).

So, where a judge's order was obtained by consent to save expense, whereby it was ordered that execution should issue upon a judgment more than a year old, without a scire facias, the Court of Exchequer refused to set the execution aside, and held it to be valid even as against the assignees of the judgment debtor, against whom the execution issued (p). So, after a warrant of attorney has been executed, and judgment has been signed thereon, an agreement between the parties to waive the necessity of a scire facias to revive the judgment is a valid agreement (q).

(a) 1 Dowl. N. S. 852.

(0) And see a similar principle laid down in the case of Bland v. Durley, 3 T. R. 530, where the plaintiff delayed signing judgment, on the defendant promising to pay him, till four terms had expired at the defendant's request, and it was held that a term's notice, that the plaintiff intended to proceed with his action after lying by four terms, was not in this case necessary, as the rule was established for the purpose of preventing any surprise on the defend

ant, and it did not apply to a case
where the defendant had been using
false pretences to prevent the plaintiff
obtaining judgment in the regular time;
see 2 Chitty's Arch. 8th ed. 846, as
to the practice.

(p) Harmer v. Johnson, 14 M. &
W. 336; S. C., 3 D. & L. 38; and see
Cooper v. Norton and others, 16 L. J.,
N. S., Q. B. 364.

(q) Cooper and others v. Norton and
others, 16 L. J., N. S., Q. B. 364.

70

Not neces

sary where

brings a

to revive

Deft. brings Writ of Error, or stays Execu. by Injunc. [Вк. I.

Secondly, a scire facias is not necessary to revive a judgment more than a year and a day old, where the execution has been suspended by the operation of the law, set on foot by the defendant.

If the defendant brings a writ of error, and thereby hinders the defendant plaintiff from taking his execution within the year, and the plainwrit of error tiff in error is nonsuited, or the writ of error abated or discontinued, or the judgment affirmed, the defendant in error may proscire facias ceed to execution after the year without a scire facias; because has expired, the writ of error was a supersedeas to the execution, and the

ment by

after a year

nor until

after the

year from

the deter

mination of

defendant in error must wait until it be determined. Besides, while the cause is depending on the writ of error, it is still sub the writ of judice whether the plaintiff below shall recover or not, and the year for the execution ought to be accounted from the final judgment given (r).

error.

And if the judgment

So, if the year has expired before the writ of error is sued out, has expired and the judgment is affirmed, or the plaintiff in error is nonsuited, or the writ of error is discontinued, the plaintiff may sue out execution without a scire facias; for by the writ of error the defendant has renewed the record (s), and revived the judgment (t).

by lapse of time the writ of error revives it.

Not necessary where defendant obtains a stay of execution by injunction out of

For the same reason the same rule prevails where the defendant after judgment has obtained a stay of execution by an injunction out of Chancery (u). This was settled by the case of Michel v. Cue et Uxor (x), in which, on cause being shown against setting Chancery. aside an execution for irregularity for having issued execution above a year and a day after judgment without any scire facias to revive it, it appeared that the whole delay had arisen from the defendant's having stayed the execution by injunctions out of Chancery, and the Court were unanimous that the rule requiring a scire facias to revive a judgment of above a year old before suing out execution upon it, which was intended to prevent a surprise upon the defendant, ought not to be taken advantage of by a

(r) Bac. Abr. tit. Execution, H, 408; 2 V. Wms. Saund. 72d, note to Underhill v. Devereux; Goodwin v. Grudge, Cro. Eliz. 416; and see Sir Henry Bellasis v. Hanford, Cro. Jac. 364; 1 Rol. Abr. 899, n., pl. 9; Howard v. Pitt, Carth.237; Booth v. Booth, 6 Mod. 288; Withers v. Harris, 7 Mod. 68; Dennis v. Drake, Lane, 20; 2 Inst. 471; Yelv. 7; Bac. Abr. tit. Scire Facias, n. (c) 1; Com. Dig. tit. Execution, I, 4. (8) Sir Henry Bellasis v. Hanford,

Cro. Jac. 364; S. C., 1 Rol. Rep. 104.

(t) 2 V. Wms. Saund. 72d, n.; 1 Rol. Abr. 899, n. pl. 3, 4, 5; Lane, 20; Howard v. Pitt, 1 Show. 402; Fish v. Wiseman, Palm. 449; S. C. Lut. 193. (u) Hiscocks v. Kemp, 3 Ad. & E. 682, per Lord Denman.

(x) 2 Burr. 660; S. C., 2 Bl. Rep. 784; Watkins v. Haydon, 2 Bl. Rep. 762; Powis v. Powis, 6 B. Moore, 517; Com. Dig. tit. Pleader, 3, L, 4; 2 Tidd's Prac. 8th ed. 1156.