6 First general rule. Where a New Party to the Suit. In the case of Hiscocks v. Kemp (v), Lord Denman explains the reason why a scire facias is required after the expiration of a year in personal actions very clearly. He is there reported to say, "At the common law, a presumption arose from a plaintiff's delay beyond a year, that his judgment either had been satisfied, or from some supervening cause ought not to be allowed to have its effect. After such delay, therefore, he was not allowed to issue execution as a matter of course, but was driven to bring a new action on the judgment. The scire facias, which had been in use at the common law for the purpose of executing judgment in real actions after a year and a day's delay, was therefore adopted by the statute as a less expensive and dilatory course for the plaintiff, and as equally affording protection to the defendant, if he had any reason to show why the execution should not issue." The rule therefore now is, since the Statute of Westminster, To revive a in personal as well as in real actions, that execution cannot issue judgment after a year upon a judgment above a year old, without a revival by scire and a day. facias (w), and the writ is then a judicial writ to continue the former suit, and to have execution of the judgment (x). Second general rule. judgment It is also a rule that whenever it is sought to fix a party on To revive a a judgment given against another, it must be done by scire where a new facias (y); the rule being that where a new person, who was party to the not a party to a judgment or recognizance, derives a benefit by, or becomes chargeable to, the execution, there must be a scire facias to make him a party to the judgment or recognizance (2). suit. With regard to one class of cases however, namely, to public companies, it was formerly held that, where an Act of Parlia plaintiffs, and not to a judgment of (v) 3 Ad. & E. 679; S. C., 5 N. (w) Anon. Lofft, 329. (a) 2 V. Wms. Saund. 71 a; Co. Litt. 291.a. (y) Cross v. Law, 6 M. & W. 223. (z) Pennoir v. Brace, 1 Lord Raym. 245; 1 Salk. 320; 2 V. Wms. Saund. 6, n. 1; and see 2 Inst. 471. "One that is not party to the record, recognizance, fine, or judgment, as the heir, executor, or administrator, though they be privy, and though it be within the year, shall have no writ of execution, but are to have a scire facias to enable themselves to the suit; and so likewise of the tenant or defend Where a New Party to the Suit. ment allowed a public company to be sued in the name of its "public officer for the time being" (a), or in the name of “any officer of any such company" (b), or "in the name of one of two officers for the time being to be appointed by such company" (e), or in its corporate name (d), and expressly rendered the members of such company liable to execution on the judgment obtained, in an action against such public officer, officer, or company, this rule of law, "that where a new person, who was not a party to the judgment, derived a benefit by, or became chargeable to, the execution, there must be a scire facias to make him a party to the judgment," did not apply; and it was at one time held to be sufficient, previously to issuing execution against a member of a public company, to suggest on the record by leave of the Court, the facts which rendered him liable, without making him a party to the record by scire facias (e). But under more recent decisions, actions against the public In the case of a public officers of joint-stock companies, (established prior to the company. 7 & 8 Vict. cc. 110 and 113,) wherein it is sought to have execution on the judgment against the members of such companies, form no exception to this general rule. In Cross and others v. Law (ƒ), it was decided in the Court of Exchequer, and also in Whittenbury v. Law (g), in the Court of Common Pleas, and in Bosanquet and others v. Ransford (h), in the Court of Queen's Bench, and subsequently affirmed on error in the Exchequer Chamber (1), that the proper course of proceeding, where judgment has been obtained against the public officer of a joint-stock banking company, in order to have execution on the judgment against any member of the company, is by scire facias and not by entering a suggestion on the roll, overruling the decision of Bartlett and another v. Pentland (j). In the ant's part, for the alteration of person altereth the process; otherwise it is in cases of a statute staple or merchant, &c., because the process is given by other Acts of Parliament." (a) Joint-stock Banking Act, 7 Geo. IV. c. 46, s. 9. (b) Joint-stock Companies Act, 4 & 5 Will. IV. c. 94, s. 3, now repealed by 1 Vict. c. 73. (e) 1 Vict. c. 73, s. 3. (d) 7 & 8 Vict. c. 110, s. 25. (f) 6 M. & W. 223. (i) Ransford v. Bosanquet and (j) 1 B. & Ad. 704. "The uniform course, if new parties are in 7 8 Exceptions to the first Exceptions, where not required. case of joint-stock companies and joint-stock banking companies, however, established since the stats. 7 & 8 Vict. cc. 110 and 113, those statutes lay down a different rule, and render the issuing of a scire facias in such cases unnecessary (k). There are, however, many exceptions to the first general rule general rule. that execution cannot issue upon a judgment above a year old, without a revival of the judgment by scire facias; as where the execution has been suspended by the agreement of the parties (1), even by parol (m); or the plaintiff has judgment with a cesset executio for a year; because the delay is by consent of parties and in favour of the defendant, and the indulgence of the plaintiff ought not to be turned to his prejudice (n). Also where the defendant brings a writ of error, and thereby hinders the plaintiff from taking out execution within the year, because the writ of error after service of the notice of the allowance thereof, containing a statement of some particular ground of error intended to be argued (0), is a supersedeas to the execution, and the defendant in error must wait till it be determined (p). While the cause is depending on the writ of error, it is still sub judice whether the plaintiff shall recover or not, and the year for the execution ought to be accounted from the final judgment given (q). So, where the plaintiff has been prevented from suing out execution within the year, by the defendant's obtaining an injunction out of Chancery, because "the rule of reviving a judgment above a year old by a scire facias before suing out execution upon it, troduced, is by scire facias; sug- (k) See 7 & 8 Vict. c. 110, s. 68, (1) Hiscocks v. Kemp, 3 Ad. & E. 679; Morris v. Jones, 2 B. & C. 242; Heath v. Brindley, 2 Ad. & et seq. (m) Morgan v. Burgess, 1 Dowl. N. S. 850. (n) 2 V. Wms. Saund. 72 e, n.; 2 Tidd's Prac. 8th ed. 1155. (0) R. G. H. T. 4 Will. IV. r. 1, s. 9. (p) 2 V. Wms. Saund. 72 d, n.; 2 Inst. 471. (q) Bac. Abr. tit. Execution, H, 409; Ib. tit. Scire Facias, C, 131; 4 Com. Dig. tit. Execution, I, 4. Exceptions, where not required. which was intended to prevent a surprise upon the defendant, ought not to be taken advantage of by a defendant, who is so far from being surprised by the plaintiff's delay that he himself tries all manner of methods whereby he may delay the plaintiff” (r). In any of these cases, the year and a day does not begin to run till the time for which the execution has been stayed has elapsed, the writ of error is determined, or the injunction is dissolved. 9 merchant or zance. It has also been held that the conusee of a statute merchant, on a statute or of a statute staple, or of a recognizance in the nature of a recognistatute staple, may sue out execution at any time without a scire facias; or if the conusee die, his executor may sue out execution without a scire facias; or if the conusor be returned dead by the sheriff, execution may be taken out against his lands in the hands of his heir, without a scire facias. This advantage over the common-law rules, which attach to other securities, was given by the statutes which originated these securities, in order to secure a ready remedy for trading debts "to encourage strangers to trade with us" (s). Also, where a fieri facias, or elegit, or capias ad satisfaciendum has been taken out within the year after judgment, and not executed, it is unnecessary to take out a scire facias to revive the judgment (t); because the plaintiff has taken steps to satisfy his judgment, at a time when no presumption of payment existed (u); and the writ so taken out runs until it is executed (r): the only inference, if any, from the writ's not being returned, being, that the sheriff has been unable to find the defendant, in order to make the arrest (v). Also, in the case of the warrant of attorney required from an insolvent debtor, before his adjudication and discharge to con (r) Michel v. Cue et Uxor, 2 Burr. 660; accord. Hiscocks v. Kemp, 3 Ad. & E. 682. (s) Bac. Abr. tit. Execution, B; 2 V. Wms. Saund. 71 c; 2 Inst. 395, 471; see post, book i. ch. vii. (f) 2 Inst. 471; Com. Dig. tit. Execution, I, 4; Bacon's Abr. tit. Scire Facias, C, 133. (u) Per Parke, B., in Simpson v. Heath, 5 M. & W. 635; S. C., 7 Dowl. 832. (v) Per Parke, B., in Greenshiels v. Harris, 9 M. & W. 777; and see Thomas v. Harris, 1 Dowl. N. S. 793; Moss v. James, 1 D. & L. 807. The limitation of twelve months to a writ of mesne process "does not apply after judgment;" per Parke, B., Harmer v. Johnson, 14 M. & W. 343; and see the last case as to the principle laid down in the text generally; and see post, book i. ch. vii. 10 In the case of the crown. Not necessary for the Crown. fess judgment for the amount of the debts in his schedule, under the 1 & 2 Vict. c. 110, s. 87, such judgment has the force of a recognizance, and no scire facias is necessary to revive it on account of any lapse of time, but execution may at all times issue thereon against the future property of the insolvent, by order of the Insolvent Court (w). So also, in the case of a rule of Court, (on an award, or by an agreement, or for costs,) in the nature of a judgment, under the 1 & 2 Vict. c. 110, s. 18, a writ of execution may issue after the expiration of a year without a scire facias (x). And, lastly, it is not necessary for the Crown to sue out a writ of scire facias to revive a judgment, when more than a year has elapsed since the judgment was recovered (y); or to have execution on a recognizance, acknowledged more than a year and a day (z), for nullum tempus occurrit regi (a). Neither in case of the death of the debtor of the Crown is a scire facias necessary against his heir, executor, or administrator, the proceeding in that case being by writ of diem clausit extremum against his lands and chattels (6). Neither is a scire facias to have execution for a specialty debt due to the Crown, on a bond or recognizance (c); or on a debt of record, (on commission issued out of the Exchequer, and inquisition of a simple-contract debt taken, returned and recorded in the Exchequer (d),) in all cases necessary, though it is the usual practice to proceed by scire facias. If there is no doubt about the debt, and there is danger of its being lost, from the insolvency of the debtor; then upon an affidavit of these facts, and the fiat of the Chancellor, or one of the Barons of the Exchequer, the Crown by virtue of its prerogative may sue out an immediate extent in chief, without the intervention of a scire facias, to have immediate execution of the Queen's debt (e). For when once debts (w) See post, book i. ch. vii. (y) Anon. 2 Salk. 603; 2 Tidd, (z) "Where an obligation is acknowledged in a court of record, such recognizance is the same as a judgment, the conusor is personally present; the Court is supposed to know him as such a defendant against whom they give judgment;" Gilbert's Hist. View of the Exchequer, p. 121, and p. 97. (a) Tidd's Prac. 8th ed. 1140. (b) 2 Tidd's Prac. ib. 1140. (c) Gilbert's Hist. View of the Exchequer, p. 106. (d) 2 Tidd's Prac. 1092; Gilbert's Exch. 113, 166; and see post, book iii. ch. vii. (e) 2 Tidd's Prac. 8th ed. 1092. |