CHAP. XLIII. OF WRITS OF SCIRE FACIAS; AND THE PROCEEDINGS THEREON. A Scire Facias is a writ founded on some matter of record, as a recognizance or judgment, &c. on which it lies to obtain execution," or for other purposes," as to repeal letters patent, hear errors, &c. In general, it is a judicial writ, issuing out of the court where the record is: but a scire facias to repeal letters patent is an original writ, issuing out of Chancery; and though in other cases it is a judicial writ, yet because the defendant may plead thereto, it is considered in law as an action: therefore, a release of all actions is a good bar to a scire facias: And for the same reason, there must be a new warrant, to authorize the appearance of the plaintiff's attorney; and there is no occasion for a rule to change the attorney in the former suit. So, where a judgment was entered for securing the payment of an annuity, before the 17 Geo. III. c. 26. which requires that " before any execution shall be sued out, or action brought on any such judgment, a memorial of the consideration, &c. shall be enrolled in Chancery;" the court of King's Bench set aside a scire facias, &c. issued after the act, to revive the judgment, for want of such a memorial. A scire facias, disclosing the facts upon which it is founded, and requiring an answer from the defendant, *was in one case said to be in nature of a declaration:' And [*1140] when the object of it is to obtain execution, on a judgment or recognizance, &c. it is properly called a writ of execution.m a Bac. Abr. tit. Scire facias, A. Lit. § 505. Co. Lit. 290. b. 291. a. F. N. B. 267. and see 3 Lev. 220. Bac. Abr. tit. Scire facias, A. B. Id. C. 3. For the proceedings in general on writs of scire facias, see Bac. Abr. tit. Execution, H. Com. Dig. tit. Pleader, (3 L.) Run. Eject. 477, &c. 2 Wms. Saund. 6. (1.) 71. (4.) 72. (5, 6.) Bingham on Executions, 118, &c. In treating of these proceedings, as well as those on writs of error, the reader will observe, that the learned editor of Saunders has followed pretty closely the order and arrangement in this and the following chapters. Post, Chap. XLIV. e Append. Chap. XLIII. § 6. and see Skin. 682. Comb. 455. S. C. where it is said, that though a scire facias be properly a judicial writ, yet being the foundation of an action, it is sometimes considered as in nature of an original. f Co. Lit. 290. b. 291. a. 2 Wils. 251. 2 Blac. Rep. 1227. 2 Durnf. & East, 46. & Co. Lit. 290. b. Comb. 455. Skin. 682. C. 2 Ld. Raym. 1048. 2 Wils. 251. S. h Cro. Eliz. 177. 2 Ld. Raym. 1048. 1252, 3. 1 Salk. 89. 2 Salk. 603. S. C. and see 2 Bos. & Pul. 357. (b.) Ante, *108. iSay. Rep. 218. and see 7 Durnf. & East, 337. 2aBos. & Pul. 357. Ante, *108. * 1 Durnf. & East, 267, 8. 1 Sid. 406. m Lit. § 505. A scire facias is either for the king or the subject. For the former, it is either to have execution on a judgment or recognizance, &c. or for other purposes, as to repeal letters patent, &c. On a judgment or recognizance, there need not be any scire facias for the king, where more than a year has elapsed since the judgment was recovered, or recognizance acknowledged; for nullum tempus occurrit regi:" but the regular mode of proceeding thereon is by suing out an extent in chief, against the body, lands and goods of the crown debtor; and, after his death, a scire facias is unnecessary, the proceeding in that case being by writ of diem clausit extremum, against his lands and chattels. A scire facias, however, is sometimes issued on a recognizance, if it be doubtful whether it is forfeited." When the debt arises on a bond or obligation, taken pursuant to the statute 33 Hen. VIII. c. 39. which is declared to have the same force and effect as a statute staple, the ordinary mode of proceeding against the principal or sureties, when solvent, is by scire facias, to have execution thereof; or, upon an affidavit of danger, and the fiat of a baron, the king, we have seen,P may proceed by suing out, in the first instance, an immediate extent in chief; but without such an affidavit, a scire facias is the only course. And this is also the common mode of proceeding against sureties; or for the recovery of debts found to be due to the king's debtor from other persons, when solvent, by inquisition on writs of extent, or diem clausit extremum, or on a special capias utlagatum.* The scire facias to have execution for the debt of the king, is a judicial writ, issuing out of, and under the seal of the court of Exchequer: And it may be issued of course, without the fiat of a baron." In point of form, it recites the judgment, recognizance, bond, or commission and inquisition, on which it is founded; and commands the sheriff to warn the defendant, to appear before the barons of his majesty's Exchequer at Westminster, on a day certain, to shew cause, why the crown should not have execution of the sum re[*1141] covered, acknowledged, or found to be due: And every scire facias for debts in aid, must be awarded into the proper county where the debtor is mentioned in the specialty to reside, unless upon a scire facias returned in London and Middlesex. This writ is signed by the king's remembrancer, and tested in the name of the chief baron: And though it may be sued out in vacation, yet it must be always tested and returnable in term: Therefore, a scire facias cannot be sued out in vacation, on an inquisition taken under an extent, after the end of the preceding term; because as the scire facias, if sued out in vacation, must be tested as of the antecedent n 2 Salk. 603. and see Gilb. Excheq. 166, 7.1 Price, 395. West, on Extents, 316, &c. Ante, 1090. Ante, 1092. 1116. t Ante, *156. u 3 Price, 279. Append. Chap. XLIII. § 1. and see Gilb. Excheq. 166. Trem. P. C. 613, Trem. P. C. 572. 600. 608. Gilb. Excheq. 14. Ante, 1091, 2. P Ante, 1091, 2. 177. y Gilb. Excheq. 168. R. H. 15 Car. I.in 43 Price, 288. 292. and see Gilb. Ex- Scac. Id. 178. West, Append. 126. Man. cheq. 168. Ante, 1092. L. Ex. Append. 230. Ante, 1092. 2 West, 316. term, and must recite the inquisition as the foundation of it, it would appear in such case, that the scire facias was sued out before the inquisition was taken on which it is founded: And accordingly the court of Exchequer, in a late case, quashed the scire facias on motion; and ruled, that the objection could not be got rid of by a special memorandum upon the record, shewing the day on which the scire facias was really issued. But where a scire facias, founded on an inquisition, mis-recited the inquisition, and fixed by such recital a day on which the debt had been found to be due, differing from the true day mentioned in the inquisition, the court of Exchequer (on cause being shewn,) gave leave to amend the writ, on payment of costs, &c. even after the defendants had pleaded.b On this writ, if the sheriff warn the defendant, he returns scire feci; if he do not warn him, he returns nihil, in which latter case a second scire facias issues. On the return of scire feci, or of two nihils, a four day rule is given on the writ, for the defendant to appear and plead thereto, or an extent to issue;d and when the scire facias is returnable on the last day of term, a rule may be given to appear by the sealing day after that term. If the defendant appear, then another four day rule is given, for the defendant to plead, or an extent to issue; and after the expiration of four days, the defendant may obtain six weeks further time to plead, on a motion of course, on the signature of counsel: and he may obtain further time, after the expiration of the six weeks, by motion in court, on an affidavit of special circumstances. If the defendant do not appear on the *first rule, or appearing, do not plead on [*1142] the second, judgment may be entered up for the king; or process of extent may issue, without any judgment on the scire facias: And it is an indulgence in the court that they do not enter up judgment; for if judgment were entered, then the court would be concluded, though perhaps the defendant had no notice of the debt. The defendant having appeared to the scire facias, may either move the court to set aside the proceedings, if irregular; or, after declaration,' plead in abatement or in bar, or demur, as in other actions. And the statute of limitations may be pleaded to a scire facias, issued by the crown against the drawer of a bill of exchange, in the hands of the crown debtor, and which has been seized by the sheriff under an inquisition, on prerogative process." m In treating of the scire facias to repeal letters patent, it will be proper to consider, 1st, in what cases it lies, and in what not; 2dly, the writ itself, and mode of suing it out; and 3dly, the proceedings thereon. If the king grant any thing which by law he cannot grant, he, jure regio, for the advancement of justice and right, may a 3 Price, 288. West, 316, 17. S. C. b 4 Price, 181. c Trem. P. C. 609. d West, 317. and see Gilb. Excheq. 168, 9. Append. Chap. XLIII. § 3. b West, 317, 18. Gilb. Excheq. 170. 3 Price, 278. 290, 91. 1 Append. Chap. XLIII. § 2. m For the form of an issue in scire facias, Gilb. Excheq. 169. Append. Chap. on an extent in aid, against the assignees of a bankrupt, see Append. Chap. XLIII. XLIII, § 4. West, 318. § 5. Gilb. Excheq. 169. Parker, 94. n 6 Price, 24. have a scire facias to repeal his own letters patent; as if he grant lands which were conveyed to the king by covin, to defeat a subject of his seigniory:P But if the patent be void in itself, non concessit may be pleaded, without a scire facias to repeal it. So, if the king's grant be founded upon a fraud, or false suggestion, he may have a scire facias to repeal it; as if the patent recite another to have an office, who had in truth forfeited it, and grant it when it shall happen to be vacant, after the death, surrender, &c. of that other; or that the invention, for which it was granted, was a new one, when it had been previously invented, or used by others. And it is said to have been determined, that the failure of one of several subjects of a patent, vitiates the whole; because, the consideration being entire, it cannot be avoided as to part, and remain good as to the rest. So, if an officer make a forfeiture of his office, granted by patent, the king may have a scire facias for repealing his patent;" and that, without [*1143] an inquisition or office found of the forfeiture. So if the king, by his letters patent, grant the same thing to two persons, the first patentee may have a scire facias to repeal the second patent; but the second patentee cannot bring a scire facias, though the better right should be in him: And in general, when a patent is granted to the prejudice of another, he may have a scire facias to repeal it, at the king's suit; as if a market, fair, &c. be granted to the annoyance and prejudice of an ancient market, or fair of another. It has indeed been holden, that the person prejudiced by the patent may, upon the inrolment of it in Chancery, have a scire facias to repeal it, as well as the king." The scire facias for repealing letters patent is an original writ, issuing out of Chancery; and is usually directed to the sheriff of Middlesex, and returnable in the petty bag office, for it is a record there: Or it may be brought in the King's Bench; and if it be returnable there, that court only have jurisdiction to examine the irregularity of the issuing, and return, &c. This writ ought to be founded on some matter of record: And therefore, a scire facias to repeal a patent ought to be in Chancery, when the patent is upon record; or in a court where a forfeiture, or other cause of repeal, appears by office, or other matter upon record in the same court.f But the patent itself is a sufficient record, upon which a scire facias may be founded for repealing it. So an inquisition, which finds a patent and cause of forfeiture, is a sufficient ground for a scire facias, or an information or indictment for an offence which is at Abr. 191. (U.) pl. 2. 2 Dyer, 276, 7. a Id. 276. 3 Lev. 220. 2 Vent. 344. S. C. b 6 Mod. 229, and see 2 Wms. Saund. 72. q. Com. Dig. tit. Patent, F. 6. 7. Durnf. & East, 367. € 4 Inst. 88. 3 Lev. 223. d 4 Inst. 72. but see 6 Mod. 229. 13 Lev. 223. and see 6 Mod. 229. Com. Dig. tit. Patent, F. 7. h cause of forfeiture, and a conviction thereon. Previously to suing out the writ, a petition or memorial must be presented to his majesty, and a warrant obtained thereon to the attorney-general, upon which he will grant his fiat,' for suing it out: but it is said, that when a patent is granted to the prejudice of a subject, the king of right is to permit him, upon petition, to use his name for the repeal of it, in a scire facias at the king's suit, in order to prevent multiplicity of actions upon the case, which will lie notwithstanding such void patent. In point of form, the scire facias recites the patent, and states the ground upon which it is meant to [*1144] be impeached; as, if the patent be for a new invention, that the patentee was not the first and true inventor; but that it had been previously invented, or used by others:" And a scire facias by the king to repeal a patent, upon the forfeiture of an office, ought to set forth the cause of the forfeiture: but it is not necessary to do so, in a scire facias by a former patentee:P and if the writ allege matter by the words, "whereas we are given to understand and be informed," &c. it is well enough; for they are sufficient to put the party to answer. A scire facias out of the petty bag office, to repeal a patent, returnable before the king in his Chancery, ubicunque, &c. generally is good, without limiting it to England." The judgment on a scire facias for repealing letters patent, may be either by confession or default: If the defendant can say nothing for maintaining the patent, judgment may be for annulling it, upon his confession; or if he do not appear, upon scire feci or two nihils returned, judgment shall be given in like manner for his default." If he appear to the writ, he may plead thereto, in abatement or in bar; or he may demur upon the scire facias, if the matter alleged be not sufficient for a repeal of the patent." If the writ be returnable in the petty bag office, and issue be joined thereon, the court of Chancery cannot try it by a jury; but the chancellor delivers the record to the court of King's Bench, to be tried there: and though it is said, that after trial had, the record is to be remanded into Chancery, and judgment to be there given, yet the practice has been to give judgment in the King's Bench: And if there be a demurrer to part, and issue on the residue, the chancellor delivers the whole record to the court of King's Bench, and judgment is given there upon the demurrer, as well as upon the issue. Formerly, it seems, the chancellor used to deliver the record propriâ manu, to the court of King's Bench himself; but the present course is to deliver it by the clerk of the petty bag; for what is done by his officer, may be said to be with the proper hand of the chancellor: And it is not necessary that the issue should be tried at bar: It may be tried at |