On a

should not be made of each of their lands and chattels, &c. recognizance of bail, the scire facias against the principal is in hac parte, or that he do and receive what the court shall consider of him in this behalf; but against the bail it is in eâ parte, or that they do and receive what the court shall consider of them in that [*1151] behalf. And where a scire facias was brought against three persons as bail, upon a recognizance acknowledged by them and the principal jointly, the writ abated; because this being founded on a record, the plaintiff ought to set forth the cause of the variance from the record, as that one was dead: But if an action be brought upon a joint bond against three only, when there are four or five obligors, there the defendant ought to shew that it was made by them and others in full life, not named in the writ; for otherwise the court will not intend that the bond was sealed by all of them. In scire facias to have execution for the damages and costs recovered against I. B. upon a recognizance of bail, conditioned, in case the said I. B. and G. K. should be condemned, that I. B. and G. K. should pay, &c. or render themselves, the plaintiffs allege that I. B. and G. K. have not paid, &c. or rendered themselves, according to the form and effect of the recognizance; the court of King's Bench held, on special demurrer, that the breach was ill assigned: for non constat but that I. B., who was alone condemned, has paid or rendered.

e

By the recognizance of bail in error, which will be more fully treated of in the next chapter, the plaintiff or plaintiffs in the writ of error become bound, with two sufficient sureties, in double the sum adjudged to be recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the judgment be affirmed, as well the debt or damages and costs adjudged upon the former judgment, as also all costs and damages to be awarded for the delay of execution. Therefore, if the writ of error be non-prossed or discontinued, or the judgment affirmed, the defendant in error may proceed against the bail upon their recognizance, by action of debt or scire facias at his election: And as a render in this case will not excuse the bail, there is no occasion to sue out a capias ad satisfaciendum, in order to proceed against them.

The scire facias against bail in error should be brought in the same court where the recognizance was taken, unless it was taken in the Common Pleas, and then the scire facias may be brought *either in that court, or in the King's Bench, to which the [*1152] record is supposed to be removed.i

b Append. Chap. XLIII. § 10. 13. And for the form of a scire facias against bail in the Exchequer, see id. § 14. and against bail in the palace court of Westminster, on the removal of a cause under 151. by habeas corpus, into the King's Bench, id. § 15.

1 Ld. Raym. 393. 2 Salk. 599. S. C. but see 1 Ld. Raym. 532. semb. contra. d Aleyn, 21.

Id. 21. And see further, as to the

This writ is made out by the

scire facias against bail to the action, 2 Wms. Saund. 71. c. to 72. c.

f 4 Maule & Sel. 33. and see 2 Moore, 66. 8 Taunt. 171. S. C.

Stat. 3 Jac. I. c. 8. 13 Car. II. stat. 2. c. 2. § 9. 16 & 17 Car. II. c. 8. § 3. 19 Geo. III. c. 70. and see Append. Chap. XLIII. § 16, 17, 18. 57. Chap. XLIV. § 24, &c.

h R. M. 5 W. & M. (b.) K. B.

i Lil. Ent. 643. 3 Mod. 251. 1 Wils. 98.

clerk of the errors; and, on a recognizance taken in the King's Bench, it recites not only the recognizance, but the condition of it, and the affirmance of the judgment,' &c. but on a recognizance taken in the Common Pleas, the scire facias merely states the recognizance, and the non-payment of the sum acknowledged to be due;m for in that court, the condition of the recognizance in error is not incorporated, as it is in a recognizance of bail on a capias ad respondendum, but is subscribed by way of defeazance; so that the recognizance and condition are two distinct records:" And besides, if the condition were stated, it would be necessary to state also the affirmance of the judgment, which might occasion difficulty, if the bail were to appear, and plead nul tiel record of the judgment of affirmance, which remains in the King's Bench.°

A scire facias upon a judgment is either by or against the same or different parties. As between the same parties, it will be proper to treat of a scire facias, in the following cases; first, after a year and a day; secondly, after a writ of error brought in the King's Bench, to compel the plaintiff in error to assign errors; thirdly, when judgment is given in covenant or annuity, or in debt on bond conditioned for the payment of an annuity, or of money by instalments, or for the performance of covenants, and damages arise, or money becomes payable, on the same security, after the judgment; and fourthly, when the debt or damages recovered are to be levied out of future effects, or, in the case of an executor or administrator, de bonis propriis. And first, of the scire facias after a year and a day.

At common law, in real actions, when land was recovered, the demandant after the year, might have taken out a scire facias to revive the judgment; because the judgment being particular quoad the land, 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 the same thing of which judgment was given: and therefore, if there was no execution appearing on the roll, a scire facias issued, to shew cause why [*1153] execution *should not be awarded: Besides, in real actions, if execution was not sued within the year, a scire facias lay for the land; because no other advantage could be taken of the judgment, as an action of debt could not be maintained thereon.

But if the plaintiff, after he had obtained judgment in a personal action, had lain by, and taken no process of execution within the year, he was put to a new original upon his judgment, and no scire facias was issuable; because there was not a judgment for any particular thing in the personal action, with which the execution could be compared: Therefore, after a reasonable time, which was a year and a day, it was presumed to be executed, and the law al

lowed him no scire facias, to shew cause why there should not be execution; but if the party had exceeded his time, he was put to his action on the judgment, and the defendant was obliged to shew how the debt, of which the judgment was evidence, was discharged." To remedy this, and make the modes of proceeding more uniform in both actions, the statute of Westm. 2. (13 Edw. I.) stat. 1. c. 45. gave a scire facias to the plaintiff in a personal action to revive the judgment, when he had omitted to sue execution within the year after judgment was obtained. The words of the act are, "that those things which are found enrolled before them that have the record, or contained in fines, whether they be contracts, covenants, obligations, services or customs, recognizances, or other things whatsoever enrolled, to which the king's court may lawfully give effect, from henceforth shall have such force, that hereafter it shall not be necessary to implead upon them: But when the plaintiff comes to the king's court, if the recognizance or fine levied be recent, that is to say, levied within the year, he shall forthwith have a writ of execution of the same recognizance. And if perchance the recognizance were made, or fine levied, of a longer time past, the sheriff shall be commanded, that he make known to the party of whom the complaint is made, that he be before the justices at a certain day, to shew if he has any thing to say, why such matters enrolled, or contained in the fine, ought not to be executed: And if he do not come at the day, or come and can say nothing why execution ought not to be made, the sheriff shall be commanded to cause the thing enrolled, or contained in the fine to be executed." But notwithstanding this statute, the plaintiff *may still [*1154] proceed, if he think proper, by action of debt on the judgment.

It hath been doubted, whether a scire facias lay to revive a judgment in ejectment, after a year and a day, either by the common law, or by force of the above statute; for at common law, this was looked upon as a personal action, and it was thought that the statute extended only to such personal actions in which debt or damages were recovered, and not to provide a remedy in this case, since at the time of making the act, the possession was not recovered in this action: But it seems now to be settled, and is confirmed by daily practice, that a scire facias lies on a judgment in ejectment; for the words of the act are, "whether they be contracts, &c. or other things whatsoever enrolled," which comprehend all judgments, and give the like remedy on them by scire facias, as the demandant had on a judgment in a real action at common law. In a late case however, where it appeared that the lessor of the plaintiff had neglected to sue out a writ of possession for more than twenty years after the recovery in ejectment, and in the mean time there

Bac. Abr. tit. Execution, H. but see 2 Salk. 600. 7 Mod. 64. 2 Ld. Raym. 806.

S. C.

Bac. Abr. tit. Execution, H.

1 Salk. 258. 2 Salk. 600. 2 Ld. Raym. 806. S. C. 3 Salk. 319. 1 Ld. Raym. 669. S. C. Bac. Abr. tit. Execution, H. The VOL. II.-48

seire facias in this case, after judgment against the casual ejector, should go against the tertenants, as well as the defendant. 1 Salk. 258. and see Carth. 2. 2 Salk. 600. 1 Ld. Raym. 669. 3 Salk. 319. S. C. Run. Eject. 477, &c. Append. Chap. XLVI. § 44, 5.

had been several changes of the property and possession, the court of King's Bench refused to grant a rule for issuing a scire facias to revive the judgment."

The reason why the plaintiff is put to his scire facias after the year is, because when he lies by so long after judgment, it shall be presumed that he hath released the execution; and therefore the defendant shall not be disturbed, without being called upon, and having an opportunity in court of pleading the release, or shewing cause, if he can, why the execution should not go: And it is said, that if the plaintiff delay executing a writ of inquiry till a year after interlocutory judgment, he cannot do it after, without a scire facias. The year must be computed from the day of signing judgment; and the year depending upon the statute 13 Edw. I. c. 45. the words of which are "infra annum," is to be reckoned by calendar months, and not by terms." And if the plaintiff sue a scire facias within a year after the judgment, he cannot afterwards have a capias within the year, till he hath a new judgment in the scire facias.b

[*1155] The general rule, however, that the plaintiff cannot take out execution after the year, without a scire facias, must be understood with the following restrictions. When a fieri facias or capias ad satisfaciendum is taken out within the year, and not executed, a new writ of execution may be sued out at any time afterwards, without a scire facias; provided the first writ be returned and filed, and continuances entered from the time of issuing it; which continuances may be entered after the issuing of the second writ, unless a rule be made upon motion, for the proceedings to remain in statu quo. And formerly, if judgment had been given, and no execution sued out within the year, yet the plaintiff might afterwards have entered an award of an elegit on the roll of the judgment, as of the same term with the judgment, and thence continued it down by vicecomes non misit breve: And though the court at first inclined to think, that an elegit ought to be actually taken out within the year, yet being informed by the clerks of the court, that it had been the practice for many years to make such an entry, &c. it was said to be the law of the court, and they ordered the execution to stand. But in a late case, the court of King's Bench was of opinion, that there was no reason to distinguish between an elegit and other executions: and therefore, where an elegit had been issued after a year, without a scire facias, or any previous writ sued out within the year, to warrant it, the court set it aside for irregularity; although the award of

an elegit had been entered on the roll, with continuances, after the rule was moved for.

If the plaintiff have judgment with a cesset executio, or stay of execution, for a year, he may, after the year, take out execution without a scire facias;s 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: 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. It is usual to insert a clause in annuity deeds, &c. that when execution is not taken out within a year, it shall not be necessary to revive the judgment by scire facias; and it seems that the court will give effect to this clause, by permitting execution to be taken out accordingly.i

So, if the defendant bring a writ of error, and thereby [*1156] hinder the plaintiff from taking out execution within the year, and the judgment be affirmed, the plaintiff in error nonsuited, or the writ of error abated or discontinued, the defendant in error may proceed to execution after the year, without a scire facias;k because the writ of error was a supersedeas to the execution, and the defendant in error must wait till it be determined. It has even been holden, in one case,' that if a writ of error be brought after the year is elapsed, and thereupon the former judgment is affirmed, such affirmance will revive the former judgment, and enable the party to take out execution, without a scire facias: But from this case it seems, that if the plaintiff in error be nonsuited, or the writ of error discontinued, there can be no execution of the former judgment, without a scire facias.

It was formerly holden, that if the plaintiff were restrained by injunction out of Chancery for a year, he could not take out execution afterwards, without a scire facias, because the courts of law do not take notice of Chancery injunctions," as they do of writs of error: besides, it might be no breach of the injunction, to take out execution within the year, and continue it down by vicecomes non misit breve, which cannot be done in the case of a writ of error. But in a modern case, where it appeared that the whole delay had arisen on the part of the defendant, by bills in Chancery for injunctions, and by obtaining time for payment, &c. the court of King's Bench were unanimous that this rule, of reviving a judgment above a year old by scire facias before execution, which was intended to prevent a surprise upon the defendant, ought not to be taken advantage of by one, who was so far from being surprised by the delay, that he himself had been trying all manner of methods, whereby he might delay the plaintiff; and therefore they discharged the rule for setting aside the execution with costs.

The scire facias upon a judgment must be sued out of the same