SCIRE FACIAS.

1. IF a judgment is recovered, and no execution issued thereon within a year and a day, the law presumes, prima facie, that it is extinct, and no execution can issue on such judgment, till it is revived by scire facias. Or an action of debt may be commenced on the judg ment, which is now seldom done. 3 Bl. Com. 421. Co. Lit. 290. b. 1 Saund. (by Wms.) 72. e. note 3.

2. But if an execution issues within the year, and is continued down several years, a new execution may issue without a scire facias. Str. 100. Co. Lit. 290. Barnes 210. 1 Saund. (by Wms.) 72. f. note 3.

3. So, if judgment be entered with stay of execution, by agreement, till such a time; there needs no scire facias till a year and day after the time agreed. Comy. Dig. EXECUTION (I, 4.) 1 Saund. (by Wms.) 72. f. note 3.

4. So, where the defendant had himself delayed the plaintiff, by in. junctions, &c. it was held that no scire facias was necessary, notwithstanding the cases in 1 Stra. 301. and 1 Salķ. 322. See 2 Burr. 660. 1 Saund. (by Wins.) 72. f. note 3.

5. There needs no scire facias, if error be brought of the judgment within a year after the judgment, till a year and a day after the error, or judgment thereon affirmed. Comy. Dig. EXECUTION (I, 4.) 5 Co. 88. a.) So, if the year had expired before the writ of error sued out, and the judgment be affirmed, or the plaintiff non-suited, or the writ of error discontinued, for it revives the judgment. 1 Saund. (by Wms.)

72. e. note 3.

6. The scire facias must be in the same county where the judgment was obtained, or execution awarded. Barnes 207. Comy. Dig. EXECUTION (I, 4.) 2 Saund. (by Wms.) 72. 9.

7. Where execution has been taken out after a year and a day, it is not void, but voidable only by a writ of error. 2 Saund. (by Wms.) 6. note 1. citing 3 Lev. 404. 1 Salk. 261.

8. It is a general rule, that where a new person, who was not a party to a judgment, derives a benefit by, or becomes chargeable to, the execution, there must be a scire facias to make him a party to the. judgment. 2 Saund. (by Wms) 6. note 1. 1 Ld. Raym. 245. 1 Salk. 319. 2 Ld. Raym. 768. 2 Inst. 471. 2 Saund. (by Wms.) 72. i.

9. But if there be two plaintiffs in a personal action, and one of them dies, that shall not put the other to a scire facias. So, if one of the defendants die; but a suggestion of the death must be made upon the record. (4 Bac. Abr. tit. EXECUTION, 413.) Nor, at the common law, did the action abate by the death of one of the defendants, where the

other had the whole by survivorship. Nor, where the action is founded on a tort, as trespass, ejectment, trover, conspiracy, and the like, against two, and one dies, though they are charged jointly. (2 Saund. by Wms. 72. i) And by Virginia Laws (2 Rev. Code, ch. 101, sect. 1, p. 126. no action shall abate by the death of either party, if it were originally maintainable by or against executors or administrators, but a scire facias may be awarded, &c. For the mode of prosecuting which see the above law.

10. If a single woman obtain judgment, or if a judgment be recovered against her, and she marry before execution, a scire facias must be brought by or against husband or wife, in order to execute the judgment. (2 Saund. by Wms 72. k. Tidd's Prac. Forms, Riley's edit. 323.) But if a wife be sued as a feme sole, and a verdict found for her on the plea of coverture, she may take out execution, for the costs, in her own name, because the plaintiff, having sued her as sole, is concluded from denying it. (Doug. 637.) Or the husband and wife may sue out a scire facias to have execution. Ibid.

11. If husband and wife obtain judgment, for a debt due to the wife before marriage, and the wife die before execution, the husband alone may have a scire facias, without taking out administration; or may, it seems, sue out execution in the name of himself and wife without a scire facias, for the nature of the debt is altered by the judgment, and it is become a debt due to the husband. 2 Saund. (by Wms.) 72. 1.

12. If judgment be recovered by a feme sole, and she marry, and then the husband and wife sue out a scire facias upon the judgment, and have an award of execution, and aftewards the wife die, the husband alone may have a scire facias to execute the judgment. 2 Saund. (by Wms.) 72, 1.

13. And in like manner, if a scire facias is brought against husband and wife, upon a judgment recovered against her when sole, and execution is awarded thereon against both, and afterwards the wife dies, a scire facias may be sued out against the husband after her death, to have execution of the judgment against him. 2 Saund. (by Wms.)

72.1.

14. But if husband and wife recover judgment for a debt due to the wife as executrix, and the wife die, the husband shall not have a scire facias upon the judgment, but the succeeding executor or administrator. 2 Saund. (by Wms.) 72. 1.

15. It seems clear, that where there are two or more plaintiffs or defendants in a personal action, or one or more of them die after judg ment, execution by fieri facias, or capias satisfaciendum, may be had, for or against the survivors, without a scire facias. 2 Saund. (by Wms.) 72. k.

16. If there be a judgment against A, and thereupon a fieri facias sued out, but before execution A dies intestate, or leaves executors, there needs no scire facias to renew this judgment, but execution of the goods may be made in the hands of the executor or administrator. Bac. Abr. tit. EXECUTION (G, 2.)

17. A man may plead in bar, or in abatement to a scire facias, as well as to other actions. 2 Saund. 72. t.

18. The sheriff, on the return of a scire facias, either returns scire feci (commonly interpreted, "made known”) or, nihil (a Latin word,

signifying nothing.) On the return of nihil, a second or alias scire facias issues; and if that be also returned nihil, judgment, according to the old practice, was entered against the defendants, two nihils being equal to a service, or scire feci. (2 Saund. 72. r, s.) But now, by the laws of Virginia (1 Rev. Code, p. 81, sect. 48, and p. 89, sect. 30.) no judgment shall be entered on the return of two nihils, unless the defendant reside in the district, county, or corporation, or unless he be absent from the commonwealth, and have no known agent or attorney therein; but such scire facias may be directed to the sheriff of any county or corporation, where the defendant or his attorney shall reside, or may be found; and being returned served, the court may proceed to judgment, as if the defendant had resided in the county or corporation. And writs of scire facias shall also now be served in the same manner as writs of capias ad respondendum, except that bail shall not be required. 1 Rev. Code, ch. 231, p 379.*

19. Writs of scire facias, to revive a judgment, or actions of debt thercon, shall not be prosecuted after ten years from the date of the judgment. (1 Rev. Code, p. 108, sect. 5.) Nor against executors or administrators, upon a judgment against the testator or intestate, after five years, from their qualification (1 Rev. Code, p. 167, sect. 57.) Saving the rights of infants, femes covert, &c.

How to proceed where the suit had abated by death, or where the parties die between interlocutory and final judgment. See 1 Rev. Code, p. 110, 111. 2 Rev. Code, p. 120, 126.

(A) Scire facias to revive a judgment obtained before a

single magistrate.

county, to wit.

Whereas on the

day of

in the year

before JP, a justice of the peace for the county aforesaid, A C recovered a judgment for dollars, for debt, and cents, for his costs, against AD, whereof he is convict as appears to me; and forasmuch as the said A C hath complained to me, that he hath not received any satisfaction for his said debt and costs; therefore I command you to summon the said A D to appear before me, at in the county aforesaid, on the to shew cause why execution should not be made of the debt and costs aforesaid; and that you be then and there, to shew how you have executed this warrant. Given, &c.

day of

(B) Scire facias against an executor.

(Pursue form (A) to the asterisk* at the word 'costs,' then say) and the said AD being dead, as I am informed; and the said AC having applied for remedy in that behalf; and being willing that what is right should be done, I command you to summon ‡ BD, executor of the last will and testament of the said A D, deceased, to appear before me, on the day of next, to shew cause why the said A C ought not to have execution against him for the debt and costs aforesaid, to be levied of the goods and chattels of

at

4

the said A D, in the hands of the said B D, to be administered; and that you be then and there, to shew how you have executed this precept. Given under my hand and seal, &c.

(C) Scire facias against an administrator.

(Pursue forms (A) and (B) combined, to this mark in form (B) then say) B A, administrator of all and singular the goods and chattels, rights and credits, which were of the said A C, deceased, to appear, &c. (conclude as in form (B.)

(D) Scire facias for an executor.

(Pursue form (A) to the asterisk*, then say) and the said A € (the creditor) being dead, as I am informed by A E, executor of the last will and testament of the said A C, deceased, and the said A E having applied for remedy in that behalf; and being willing that what is right should be done, I command you, that you make known to the said A D (the debtor) that he appear before me, at

on the

day of next, to shew cause why the said A E ought not to have execution against him, for the debt and costs aforesaid. Given, &c.

(E) Scire facias for an administrator.

(Pursue form (A) to the asterisk* then say) and the said AC (the creditor) being dead, as I am informed by A A, administrator of all and singular the goods and chattels, rights and credits, which were of the said A C, deceased, at the time of his death, who died intestate, and the said A A having applied for remedy in that behalf; and being willing that what is right should be done, I command you, that you make known to the said A D, that he appear, &c. (conclude as in form (D.)

(F) Scire facias by husband and wife, upon a judgment recovered by the wife while sole.

Pursue form (A) to the asterisk then say) and the said A C (the name of the wife before marriage) hath since intermarried with BH, as I am informed; and the said B H and A his wife having applied for remedy in this behalf; and being willing that what is right should be done, I command you, that you make known to the said A D, that he appear before me, at

on the

day of

next, to shew cause why the said B H and A his wife ought not to have execution against him, for the debt and costs aforesaid, Given, &c.

(G) Scire facias against husband and wife, upon a judgment recovered against the wife while sole.

(Pursue form (A) to the asterisk* then say) and the said A C (the name of the wife before marriage) hath since intermarried with B H,

as I am informed; and the said AC having applied for remedy in this behalf; and being willing that what is right should be done, I command you that you summon the said B H and A his wife to appear before

me, at

on the

day of

next, to shew cause why the said AC ought not to have execution of the debt and costs aforesaid. Given, &c.

An action of debt, at common law, will lie to revive a judg ment, as well as a scire facias, it will generally be more easy for the magistrate to issue a common warrant, for the amount of the original judgment, and costs, taking care to insert the names of the new parties, plaintiffs, and defendants.

RANT.

For forms of executions, see titles EXECUTION and WAR

SEAMEN.

THE congress of the United States having passed a law for the regulation of seamen, we must refer to the Appendix (No. 2.) of this work, where the subject will be treated of under "the duties of a justice of the peace arising under the laws of the United States."

If the keeper of a tavern sell any liquor to a sailor in actual pay, on credit, he shall not be entitled to recover the price thereof; and in any warrant, &c. brought for the same, it shall be dismissed, and the defendant recover double costs. 1 Rev. Code, p. 204, sect. 11.

For the above offence of entertaining any sailor without consent of his captain, the ordinary keeper forfeits two dollars to the captain for every offence. Ibid. sect. 12.

The master of any vessel putting on shore any disabled seaman or servant, before his contract for service is expired, without providing for his maintenance and cure, forfeits sixty dollars to the overseers of the poor of the county, recoverable by action of debt or information, and moreover, shall be liable to their action for all expences incurred in the maintenance and cure of such person, and shall be ruled to give special bail, on the overseers making affidavit of the cause of action. 1 Rev. Code, p. 205, sect. 7.

By an act passed at the session of 1800 (see 1 Rev. Code, ch. 284, p. 413; and tit. PENITENTIARY, of this work, ch. v.) in consequence of the surrender of Jonathan Robbins, by a magistrate of Vir ginia, to be tried before a foreign tribunal, magistrates in the sea-port towns had refused to execute the law of congress for apprehending deserters from the merchants' service. To remedy which inconvenience, the following act passed at the session of 1804. See 2 Rev. Code, ch. 52, p. 77.