William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 2) online

. (page 50 of 81)
Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 2) → online text (page 50 of 81)
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because that court is ambulatory : But if it be brought upon a judg-
ment in the Common Pleas, it is otherwise; because that court is
confined to a certain place^. It then states, that altiiough judgment
be thereupon given, yet execution of the debtor damages slid remains
to be made; and commands the sheriff, to make known to the de-
fendant, that he be in court at the return-day, to shew why the
plaintitl" ought not to have execution against him for the debt or
damages, according to the form and effect of the recovery, &c'.
This being a judicial writ, must pursue the nature of the judgment:

a i Salk. 5^3. Sty. P. R. 375. Ed. r.Ol. 2. 492. {a). 493.
/4«/e, 490. Append. Chap. XLIII. § 58. «2 Blac. Rep. 1140. Append. Chap.

>> Id. ibid. 2 Lil. P. R. 499. Ed. 1719. 1 XLIIl. § 59.
Inst. Cler. 152. ' 3 Moore, 757. 1 Brod. & Blng. 381. S, C.

c Imp. K. B. 519. 2Sel. Pr. 286. g 2 Sel. Pr. 286. and see 2 Blac. Rep.

d Imp. K. B. 512. BlaJcely v. Vincent, T. 995.
35 Geo. III. Waters v. Hales, E. 37 Geo. III. '» 3 Salk. 321.

K. B. 2 Barn. & Aid. 773, 1 Cljit. Rep. * Append, Chap. XLIII. § 6J, &c.

535. S. C. 1 Dowl. & Ryl. 181. Ante, 491,


therefore, if a joint judgment be obtained against (wo, the scire facias
must be against both^ : And in setting out the judgment, if there be
a material variance, it will be fatal, on nul tiel record.

When a scire facias is brought in the King's Bench, upon a
judgment of an inferior court, it must appear in the writ itself, how
the judgment came into the King's Bench, whether by certiorari
or by writ of error, because the execution is different'' ; for if it came
by certiorari, the scire facias, we have seen*^, ought to shew the
particular limits of the inferior jurisdiction, and pray execution within
those limi(s : But if the judgment be removed into the King's Bench
by writ of error, and affirmed, the party may have execution in any
part of England ; for by the affirmance, it is become the judgment
of the King's Bench''.

After the judgment has been once revived by scire facias, if the
plaintiff do not take out execution within a year% or the defendant
die before execution^, the plaintiff cannot afterwards take it out,
without a new scire facias, or action on the judgment ; but he may
have a new writ without motion, for the judgment was revived

Secondly : As the parties, in the King's Bench, have no day in
court given to either of them, on the removal of the record by writ
of error, the defendant in error hath no other way of compelling
the plaintiff to assign his errors, than by suing out a writ of scire
facias qiiare executionem non, &c.'' ; and if upon such writ, the
plaintiff in error do not assign errors, but suffer judgment to pass by
default upon scire feci, or two nihils^ no errors afterwards assigned
shall prevent execution'. This writ, and the proceedings thereon,
will be more fully treated of in the next clmpter'^.

Thirdly : With respect to demands arising after the judgment, it
is said to have been adjudged, that in covenants perpetual, as to re-
pair, &c, if they be once broken, and an action of covenant brought,
and a recovery had thereon, if they be afterwards broken, the plaintiff

a 2 Salk. 593. Carth. 105. S. C. 8 /a. '"-U And see further, as to the scire

b 3 Salk. 320. 1 Ld. Raym. 216. S. C. but facias on a judgment, after a year and a

see the statutes 19 Geo. III. c. TO. and 33 day, 2 Wms. Saund. 6. (I), e-.f. g.

Geo. III. c. G8. yinte, 401, 2. 10:2. »> Godb. G8. 2 Leon. 107. Append. Chap.

c.4«^e, 401. XLIII. § 15, G.

d Append. Cliap XLIII. § 77, &c. 1 Ld. ' Carth. 40, 41.

Raym. 216. 3 Salk. 320. S. C. and see 3 •* For tlie form of a scire facias to disprove

Durnf. & East, 637. a delit, in the mayor's court of London, after

« 2 Cromp. 1(>3. judgment and execution on a foreign at-

i 2 Salk. 598. tachment, see Append. Chap. XLIII. § 80.


shall have a scire facias upon the judgment, and need not bring a
new writ of covenant''.

Upon a writ ot" annuity^ the old books differ as to the necessity of
a scire facias, in order to have execution for subsequent arrears.
In some books it is said, that if judgment be given in a writ of aw-
ntiity, (he plaintilf shall iiave execution, within a year after every
<lay of payment, by Jieri facias or elegit^ though it be many
years after the judgmoni'' ; but other books seem to hold a different
doctrine, and that for arrearages incurred after the judgment, it is
necessary to have a scire facias, in order that the defendant may have
an opportunity of pleading payment, or other matter in bar of exe-
cution*^ : And this latter opinion is in some measure confirraed by the
language of the judgment, which is to recover the annuity, and ar-
rearages of the same, as well before the bringing of the action as
afterwards, up to the time when judgment is given*^ ; but the amount
of the arrearages subsequent to the judgment not being ascertained,
it seems to be necessary to have a scire facias, to warrant an exe-

In an action of debt on bond, conditioned for the payment of an
annuifjf, after judgment had been once obtained, it does not seem to
have been formerly necessary to have a scire facias, to warrant an
execution for subsequent arrears ; but an execution might have been
sued out for such arrears, without a scire facias, at any time within
a year alter they were incurred ; or even afterwards, if a writ of exe-
cution had been previously taken out and returned, and was pro-
])erly continued down^ Under such an execution, however, the
plaintiff' was not allowed to levy the whole penalty, but only the arrears ;
and therefore, where he levied the whole penalty, the court of Common
Pleas made a rule upon him to refund the overplus, beyond what
would satisfy the arrears, and that judgment should stand as a secu-
rity, with liberty to take out execution as future arrears should arise^.
And if judgment be entered up for the penalty of a bond, given to
secure an annuity, and the defendant taken in execution thereon, when
the warrant of attorney, under which such judgment was entered up,
only authorized the taking out execution for the arrears, the court, we
have seen% will set aside the execution in toto, and not merely charge

a Cio. Kliz. 3. but see 3 Leon. 31. Abr. 2'29, 1 Salk. 238. 2 Salk. 600.

b 11 Edw. HI. •22. 2 Inst. 471. 1 Rol. ^ Co. Ent. 50. Cro. Car. 436. Anle, 963.

Abr. 900. 2 Blac, Rep. 844. ^ 2 Blac. Rep. 843. and see 1 H. Blac.

«= 11 Hen. IV. 34. Bio. Abr. tit. Annuity, 297.

pi. 17. tit. Scire facias, pi. 75. Co. Lit. 145. ^2 Blac. Rep. 1111.

2 Co. 37. 6 Co. 43. Jenk. 31, 2. 1 Rol. ^ Ante, 1035.


the defendant pro iantu"^. So, in an action of debt on bond, con-
ditioned for the payment of money by instalments, where the pro-
ceedings were stayed on payment of one or more of the instalments,
and judgment entered as a security for the remainder, with a stay of
execution till they should become due, it does not seem to have been
formerly necessary for the plaintiff to sue out a scire facias, for
the recovery of subsequent instalments, if execution was taken out
within a year after each default''. But now, as a bond conditioned
for the payment of an annuity, or of money by instalments, is
holden to be within the statute 8 & 9 W. III. c. 11. § 8^ it seems
necessary to proceed by scire facias on that statute, for subsequent
arrears, or instalments'' ; unless judgment be entered up on a warrant
of attorney, which is not within the statute*.

When judgment is entered in an action of debt on bond, or on
any penal sum, for non-perl'ormance of covenants or agreements in
any indenture, deed or writing contained, we may remember^, that by
the statute 8 & 9 VV. III. c. 11. § 8. it remains as a security to
answer such damages as shall or may be sustained, for further breach
of any covenant or covenants in the same indenture, deed or writing
contained : and the statute further directs, that " the plaintiff may
" have a scire facias upon the said judgment against the defendant,
" or against his heir, tertenants, executors or administrators, sug-
*' gesting other breaches of the said covenants or agreements, and to
*' summon him or them respectively to shew cause, why execution
" should not be had or awarded upon the said judgment^; upon
" which there shall be the like proceeding, as in the action of debt
*' upon the said bond or obligation, for assessing damages upon trial
" of issues joined upon such breaches, or inquiry thereof upon a writ
" to be awarded in manner as therein directed ; and that upon pay-
" ment or satisfaction of such future damages, costs and charges, all
" further proceedings on the said judgment are again to be stayed,
" and so toties quoties, and the defendant, his body, lands or goods,
" shall be discharged out of execution."

Fourthly : With regard to future effects, it is enacted by the
statute 5 Geo. II. c. 30. § 9. that " in case any commission of bank-
*' ruptcy shall issue against any person or persons, who shall have
*' been discharged by virtue of that act, or shall have compounded
*' with his her or their creditors, or delivered to them his her or their

• 16 East, 163. d Append. Chap. XLIII. § 81. 83.

*> 2 Str. 814. 957. 2 Blac. Rep. 7Q6. 038. « Ante, 633.

Barnes, 283. Anle, 383, 9. 2 Wm% Sound. f Ante, 632. and see 2 Wnis. Saund. 72. g,

72. g, s Append. Cliap. XLIII. § 32.

■f 4nUi 633.


" estate or effects, and been released by them, or been discharged by
" any act for the relief of insolvent debtors, then and in either of
" those cases, the body and bodies only of such person and persons,
" conforming as therein mentioned, shall be free from arrest and im-
" prisonment, by virtue of that act ; but the /uture estate and effects
" of every such person and persons shall remain liable to liis her
" or their creditors, as before the making of that act : (the tools of
" trade, necessary household goods and furniture, and necessary
" wearing apparel of such bankrupt, and his wife and children, only
" excepted,) unless the estate of such person or persons, against
" whom such commission shall be awarded, shall produce, clear after
" all charges, sufficient to pay every creditor under the said com-
" mission, Jijteen shillings in the pound for their respective debts."
And there is a similar provision in the statute 49 Geo. III. c. 121".
with respect to an assignee becoming bankrupt, who shall, at the time
of the commission issuing against him, be indebted to the estate of
the bankrupt, of which lie was assignee, to the amount of lOOZ. or
upwards, in respect of money come to his hands as such assignee, and
wilfully retained or emj)loyed by him for his own benefit. Upon the
former of these statutes it has been holden, that though a prior
commission be superseded by consent, a second bankruptcy does not
protect future effects, unless fifteen shillings in the pound are paid
under the second commission'" : And a deed of composition embracing
all the creditors, under which many of them came in, is, in case of
a subsequent commission of bankrupcy, such a compoundin<T with his
creditors, as will, within the statute 5 Geo. II. c. 30. § 9. deprive
the bankrupt of the benefit of his certificate, to protect his future
effects from being liable to be taken in execution, althouo-h some of
the creditors did not come in under the deed of composition"^. But a
deed of composition framed only for the joint creditors of several
j)ersons, one of whom afterwards becomes bankrupt, is not such a
compounding with his creditors, as will avoid the effect of his cer-
tificate, or subject his future effects to be taken in execution : the
compositions which the statute contemplates, being not such as are
limited and extend to a particular class or description of creditors
only, but such as are general, and calculated to admit all creditors
of whatever description they may be''. And the proving of a debt
under a commission of bankruptcy issued against a person who had
before compounded with his creditors, and whose estate under the
commission had not produced, nor would produce, Jlfteen shillings la

* § 6. c 1 Maule & Sel, 182.

*>i)ou-. 46. '115 East, 619.


the pound, but who, before he became bankrupt, paid the creditors
with whom he compounded, the full amount of their debts, was held
to discharge the bankrupt, in respect of his future estate and effects,
from an action for the debt so proved\

When the defendant pleads his bankruptcy, and the plaintiff relies
on the defendant having been a bankrupt before, it is sufficient proof
of the first bankrupcy, to produce the proceedings, and to sliew that
the defendant submitted to that commission, without proving the
trading, petitioning creditor's debt, and act of bankruptcy''. To
prove that the defendant, who pleads his bankruptcy, had before been
discharged as a bankrupt, the plaintiff must shew that the defendant
obtained his certificate under the former commission, either by the re-
gular proof of it, or by secondary evidence, after a notice to produce
it : Without such notice, the defendant's affidavit of conformity under
the former commission, was liolden insufficient*^. And the book kept
in the office of the secretary of bankrupts, in which entries are made
of the allowance of certificates, is not secondary evidence**. But after
notice to produce the former certificate, it is enough if witnesses state
they were employed by the defendant to solicit that certificate ; and
that looking at the entries in their books, they have no doubt it
was allowed by the Lord Chancellor'*. And the certificate under a
second commission is no bar to an execution against the bankrupt's
effects, unless it appear affirmatively, that his estate had produced,
clear after all charges, sufficient to pay every creditor under the com-
mission fifteen shillings in the pound, for their respective debts :
Evidence that it will probably produce so much, is not sufficient®.

The judgment against a bankriqjt, under the above circumstances,
is general, if given before he has obtained his certificate under the
second commission ; or if given afterwards, it may be special, against
his future estate and effects, with the exceptions in the statute.
On a general judgment, the plaintiff, it seems, cannot sue out a special
execution against the future effects of the bankrupt ; such an execu-
tion not being warranted by the judgment^ But where the defen-
dant, having given a warrant of attorney to confess a judgment, took
the benefit of an insolvent act, and then became bankrupt and obtained
his certificate, after which the plaintiff entered up a ^ewerai judgment,
and sued out a general execution against his effects ; the court of
Common Pleas held the proceedings to be regular, and that no scire

» 5 Maiile & Sel. TS. and see 2 Chit. Rep. < 16 East, 225. and see 5 Durnf. & East,

114. Ante, 1049. 287. 1 Bos. & Pul. 467. 3 Esp. Rep. 195.

b 3 Esp. Rep. 195. Kingsford v. Tracey, H. 43 Geo. III. K. B.

«: 4 Campb. 282. / 1 Durnf. & East, 80.
^ 3 Campb. 499.


facias was necessary to authorize either the judgment or execution ;
no dividend appearing to have been made, nor any goods taken under
the execution more than the plaintiff was entitled to^

When a writ of scire facias is necessary, as where the judg-
ment has been given more than a year, and the defendant in the mean
time has been taken in execution, and discharged upon obtaining his
certificate, the scire facias should state the judgment, and the cir-
cumstances which make the defendant's future estate and effects
liable to satisfy it, as that he was before a bankrupt, or had com-
pounded with his creditors, &c. ; and in particular it is necessary to
aver, that the bankrupt's estate had not paid fifteen shilings in the
pound under the second commission, at the time of suing out the
writ : It then states, that the defendant has become seised or pos-
sessed of some estate or effects ; and commands the sheriff, that he
make known to the defendant, to appear in court at the return day,
to shew why the jdaintiff should not have execution of the debt or
damages, to be levied of the estate and effects whereof the defendant
hath become seised or possessed, since the obtaining of his certificate
under the last commission, except his tools, &c'*.

By the Lords'* act, (32 Geo.W. c. 28. § 17. 20.) we may re-
raember% that " notwithstanding any discharge obtained by virtue of
*' that act, for the person of any prisoner, the judgment obtained
" against every such prisoner shall continue and remain in force, and
" execution may at any time be taken out thereon, against the lands,
" tenements, rents or hereditaments, goods or chattels of any such
" prisoner, other than and except the necessary wearing apparel and
'* bedding for himself and family, and the necessary tools for the
" use of his trade or occupation, not exceeding 10/. in value in the
" whole, as if he had never been before arrested, taken in execution,
" and released out of prison." There is also a similar provision in
the statute 48 Geo. III. c. 123. for the discharge of debtors in exe-
cution for small debts. And it has been determined, that the effects
acquired by an insolvent, after his discharge under the 34 Geo. III.
c. 69. are liable to be taken in execution for a debt due before**. But
an execution sued out against the goods of a defendant was set
aside, and the money which had been levied under it ordered to be
restored ; the defendant having been discharged, pending the action,
under the insolvent act, 1 Geo. IV. c. 119^.

a 3 Bos. & Pul. 135. and see 2 Chit. Rep. d 6 Durnf. & East, Z66. and see 8 East,

114. 5b. Stat. 44 Geo. III. c. 108. § 63. 51 Geo.

«> Append. Chap. XLFII. § 86, 7. and see III. c. 125. § 60. 54 Geo. III. c. 28. § 59.

2 Wms. Saund. 72. g. h. Ante, 391 .

c Ante, 390. e s Prjce, 607.


On a oeneral judgment, obtained against a defendant before his
<lischarge under an insolvent act, no special execution can be taken
out without first suing out a scire facias''. And where a warrant
of attorney was given before the passing of an insolvent act, of which
the defendant was entitled to take advantage by pleading in discharge
of his person, &c. it was holden, that a general judgment signed
by virtue of such warrant of attorney, after the defendant's discharge,
would not warrant a special execution under the acf^,. But it seems
that in this case, & general execution, pursuing the judgment, would
be regular ; and that a scire facias is unnecessary^

In the case of an executor or administrator, the judgment against
him is either upon the plaintiff's confession of the plea of plene ad-
ministravit, or plene administravit prseter, for the debtor damages
and costs, to be levied, as to the whole or in part, of the goods of the
testator or intestate, which shall afterwards come to the hands of the
defendant to be administered; which is called a judgment of assets
quando acciderint : or it is after a verdict, demurrer, or issue of
nul tiel record, or by confession of the defendant, or nihil dicit, for
the debt or damages and costs, to be levied of the goods of the testa-
tor or intestate, in the hands of the defendant, if he hath so much
thereof in his liands to be administered, and if not, then the costs to
be levied of his own proper goods".

In the first case, the judgment appears to be founded on the opinion
of the court in Mary Shipley^ s case% where it was holden, that upon
a plea of plene administravit, (he plaintiff may have judgment for his
debt presently, for thereby the defendant confesses the debt ; but he
cannot have execution, until the defendant have goods of the deceased,
when he may either sue out a scire facias^, or bring an action of
debt upon the judgment, sujjgesting a devastavit : And tiiough this
opinion was questioned in the case of Dorchester v. JVebb", yet in a
subsequent case'' it was established, and has ever since been adhered
to. So, in debt against an heir, if he plead nothing by descent, the
plaintiff may have judgment presently, and a scire facias when
assets descend". But by taking judgment of assets quando acci-
derint, the plaintiff admits that the defendant has fully administered

» 1 Durnf. & East, 19. Append. Chap. e 3 Co. 134.

XLIII. § 88. t Append. Chap. XLIII. § 85.

b 1 Durnf. & East, 80. and see 2 Wms. S Cro. Car. 3T2.

Saiind. 72. h. i. h jVe/io« v. Noel and others, 2 Saund. 226.

c Per Cur. H. 41 Geo. III. K. B. 3 Bos. 1 Sid. 448. 1 Lev. 286. 1 Vent. 94, 5. 2

& Pul. 183. C. P. Keb. 606. 621. 631. 666. 671. S. C. Hob.

«1 4 Diunf. & East, 648. 7 Durnf. & East, 199. S. P. and see 7 Durnf. & East, 29.

3i9. » 3 Co. 134.


to that time ; and therefore on a scire facias, or action of debt on
the judj^ment, su^^estlng a devastavit, the court will not allow the
plaintiff to give any evidence of effects come to the defendant's hands
before the judgment''. And for the same reason, the scire facias
on a judgment of assets quando acciderint, must only pray execu-
tion of such assets as have come to the defendant's hands since the
former judgment ; and if it pray execution of assets generally, it
cannot be sujjported''. Where, upon a suggestion of assets, a scire
facias was taken out, and assets were found for part, judgment was
given to recover so much immediately, and the residue of assets in

In proceeding upon a judgment against an executor or administra-
tor, after verdict, &c. it is usual for the plaintiff to sue out a fieri
facias de bonis testatoris, si, Sfc. et si nan, de bonis propriis, ac-
cording to the judgmenf^ ; upon which tlie sheriff, if he cannot exe-
cute the writ according to its tenor, either returns nulla bona ge-
nerally, or nulla bona and a devastavit by the defendant*'. On the
latter return, the plaintiff, we have seen^, may have execution im-
mediately against the defendant, by capias ad satisfaciendum, or
feri facias de bonis propriis : But on the former, the ancient course
was to issue a special writ, for the sheriff to inquire whether the de-
fendant had wasted any of the goods of the deceased^ : And if a
devastavit were found, and returned by the sheriff, a scire facias
issued for the defendant to shew cause, why the plaintiff should not
have execution de bonis propriis : to which scire facias the de-
fendant might appear, and plead plene administravit^. But now,
for the sake of expedition, the inquiry and scire facias are made out
in one writ, which is called a scire feri inquiry ; reciting the judg-
ment, ^er/yflc?V/s, and return of nulla bona, and after suggesting a
devastavit, commanding the sheriff to cause the debt or damages and
costs to be made of the goods of the testator or intestate, if &c.;
and if not, then, if it shall appear by inquisition', that the defendant
hath wasted the goods of the deceased, to give notice to the de-
fendant, to appear in court at the return of the writ, to shew cause
why the plaintiff ought not to have execution de bonis propriis^ :

a Bui. NL Pri. 169. g Cro. Eliz. 859. 887.

•> 6 Durnf. & East, 1. and see 2 Wms. ^ Id.U\. Ent. 667

Saund. 219. (2). > Append. Chap. XLHI. § 119.

c Ferryman & Wesiwood, cited iu 1 Vent. '' Thes. Brev. 236, &c. Lil. Ent. C66.

95. & 1 Sid, 448. Append. Chap. XLIII. § 84. And for the

^ Cro. Eliz. 887. leturn to a scire fieri inquiry, see Append.

e Thes. Brev. 116, 17. Chap. XLIII. § 118.

^Anie, 1064.


And there must be the same notice of executing such writ, as of a
common writ of inquiry". This method however, though preferable
to the old one, is seldom pursued at tliis day ; as the plaintiff is not
allowed any costs, unless the defendant aj)pear and plead, or there be
a joinder in demurrer : and therefore it is more usual, on the return
of nulla bona to the Jieri faciaa, to bring an action of debt on the
judgment, suggesting a devastavit.

The scire facias, upon a change of parties, is governed by the rule
laid down in the case of Penuyer v. Brace^, that where a new person
is to be benefited or charged by the execution of a judgment, there
ought to be a scire facias, to make him party to the judgment : but
where the execution is not beneficial or chargeable to a person who

Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 2) → online text (page 50 of 81)