31 MENT ON THE lies against the survivor alone reciting the death, to which ON A JUDGhe cannot plead that the heir of the deceased has assets by INTROPNEW descent, and pray judgment if he ought to be charged alone.32 PARTIES. If one or more of several plaintiffs die after judgment, the survivor alone may have a scire facias. And where a bond is given to a husband and wife, conditioned for her maintenance during their joint and separate lives, on which they recover a joint judgment; on the death of the husband, his interest survives to the wife, and after her decease, a scire facias may be brought by her executors or administrators. It seems that if a person be convicted of felony, and sentenced to the state prison for life, being civiliter mortuus, a scire facias cannot be issued to such convict, but it must be to his representatives.34 Executors and adminis sci. fa. on recovered by executors, &c. At common law, an administrator de bonis non, claiming by trators have title paramount, could not have had a scire facias, or otherwise judgments proceeded on a judgment recovered by an executor or admi-preceding nistrator; but it was otherwise in the case of a judgment recovered against an executor or administrator.35 This was afterwards remedied by a statute, which expressly gave a scire facias in such a case to the administrator.86 This provision has not been re-enacted in the revised statutes; but the following provisions place subsequent administrators upon the same footing, as respects judgments recovered by preceding executors and administrators, with those executors or administrators themselves. "Any subsequent executors or administrators shall have execution upon any judgment that may have been recovered by any person who preceded them in the administration of the same estate, within one year from the time of the docketing of such judgment, without reviving the same by scire facias, and T. Raym. Rep. 26. 1 Lev. Rep. 30. Carth. Rep. 106. 32 2 Saund. Rep. 51. n. 4. 33 10 John. Rep. 49. 34 4 John. Ch. Rep. 228. 35 Tidd. Prac. 1172. W. Jon. Rep. 214. Cro. Car. 167. S. C. 36 1 R. L. 312. MENT ON THE ON A JUDG- Without any other proceeding to give notice to the defendant in such judgment."57 INTRODUC TION OF NEW Heir or devi see when to be affected by the judg ment must be made a party to the sic. fa. Terre-ten ants when to be made parties. "When administration of the effects of a deceased person, which shall have been left unadministered by any previous executor or administrator of the same estate, shall be granted to any person, such person may bring a writ of error upon any judgment obtained against such previous executor or administrator of the same estate, or against the original testator or intestate; and shall defend any writ of error brought upon any such judgment; and shall have the same remedies in the prosecution or defence of any action, by or against such previous executors or administrators, and for the collection and enforcing of any judgment obtained by them, as they would have by law."58 Whenever the heir or devisee is the person to be affected by the execution of a judgment obtained by or against his ancestor, he, and not the personal representatives of the deceased,39 must be made a party to the scire facias.40 If land and damages are both recovered by the judgment, it is said that the heir and exécutor shall both join in the scire facias, and the heir have execution as to the land, and the executor as to the damages..41 In cases of the revival of judgments against lands, if there be terre-tenants, they may be made parties to the scire facias together with the heir or devisee, and it is usual to join them;42 but the writ may be sued out against the heir or 37 2 R. St. 449. P. 3. Ch. 8. T. 3. s. 13. 38 Ib. s. 18. 39 See 2 R. St. 449. P. 3. Ch. 8. T. 3. s. 12. 4o 2 Inst. 469. 3 Co. Rep. 12. 2 Salk. Rep. 600. pl. 9. Ld. Raym. Rep. 806. Salk. Rep. 258. pl. 11. 7 Mod. Rep. 50. 64. 4 Mod. Rep. 248. Dyers' Rep. 81. Co. Lit. 103. 290. Cro. Jac. 186. 6 Bac. Abr. "Scire Facias" C. 5. 41 2 Arch. Prac. 89. 6 Bac. Abr. "Scire Facias" C.5. 2 Roll: Abr. 889. 42 F. N. B. 597. a. Cro. Eliz. 896. Cro. Car. 295. 2 Salk. Rep. 598. 2 Arch. Prac. 90. devisee without naming the terre-tenants, devisee cannot plead the nonjoinder.44 and the heir or But if sued out against the terre-tenants, and all the heirs or devisees be not joined, the terre-tenants may plead it in abatement.45 Where the scire facias is against the terre-tenants, all persons who are joint tenants, or tenants in common with them, of the same lands, must be joined, and also all other tenants of other lands in the same county equally chargeable with the judgment sought to be revived.46 Where there are several heirs or devisees, they must all be joined, whether the terre-tenants be named or not.47 ON A JUDG MENT ON THE INTRODUC TION OF NEW brought al occupant, but It is also provided by statute that "Writs of scire facias to May be revive a judgment or recovery against tenants of any real es- against actutate, may be brought against the persons by whom such estate shall be actually occupied, claiming any interest therein, whether in fee, for life or for years." "But where any judgment or recovery shall be revived as against any real estate, by writ of scire facias, the right of any person therein, not made a party to such writ, shall not be impaired or affected by such revival, no one to be unless he claim title from the tenant of such real estate, who was duly made a party thereto."48 affected who does not claim title from a party. step necessa against Where judgment is obtained and the defendant dies before Previous execution, a scire facias will not lie against the heirs, devisees ry to sci. fa. and terre-tenants, until a scire facias has been issued against heirs, &c. the personal representatives of the deceased, and returned nihil.49 Where a judgment is revived against the original defendant himself, it is unnecessary to make the terre-tenants parties.50 Where there are several defendants, and one of 43 2 Arch. Prac. 90. 3 John. Rep. 87. 16 John. Rep. 537. 13 John Rep. 537. 46 Ib. See 20 John. Rep. 106. 48 2 R. St. 577. P. 3. Ch. 9. T. 44 2 R. St. 577. P. 3. Ch. 9. T. 2. s. 4. 5. 2. s. 7. 45 2 R. St. 577. P. 3. Ch. 9. T. 2. s. 6. 2 Arch. Prac. 90. 13 John. Rep 86. 49 2 Sand. Rep. 7. n. 4. 8. n. 9. 72. o. p. Carth. Rep. 107. 50 11 John. Rep. 513. MENT ON THE INTRODUC TION OF NEW ON A JUDG them dies before execution, since the charge upon the judgment survives as to the personalty, though not as to the realty, the plaintiff may have a scire facias, framed upon the special matter, viz. against the survivor, to show why the plaintiff should not have execution against him of his goods and chattels, and of a moiety of his lands, and against the heir and terre-tenants of the deceased, to show why the plaintiff should not have execution of a moiety of the deceased's lands without mentioning any goods.52 OF SCIRE FACIAS AS A PUBLIC REMEDY. Public reme dy, by statute for the vacating of letters patent, and acts of incorporation; The revised statutes contain the following provisions for the vacating of letters patent and acts of incorporation. "A writ of scire facias may also be issued out of the supreme court of this state, in behalf of the people of this state, upon the relation of the attorney general, or of any private person, for the purpose of vacating and annulling any letters patent granted by the people of this state, in the following cases: 1. Where it shall be alleged that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued, or made with his consent or knowledge: 2. Where it shall be alleged that such letters patent were issued through mistake, and in ignorance of some material fact: 3. Where the patentee or those lawfully claiming under him, shall have done or omitted any act, in violation of the terms and conditions upon which such letters patent were granted; or shall, by any other means, have forfeited the interest acquired under the same.' 9153 "A writ of scire facias may also be issued out of the same court, upon the relation of the attorney general, against any 51 2 Saund. Rep. 51. (4.) Tidd. Prac. 1174. 52 Carth. Rep. 105. 2 Saund. Rep. 51. (4.) 72. p. 53 2 R. St. 578. P. 3. Ch. 9. T. 2. s. 12. corporation created or renewed by any act of the legislature, for the purpose of vacating and annulling such act, on the ground that the same was passed upon some fraudulent suggestion or concealment of a material fact, made by the persons incorporated by such act, or made with their consent or knowledge. But no such writ shall be issued except where the legislature shall specially direct the attorney general to prosecute the same."'54 AS A PUBLIC matters to be "In every writ of scire facias issued under either of the two particular last preceding sections, the particular matters and circum- set forth. stances upon which the same are founded, shall be set forth with such convenient certainty, that the defendants may be fully apprised of the general nature thereof. And if the matters duly alleged in such writ, shall be found for the people, or the defendants shall make default, judgment shall be ren- Judgment. dered that the letters patent, or act of incorporation specified in the writ, as the case may be, be vacated and annulled."'55 SECTION IV. OF REMEDIES AT LAW WHICH ARE NOT CALLED ACTIONS. The remedies of which we propose to treat in this section, are, attachments against vessels; attachments against foreign corporations; against absent or absconding debtors; against debtors confined for crimes; arbitrations; informations in the nature of quo-warranto; mandamus; prohibition; proceedings for the admeasurement of dower; and writs of error. OF PROCEEDINGS FOR THE COLLECTION OF DEMANDS AGAINST SHIPS AND VESSELS. The law for the advantage of commerce, and other reasons too obvious to be mentioned, has made many debts a lien upon the vessels about which they were contracted. 54 2 R. St. 579. P. 3. Ch. 9. T. 55 Ib. P. 3. Ch. 9. T. 2. s. 14. 2. s. 13. |