Anonymous (1792) 1 Com 31
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 92 E.R. 943
COURT OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
[31] de term. sanct. mich. 9 will. III. in B. R. case 21. anonymous. A scire facias was brought by baron and feme upon a judgment recovered by the feme while sole, and after execution awarded the husband dies, a right is attached in the wife. 1 Vern. 396. 3 Atk. 21. 1 Com. Dig. 557. Holt 101. Skin. 682, S. C. 1 Eq. Ca. Abr. 68. 2 Freem. 172. 1 Ch. Rep. 235. 1 Ch. Gas. 27, and the cases there cited. The case was this; A feme sole recovered and had judgment in debt upon a bond, and afterwards married; and the husband and wife sue out a scire facias upon this judgment, and have execution awarded; but before execution had the baron dies, 944 DB TERM. SANCT. MICH. 9 WILL. III. ICOMTNS.SZ. and his executors sue out execution. Sir Barth. Shower urged, that the scire facias brought by the executor of the baron lieth not, for the debt was not vested in the husband by the award of execution on the scire facias brought by him and his wife. If a man takes a wife to whom J. S. is bound in an obligation, and the husband and wife sue the obligor and get judgment, and the wife dies, the debt is vested in the husband; for that, which was before a chose in action, transit in rem judicatam, &c. and is of another nature from what it was before the coverture; but a chose in action shall never vest in the husband by the coverture, if he does not gain the actual possession of it, or at least alters it so that it be no longer a chose in action : (a)1 and it is for this reason that, where husband and wife have judgment upon a bond made to the wife dura sola, the chose in action is altered, and no action lieth afterwards upon the bond, but debt must be brought upon the judgment; but where husband and wife have execution awarded in scire facias upon a judgment, they may afterwards bring debt upon the same judgment, but they never can have debt on the judgment in scire facias, the scire facias [32] is no more than a writ of execution; for at common law, if the plaintiff did not sue out execution within the year, he could not do it afterwards, but ought to bring his action of debt upon the judgment. And therefore the Statute of Westminster 2, cap. 18, gives the scire facias, which is but a writ to have execution after the year, if the party had nothing to say to the contrary; and for this reason, if execution be awarded in the scire facias, it does not alter the nature of the...
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