Jeffreson, Executor of Jeffreson, against Morton, and Dawson, and Others, Tertenants of Yarway
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 540
COURT OF KING'S BENCH
[6] 2. jeffreson, executor of jeffreson, against morton, and dawbon, and others, tertenants of yarway. Easter, 21 Car. II. Rol. 291, or 201. Scire facias by an executor upon a recognisance in Chancery against the tertenants, vendees of the conusor. England, to wit.-Be it remembered, that Sir Orlando Bridgman, Bart. Keeper of the Great Seal of our said lord the now King of England, &c. on Monday in three weeka of Easter, in the same term, before our said lord the King at Westminster, with his own hand delivered here into the Court of our said lord the King, a certain record (1) (1) Though the plaintiff should die within a year after he has obtained judgment, his personal representative cannot have execution against the defendant without a scire facias; Fitz. Execution, 143, where scire facias seems to be inserted by mistake instead of fieri facias. 15 H. 7, 16 b. 1 Rol. Abr. 900 (P.), pi. 1, 2; nor, in case of the death, of the defendant within that period, can the plaintiff have an elegit under Stat. Westm. 2, c. 18, against his lands in the hands of his heir, or terre-tenants, or generally any other execution, without a scire facias against his heir and terre-tenants, or personal representative, although he may in some cases have & fieri facias against his goods in the hands of his executor, as we have already seen. See 1 Saund. 219, Wheatley v. Lane. So where the conusee dies within a year, his executor cannot have an elegit upon a recognisance at common law without a scire facias; nor, if the conusor dies within that time, can the conusee have an elegit against his heir, or 2 WMS. SAUND. 8. HIL. 21 AND 22 CAR. II. REGIS 541 had before our said lord the King in his Chancery at Westminster, in the county of Middlesex, in these words: Pleas before our lord the now King in his Chancery at Westminster, in the county of Middlesex, of the term of the Holy Trinity, in the 20th year of the reign of our Lord Charles the 2d, by the grace of God, of England, Scotland, France, and Ireland, King, defender of the faith, &c. Middlesex, to wit. Our lord the King has sent to the sheriff of the county of Middlesex his writ close in these words, to wit: Charles the 2d, by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. to the Sheriff of Middlesex greeting : whereas on the 16th day of August, in the 12th year of our reign, Robert Yarway, citizen and merchant-tailor of London, appearing personally before us in our Chancery, acknowledged himself to owe to John Jeffreson, of High Holborn, in your county, Esq. 40001. of lawful money of England, which he ought to have paid him on the Feast of St. Bartholomew the Apostle then next following, as appears to us by an inspection of the rolls of our said Chancery, and did not pay the same to the said terre-tenants, without such writ; F. N. B. 597, D.; the rule being, that where a new person, who was not a party to a judgment or recognisance, derives a benefit by, or becomes chargeable to, the execution, there must be a scire facias to make him a party to the judgment, or recognisance. 1 Ld. Baym. 245, Penoyer v. Brace. S. C. 1 Salk. 319,320. 2 Ld. Eaym. 768, Queen v. Ford. 2 List. 471. At the common law, if the plaintiff did not sue out execution within a year and a day after judgment in personal actions, or recognisance acknowledged, he could not have a scire faciaa, but the plaintiff or conusee was obliged to bring an action of debt on the judgment or recognisance. This being a tedious process, the Stat. Westm. 2 (13 Edw. I), c. 45, gives a scirefacias upon a judgment in personal actions, and upon, a recognisance, after a year and a day ; but a scirefacias lay at the common law after that time on a judgment in a real action ; 2 Inst. 469. Co. Litt. 290 b. 291; and Lord Holt seems to have been of opinion, that a scire facias might always have been sued out upon a judgment in personal actions after a year and a day. 1 Salk. 258, Withers v. Harris.(a) It is called a scire facias from these essential words in the writ, "quod scire facias prefat T. (the defendant) quod sit coram &c. ostensurus si quid pro se habeat aut dicere sciat quare, &c.:" whence it appears that the defendant or conusor is to be warned to plead in bar of the execution; and therefore a release of all executions is held to be a good plea. It is also considered in the nature of an action, and therefore a release of all actions is a bar to it; for whenever the defendant may plead to any writ, whether original, or judicial as this writ is, it is in law an action ; Co. Litt. 290 b. 291. 3 Mod. 189, Obrian v. Ram; and the plea may pray judgment if the plaintiff ought to have or maintain his action. 2 Wils. 251, Grey v. Jones. '2 Black. 1227, Pulteney v. Tawnsan. 1 T. E. 268, Fenner v. Evans. 2 T. E. 46, Winter v. Kretchman. See also Skin. 682, Woodyeer v. Gresham. If execution be sued out after the year and day without a scirefacias, it is not void, but voidable only by writ of error. 3 Lev. 404, Patrick v. Johnson. 1 Salk. 261, Howard v. Pitt, in which Mussel's case, 4 Leon. 197, to the contrary is denied.(b) If a recognisance be acknowledged in Chancery, that is, in the ordinary legal Court there, it may hold plea of a scirefacias to have execution ; but if issue be joined, or there be a demurrer to part, and issue on the residue, the Chancellor delivers the whole record to the Court of K. B. but not to any other, and judgment is given there upon the demurrer as well as upon the issue. Latch, 3, Blaxton's case. 1 Eq. Gas. Abr. 128. And it is not necessary the issue should be tried at Bar; it may be tried at Nisi Prius. Cro. Car. 313, Eyres v. Taunton. From the words " with his own hand," it seems, tha Chancellor formerly used to deliver the record to the Court of K. B. himself; but the present course is to deliver it by the clerk of the Petty Bag; for what is done by his officer may be said to be with the proper hand of the Chancellor. 1 Eq. Gas. Abr. 129.(c) (a) 2 Salk. 600, S. C. 2 Ld. Raym. 806, S. C. [See the judgment in Hiscocks v. Kemp, 3 A. & E. 679, 680. 5 Nev. & M. 113, S. C.] (b) [And it was held accordingly in Blanchenay v. Hurt. Q. B., E. T. 1843, over ruling Mortimer v. Piggott. 4 A. & E. 363, note. S. C. 2 Dowl. 615.] (c) See further as to scire facias, post, 71 et seq. and the notes there. 542 JEFFRESON V. MORTON AND OTHERS 2 WMS. BAHND. 7. John in his life-time, or, after the death of him the said John, to John Jeffreson, gent, executor of the last will and testament of the said John Jeffreson deceased, as it is said, we command you that, by good and lawful men of your bailiwick, you make known to the said Robert, that he be before ua in our said Chancery in three weeks from the day of the Holy Trinity next coming wheresoever it shall then be, to shew if he have or can aay any thing for himself why the aaid money (2) ought not to be levied of his lands and chattels, and delivered to the said executor according to the force, form, and effect of tho said recognizance, and that you have there the names of those by whom you shall so cause it to be made known to him, and thia writ. Witness oursalf at Westminster, the 26th day of May, in the 20th year of our reign. At which said three weeks of the Holy Trinity, before our said lord the now King in his said Chancery here, to wit, at Westminster aforesaid, cornea the aaid John Jeffresou, the now plaintiff, by John Wilkinson, his attorney, and the Sheriff of the county of Middlesex aforesaid, to wit, Sir Dennis Gauden, Knt. and Sir Thomas Davies, Knt. now here returns that the said Robert is dead ; whereupon our lord the now King sent his other writ close directed to the Sheriff of Middlesex aforesaid, in these words: Charlea the 2d, by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. to the Sheriff of Middlesex greeting: whereas on the 16th day of August, in the 12th year of our reign, Robert Yarway, citizen and merchant-tailor of London, personally appearing before ua in our Chancery, acknowledged himself to [7] owe to John Jeffreson, of High Holborn, in your county, Esq. 40001. of lawful money of England, which he ought to have paid to him on the Feast of St. Bartholomew the Apostle then next following, as appeared to us by inspection of the rolls of our said Chancery, and had not paid the same to the said John in his life-time, or, after the death of him the said John, to John Jeffreson, gent, executor of the last will and testament of the aaid John Jeffreson deceased, as it was said, we lately commanded you by our writ that, by good and lawful men of your bailiwick, you should make known to the said Robert Yarway, that he should be before us in our said Chancery, at a certain day now past, wheresoever it should then be, to shew if he had or could say any thing for himself why the said money ought not to be levied of his lands and chattels, and delivered to the said executor according to the force, form, and effect of the said recognizance; and that you should have there the names of those by whom you should ao cauae it to be made known to him, together with our said writ; at which day, in our said writ contained, you returned to us in our said Chancery that the said Robert is dead, as by the return thereof remaining of record on the (3) files of our said Chancery more fully appears ; therefore we command you that, by good and lawful men of your bailiwick, you make known to the heir (4) of the said Robert, and alao to the tenants of the lands and tenements (2) The scire facias ought to conclude quart ewcutio fieri non debet, and if the words "iwii debet" are omitted, it is said, the writ is bad and not amendable. 2 Lutw. 1281, 1282, Baxter v. Peach. 3 Keb. 190, Manel and Coltloe's case. If the defendant dies after...
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Bynner against The Queen
...in this instance only, but the general form in other pre-[552]-cedents. (See Bex v. Stone (Trem. PI. C. 652); see also Jfjj'resm v. Morton (2 Saund. 6, 23).) In this latter case the great question between the parties was, whether the record itself bad been properly sent down from the Court ......