Obryan and Ram
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1724 |
| Date | 01 January 1724 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 369
IN THE COURT OF KING'S BENCH
See S. C. 3 Mod. 186; 87 E. R. 119 (with note).
obryan and eam. [See S. C. 3 Mod. 186; 87 E. R. 119 (with note).] 3 Mod. 186. Scire facias against the husband after the wife's death, on a judgment against her, dum sola. Error out of Ireland, where there was a judgment against a feme sole, who married ; a scire facias issued against the husband and wife, and judgment against them on two nichils. The wife dies, a second scire facias is awarded against the husband, and judgment thereupon against him, and execution awarded ; the question is, if the husband is chargeable. This case was argued last year by Pollexfen and Finch for the plaintiff in error, and by Holt and Keeble for the defendant. Pro quer'. It is agreed, that if a feme sole is indebted by bond, and takes a husband, and an action is brought, and judgment had against the husband and wife, that this shall bind the husband, after the death of the wife. That debts or choses in action of the wife, shall go to the administrator, and not to the husband, but as administrator. Mo. 453. 1 Cro. 308. It is admitted, that a debt owing by the wife shall not charge the husband after the death of the wife. Eoll. 351, and then the first judgment against the wife, dum sola, shall not charge the husband ; and then the sole question is, whether [104] the second judgment in the scire facias against the husband and wife, shall charge the husband 1 It shall. Obj. Per Holt N. B. 122 G. Answ. The judgment in the annuity charges the successor there, and not the judgment in the scire facias. Obj. 2 Leon. 14. Answ. There debt lies on the recognizance, and 4 Leon. 186, requires the same answer : we have no express authorities in point, but only reasons. 1. The nature of a scire facias is to be consider'd on the Stat. W. 2, c. 45. 2 Inst. 469, the proceedings on a scire facias shew the same thing, for they recite the former judgment, and conclude juxta vim, &c. recuperationis prod. A scire facias is not an original, but a judicial writ, and therefore can't extend the judgment further than the former judgment. A writ of error suspends a scire facias, and if the first judgment be revers'd thereby, the whole proceedings on the scire facias are gone. 1 Roll. 777. 8 Co. 143, (otherwise if judgment be obtained in debt on the first judgment). Judgment can't be given against a man without an appearance, but two nichils don't make an...
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