Vogel and Another, Executors of Ann Vogel, Deceased v Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1847 |
| Date | 01 June 1847 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 25
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 5 D. & L. 114; 16 L. J. Ex. 309.
[60] vogel and another, Executors of Ann Vogel, Deceased v. thompson. June 1, 1847.-An affidavit in support of a rule absolute for judgment on a scire i facias at the suit of executors, must shew that probate has been granted to them. [S. C. 5 D. & L. 114; 16 L. J. Ex. 309.] Miller moved for a rule absolute for judgment upon a scire facias, on the sheriff's return of nulla bona, and in default of appearance. The affidavit in support of the application stated in substance, that Ann Vogel, deceased, recovered a judgment against the defendant for 451. 14s.-that she died, having duly made her last will and testament, whereby she appointed the plaintiffs her executors,-that a writ of seire facias issued to revive the judgment, which was lodged at the sheriff's office, ahd the sheriff returned nulla boua,-that the defendant had been served with a copy of the writ of scire facias, and with notice that, in default of appearance, judgment would be obtained thereon But the affidavit did not state that probate hjad been granted to the plaintiffs, and on that ground the Master thought it insufficient to warrant the entry of judgment. It was submitted, that though the affidavit would not be sufficient in a case in which the defendant had not been sUmmoned, yet as here the defendant had received notice of the proceedings, it was in His power to ascertain whether probate had been granted. But, Per...
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