Woodyeer and Gresham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1728 |
| Date | 01 January 1728 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 303
IN THE COURT OF KING'S BENCH
[682] 2. WOODYEER AND GRESHAM. In a writ of error upon a judgment in C. B. in a scire facias ; the case was, a feme sole recovered in C. B. and took husband, and after they joined in a scire facias to have execution, and had judgment in the scire facias; the wife died, and the husband sued execution, without taking out letters of administration; and it was objected, that he ought not to have execution in his own right, but as administrator to the wife; the reason that the husband shall have execution of a judgment upon a bond made to his wife dum sola is, because by the judgment transit in rem judicatam; but in this case there is no alteration by the judgment in the scire facias, for it is but an award of execution, and both are but one judgment; a scire facias did not lie at common law, 2 Inst. 469, and it is but a method to have execution, the which heretofore he could uot have after the year, but was put to his original upon the judgment; and therefore a scire facias has supplied this defect, and is but a continuance of the right, and does not alter the debt, or give a better right, but only entitles him to 304 TERM. MICH. 9 WILL. 3. R. B. SKINWBB, 683. have execution upon the former right, after the year incurred, where he could not have it before the statute. If the feme had died within the year, her administrator shall have execution, and not the husband ; and it not being sued during the coverture, it cannot be such after her death, and the judgment remains of such force ut supra, and no new right accrues; if the recovery upon the debt had been during the coverture, it would have survived, but now it will not, 1 Inst. 351, and nothing which a feme has en auter...
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Jeffreson, Executor of Jeffreson, against Morton, and Dawson, and Others, Tertenants of Yarway
...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.......
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