McLellan v. Lunt

After a continuance, for advisement, the opinion of the Court was drawn up by Shepley J. It is provided by stat. ch. 60, sec. 3, that “ if the party shall neglect for the space of one year next after obtaining judgment to take out his execution, or shall not within one year next after his execution shall be returned not satisfied, take out his alias or jpluries, he shall sue out his writ of scire facias against the adverse party to shew cause, if any he hath, why execution ought not to be done; and upon his not shewing sufficient cause, the Court shall award execution for what remaineth with additional costs.” And ch. 52, sec. 26, provides, “ that no executor or administrator shall be held to answer to any suit, that shall be commenced against him in that capacity, unless the same shall be commenced within the term of four years from the time of his accepting that trust,” if he perform certain duties required of him. This is a scire facias upon the same judgment upon which the action of debt was brought, reported 2 Fairf. 150, where it was decided, that tire action was barred by the statute. It is now insisted, that scire facias can be maintained after the four years, because it is not a new suit, but is a continuation merely of the former suit. In the case of Wright v. Nutt, 1 Term. R. 388, it was held not to be a new action, but a continuation of a former one. And in the case of Obrian v. Ram, 3 Mod. 187, it was held, that a scire facias was suspended by a writ of error on [257] the original judgment, and that a reversal of that judgment operated as a reversal of the judgment of the scire facias. Bane says, “ It is sometimes a new action, and sometimes a mere continuation of a former action ; on a judgment it is always a continuation ch. 190, art. ], sec. 3. In the case of Wolf v. Pounsford, 4 Ham. R. 397, it is said, “ a scire facias to revive a judgment, is only a continuation of a former suit, and it is not an original proceeding.” And in 15 Mass. R. 316, it was decided, that a scire facias against bail was not a new suit. On the contrary, there are cases where scire facias has been held to be a now suit, requiring a new warrant of attorney to commence it. Cro. Eliz. 177, Herd v. Burstowe; 2 Ld. Raym. 1252, Atwood v. Burr; 6 Johns. R. 106, Gonnigal v. Smith. Without undertaking to reconcile these differences, or to decide whether it be a new action, or an action in continuation of a former action, it is suflicienl for the present purpose to say, that it is regarded by all as a suit or action. Littleton, sec. 505, says, it may be well said to be an action; and in sec. 506, that a release of all actions is a good plea in bar. Lord Coke says, although it be a judicial writ, yet because the defendant may plead to it, it is accounted in law to he an action; and that a release of actions, or a release of suits, is a, good bar. Co. Lit. 291, a. To the same effect are William’s notes on Saunders, vol. 2, 6, note (1) ; idem, 72, note (4). The act of the 17 Geo. 3, ch. 26, provided, “ that before any execution shall be sued out, or action brought on any such judgment already entered, a memorial of the deed, bond, or instrument,” &c., “ shall he enrolled in chancery ;” and a scire facias issued to revive a judgment, entered before the act for securing the payment of an annuity, was set aside for want of such a memorial, because it was an action upon the judgment, and within the statute. 1 Term. R. 267, Fenner v. Evans. So to a scire facias to have execution on a judgment the defendant pleaded, that the plaintiff ought not to have his action, instead of ought not to have his execution, and the plea was adjudged good because scire facias is an action. 2 Wil. 251, Grey v. Jones. A suit in law is defined by Jacobs to be all one with an action; and an action to be the form of a suit given by law. While Coke [258] notices a diversity, and concludes, that a release of all suits is more extensive, than a release of all actions. Co. Lit. 291, a. The term suit seems to have been employed in some of the statutes of limitation, as comprehending also process in admiralty, in equity, and in the ecclesiastical courts. 4 and 5 Anne, ch. 16, sec. 17 ; 53 Geo. 3, ch. 127, sec. 5. The legislature must be supposed to employ language relating to legal proceedings, in its well known legal acceptation; and there can be no doubt that scire facias has been regarded in law as an action or suit. It is insisted, that die statute gives an absolute right, the language being, that he shall sue out his writ of scire facias. But the statute contemplates, that the defendant may shew cause against it, and that upon his not shewing sufficient cause, the Court should award execution. The statute of limitations may be shewn as a good cause, as well as any other legal bar or discharge. It is said to be the duty of the administrator to satisfy a judgment against the estate, and that a neglect to do so subjects him to a suit, but then he is subjected to such suit only in favor of those injured, who having taken all previous steps are in a condition to maintain it. The presumption of law, after such a lapse of time, is, that the judgment has been executed, satisfied, or released; and upon this presumption the legislature has established a perpetual bar, which ' the Court cannot disregard. Plaintiff nonsuit, and costs for defendant.