Ogilsby v. Lee

The opinion of the Court was delivered by Sergeant, J. The 35th section of the Act of 16th June 1836 makes it the duty of the officer charged with the execution of the writ of attachment to serve a copy thereof on the defendant in the judgment, as well as others named in it, in the manner provided for the service of a writ of summons in a personal action. To this summons it is -clear that the defendant may appear and become a party, and plead payment, or any other plea which he might have taken advantage of, upon a,scire facias post annum et diem. To require a previous scire facias to issue after the lapse of a year and a day before a writ of attachment could be taken out, would therefore seem to be superfluous, not tending to secure any purposes of justice, but leading to unnecessary expense and delay. Every object of a scire facias post annum et diem being provided for in the writ of attachment itself, it would seem that the provisions for that writ must be limited to the case of an ordinary execution issued, in which there is no summons of the defendant, nor day in court given. Judgment reversed, and venire facias de novo awarded.