Bank of the State v. Hooks

By Mr. Justice Thornton :

Upon a judgment by default against the defendants'' in error, as administrators of William W. Parham,-dec. in the Circuit Court of Tuskalcosa, and the return oí nidia bona de bonis tesiatcris, to a fieri facias issued thereon, the plaintiff issued a scire facias, citing- the defendants to shew cause why execution de bonis-propriis should not issue, to levy the amount of the said judgment. On the motion of the defendants in error, who were the defendants below, the writ of scire facias was quashed, and judgment-rendered for costs against the plaintiff, from which a writ of error ' is prosecuted, and the rendering of the said judgment is now here assigned for error.

Noquestion concerning the revivor of judgments by sci. fa. is presented for our consideration on this record. If it were, I am induced to think, that the dis--tinction, which, according to the general tenor of authority, existed at the Common Lawq between real *275and personal actions, lias been as entirely obviated by our statutory enactments, as it has been in England. In ovary case where tho necessity of reviving exists, the mode or sci. fa. is authorised to be pursued.a

a Aik. Dig.270.

The only enquiry involved here, is, whether in the case of an existing judgment by default against administrators, a scire facias is a proper remedy to obtain satisfaction, out of their own goods and chattels, upon the return of nulla bona, to’ a fi. fa. de bonis tes-tatoris. \Yo have no statute upon this subject: nor can I discover that there is any, originating, or regulating tho course of practice, as sometimes pursued in the English Courts, by scire facias, in lieu of the more usual one, by the action of debt on the judgment, suggesting a devastavit.

The proceeding in the case before us, is not in accordance with any practice, which at any time, has prevailed either in tho Common Pleas, or Court of King’s Bench in England. The history of this matter, as stated in 2d Crompton's Practice, 108, which contains a methodical arrangement of the rales of practice in both those Courts, is this : “ Formerly the method was, upon obtaining judgment by default against an executor or administrator, (which would reach only the goods of tho testator or intestate) and nidia bona returned to a fi. fa. sued out on such judgment, to issue out a writ to enquire, whether the defendant had wasted any cf the effects of the deceased ; and if a devastavit was found by the inquisition, and returned thereto, then for the plaintiff to proceed by scire facias, for the defendant to shew cause, why the plaintiff should not have judgment de bonis propriis: to which sci. fa. tho executor, or administrator, could appear, and pisadplene administra-vit. But .now, the fieri facias enquiry, and scire fd-*276cias, are incorporated, and made out in one writ, for expedition. However, this method, though much better than the old one, is seldom pursued at this day, &c. But the way is, to bring an action of debt on the judgment, suggesting a devastavit.”a

JNow, m the case before us, there is no enquiry, nor is there any return of a waste, by the sheriff, on the Ji. fa. So, that it is not even presented for our consideration, whether we would recognise and sustain, either the ancient or modern practice as above described, in lieu of the action of debt, suggesting a devastavit; for the case pursues neither course. So that, whatever we might decide upon a proper case, as to the binding force of this remedy, in either form of it, we cannot support the course here pursued by sci. fa. alone, without any thing but the return of nulla bona, as such was not allowed in the English Courts, by the authority of which, we are urged, as precedents of practice, to tolerate this procedure.

Let the judgment be affirmed.

See also, 1st Saund. 219,-note G.