Ensworth v. Davenport

Williams, J.

The only question in this case, is, whether ■■ scire facias founded upon a judgment between the same parties, will, when issued and served as an attachment, create w lien upon the property attached : in other words, whether :■ scire facias is a writ, on which process by attachment may issue, the original attachment law being limited to ordinan process.

The legislature, in May, 1814, enacted, that, “in writs ot scire facias, in all cases in which execution may be issued against the person and property of the defendant, on 1 ho judgment which may be rendered thereon, the process ma\ be by attachment of the estate or person of the defendant, to be proceeded with as to bail, and in all respects, as in ordinary cases.” This statute was re-enacted in 1821, in the same words, except that the words “in all cases’' were omitt'-d, probably merely for the sake of brevity.

In the case before us, the plaintiff had obtained a judgment and execution against Clark and Davenport, and levied it on the land in controversy ; but the levy was irregular and void ; and when this was ascertained, the plaintiff sued out a scire fa-cias, with a writ of attachment, and attached and set off ' >i: execution the same land. Between the time of the attachment and the time of the levy of the execution, however, the defendant obtained a mortgage of the same land from l'u debtor, and has thus acquired a right to the land, unless the al tachment creates a lien.

The defendant claims, that the statute extends only to cases where the judgment in the scire facias ascertains the debt nr duty, as scire facias against bail, or against a garnishee; that here is no judgment; that the plaintiff asks only for an exem-lion, and that only is ordered ⅜ so that this is not a case within the statute.

To determine this point correctly, we must examine the ture of the writ, and the intent, of the legislature.

' A scire facias is a judicial writ; but still it is an action, enner v. Evans, 1 Term Rep. 268. It may be pleaded to, an action. Grey v. Jones, 2 Wils. 251. Pulteney v. Townson, 2 Bla. Rep. 1227. 2 Tidd 1046. It may be released, by a release of all actions. Co. Litt. 290. An action of debt will lie upon a judgment obtained in a scire facias upon a recognizance. Loveless' cuse, 2 Leon. 14. And although it is doubtful whether a writ of error to the exchequer chamber will lie on a judgment rendered upon a scire facids, yet a writ of error will lie on such a judgment to the proper court. Obrian v. Ram, Comb. 103. S. C. 3 Mod. 186. Crow v. Maddock, Andrews 288. And in Johnson v. Harvey, 4 Mass. Rep. 484. Parsons, Ch. J. says: “ By a writ of error, an erroneous judgment on an original writ, or an erroneous award of execution on a judicial writ, may be corrected. Thus, error lies on a scire facias on a former judgment.” But a writ of error can only be brought on a judgment, or on an award in nature of a judgment. Co. Litt. 288. 2 Tidd 1066. Clason v. Shotwell, 12 Johns. Rep. 49. If then a writ of error would lie from the award of this execution, it must be because it is a judgment, or an award in nature of a judgment. ' And if a judgment is, as the great English Commentator says, “ the determination and sentence of the law, the consequence naturally and regularly following from the premises of law and fact, expressed by the words “ it is considered,” (3 Bla.

Comm. 395, 6.) it would seem as if this was technically a judgment. But whether it falls within that technical description or not, it seems to me to be within the intent and meaning of this statute. It is the policy of oar law, that all the property of a debtor shall be subject to the payment of his debts; and to* prevent his secreting his property, before execution can be obtained, a general provision is made, that a lien may be crea- : ted, not by the judgment, but by the service of the writ, That not extending to writs of this character, but only to ordinary process, the legislature extended it to writs of scire fa-das, in which execution may be issued against the person or property, on the judgment rendered thereon. In this case, the court in effect find, that a former judgment was rendered, as stated in the writ; that it is in force and unpaid ; and award execution to issue therefor. That this determination or sentence is a judgment, in the ordinary sense of the term, ■and therefore a judgment contemplated by the legislature in that statute, I cannot doubt. Any other construction would narrow the effect of a statute, which was intended to extend a beneficial remedy to cases not thus provided for, when the language does not necessarily require it.

I -would, therefore, advise the superior court, that judgment be rendered for the plaintiff.

. The other Judges were of the same opinion, except Peters, J,, who was not present when the case was decided.

Judgment for plaintiff.