Richardson v. McDougall

By the Court,

Cowen, J.

The proceedings of the plaintiff after the rule to plead on the sci. fa. as far as he went, were not regular. No declaration was necessary ; the sci. fa. was itself a declaration, 2 R. S. 480, § 22, 2d ed.; but notice should have been served on the defendant's attorney of the rule to plead, he having given notice of retainer before the default for not pleading was entered. Id. 480, § 18. Rule 19. No rule for judgment was taken, nor any judgment roll made out. The plaintiff does not pretend that the proceedings on the sci. fa. can help him, but he claims the right to take an execution of course on the ground that he had before issued one which was partially executed, but failed in complete effect. If this be so, the mere pendency of a sci- fa. ought not to prejudice the right It is said the fi. fa. does not refer to and profess to be founded on a judgment in the suit by sci. fa. That would, it is true, be necessary, had judgment been taken, although the sci. fa. were entirely supererogatory. This was held in Davis v. Norton, 1 Bing. 133, and 1 Rol. Abr. 900. Execution (Q.), is no more than that

It is not denied that the execution might well have issued had it not been for the sci. fa. Indeed this is admitted. No point is made against the form of the execution, except that it should not have issued on the original judgment. One fi-fa. having before issued, a second was regular without any sci. fa. 2 Dunl. 1085, and the authorities there cited. Perhaps the second fi. fa. should have been special, reciting a partial payment of the first; but that is not mooted, and we might, if it had been, allow the plaintiff to amend.

The motion to set aside the default and subsequent proceedings must be granted ; but the motion to set aside the fifa. is denied. No costs are given on either side.