5 Binn. 56 | Pa. | 1812
The plaintiff in error has rested his.
case on three points. 1. That the act of the 28th of March 1804, (the Hundred Dollar law) gave the justices of the peace no power to issue a sci.fa. 2. That if the act did give power to issue a sci.fa., this was a case in which such writ, was unnecessary. 3. That the judgment rendered on the set..
1. The reason assigned for supposing, that the act gives no authority to issue a sci. fa., is, that it gives express authority to issue such writ against special bail, but mentions no other case. This reason is not good. The act authorises the justice to render judgment and issue execution. And it must be understood, from the nature of the case, that it likewise authorises such process as is a necessary foundation for an execution. It never could have been intended to dispense with a sci. fa. previous to an execution, in all cases. This would leave the defendant at the mercy of the plaintiff. I consider the power of issuing a sci. fa., as appurtenant to the power of issuing an execution, and included in it, though not expressly mentioned.
2. Cases were cited to shew that where one plaintiff dies after judgment, the survivor may have an execution without a sci. fa. This is very true, because there is no new party to the execution; the death of the deceased plaintiff appears either by suggestion on the record, or by recital in the execution, and no person but the survivor is entitled to the execution. But that is not the present case. One of the plaintiffs died after the judgment; but that is not all. The survivor, who was a widow at the time of the judgment, took a husband afterwards. It became necessary therefore, to introduce her husband into the subsequent process. This is the criterion for ascertaining the necessity of a sci. fa. After her marriage, she ought not to have taken an execution in her own name. Of course she was put to a sci. fa., in order to introduce her husband.
3. In support of the third point it is said that the sci. fa. calls on the defendant to shew cause why an execution should not be issued against him, and consequently the plaintiff can be entitled to an execution for no more than the precise amount of the judgment. This argument might hold good in England, where interest on the judgment is not a matter of course. There the plaintiff may either bring an action of debt on the judgment, in which case he may recover interest by way of damages; or he may proceed by sci. fa., in which no damages are recoverable, and of course no interest. But we are to decide according to our own law.
I am of opinion, that the plaintiff in error has failed in all his points, and therefore the judgment should be affirmed.
It has been assigned for error, that the justice of the peace who rendered judgment in the cause, was not authorised by the law of the 28th of March 1804, to issue the scire facias to revive the judgment, that act giving no power to issue a scire facias except against special bail.
The facts which appear on the record are, that Richard Fulton and Isabella Wallace, as administrators of Richard Wallace, obtained judgment against the now plaintiffs in error, before the justice, on the 30th of September 1805, for 78 dollars and 42 cents; that Fulton died before the stay of execution was expired; and that Isabella afterwards intermarried with Alexander Wells, in whose names the scire facias issued, returnable on the 7th of July 1806. I apprehend this proceeding to be perfectly regular and correct. It is a settled principle that in no case where the parties to a judgment are changed, ought execution to be sued out by a different writ, without a scire facias. 2 Lord Ray. 808. It is inconsistent with common sense, that a judgment obtained by two or more persons, should warrant an execution in the names of others, not parties to the original proceedings, and where the change does not appear on the record. The remedy by scire facias post annum et diem in personal actions, was given by statute of Westm. 2. c. 45. At common law
It has been further assigned for error, that the judgment rendered on the scire facias included interest as well on the amount of the original judgment, as on the costs thereby recovered, which the law will not warrant; and that it was not competent to the attorney of the plaintiffs below to release the interest on the costs after the proceedings had been removed into the Court of Common Pleas by certiorari.
In modern times, courts of justice have been very liberal in granting amendments, where injustice is not thereby done. In Short v. Coffin, the Court of King’s Bench were all clearly of opinion, to amend a judgment against an executor de bonis propriis, by making it de bonis testatoris si, &?c. et de bonis propriis si non, ttie. And this was after a writ of error had been brought, in nullo est erratum pleaded, and an argument had in the Exchequer Chamber. 5 Burr. 2730. In Burrows v. Heysham, 1 Dall. 133., a judgment upon a scire facias against special bail, was removed by writ of etror into this court. Upon the issuing of a certiorari to bring up the record, the plaintiffs moved in the Common Pleas to amend the scire facias by the record, substituting September 1782, for December 1781; and the same was allowed by the court, who thought it proper upon the liberal principles of modern practice, and indeed for the honour of common sense. When the damages found by the jury, exceeded those laid in the declaration, this court permitted a remittitur to be entered for the excess, after a writ of error to the Common Pleas of Berks county. Furry v. Stone. September Term 1792. That amendments would be allowed after error brought, was also established in Prevost v. Nicholls, in March Term 1808. And in Douglass et al. v. Bearn's executors, at Sunbury, July Term 1809, it was declared by the Chief Justice, that after error brought, the court where the record remained, might order an amendment on proper grounds.
As to the recovery of interest on the amount of the first judgment under a scire facias, I admit that this cannot be done by the English law. The formal entry of judgment there on the scire facias is, quod fiat executio of the debt originally recovered. Lilly's Ent. 340. 398. 522. Damages cannot be given in a scire facias. 1 Roll. Abr. 574. pl. 6. In a
However, an act of assembly of this government, made as far back as 1700, has made an important alteration in the English law. The second section thereof provides, “ that “ lawful interest shall be allowed to the creditor for the “ sum or value he obtained judgment for, from the time the “ said judgment was obtained, till the time of sale, or till “ satisfaction be made.” 1 Dall. St. Laws 13. I take the practice under this law to have been, both before and since the American revolution, to ascertain the real debt at the time of the judgment entered, and to calculate interest thereón as a new principal. So it was upon an obligation or note carrying interest, and on book debts, which, unless secured by special contract, were formerly supposed not to carry interest until judgment. Such also was the practice during the revolutionary war, when executions were directed to be issued for instalments of debts in a manner provided for by law. Since the argument, I have conversed with most of the elder gentlemen of the profession in the city, and their recollection accords with what I have stated to be the practice, as well upon writs of scire facias brought to revive judgments, as in actions of debt founded on them. In Fitzgerald v. Caldwell's Exrs., which was a scire facias brought to enforce a judgment, Shippen, Chief Justice, after repeating the above provision of the act of 1700 says, “ In-“ terest is therefore, generally speaking, a legal incident of “ every judgment.” 4 Dali. 252.
It is true, that judgments amongst us, unless grounded ®n verdicts or the reports of referees, are seldom rendered for a specified sum. But if the judgment given in a scire facias is considered as given for the mere amount of the first judgment, it necessarily follows that an}? debtor may defeat the intentions of the legislature in their law of 1700.. Because he may tender the sum for which the original
Judgment affirmed.