Boggs v. Bandy, 2 Stew. 459

Boggs v. Bandy

2 Stew. 459 | Ala. | 1830

By JUDGE WHITE.

None of the assignments of error in this case are sustained by the record, except those which question the legality of proceeding by scire facias, upon a forfeited injunction bond. By the act of Assembly of the 12th January, 1826, it is provided, “ that all and every bond or bonds executed for the purpose of obtaining an injunction or injunctions, shall, on the dissolution of said injunction or injunctions, have the force and effect of ajudgment; and it shall be lawful for the party or parties, whose judgment may have been injoined, to take out execution against all the obligors, in the bond or bonds, for the amount of the judgment which shall have been injoined, together with lawful interest thereon; and also the costs incurred in and about the said Chancery proceedings. ” From the provisions of this law, it is manifest the plaintiff below might have had his execution without the aid of a scire facias. But the issuance of the writ, by notifying the defendant, operated to his benefit, and cannot be complained of by him; and although unnecessary, we conceive it was not erroneous to proceed in that manner.

The judgment of the Court below, must therefore be affirmed.

By JUDGE COLLIER.

With due deference, the opinion of the Court, in my apprehension, is not sustainable either upon principle or authority. And whether we consider the case upon the assumption, that the act of the 12th January, 1826, does not influence the remedy upon injunction bonds executed previous to its passage, or up*461on the hypothesis, that the act is operative upon bonds of an anterior date, the legal conclusion must he the same.

It is doubted in some of the old books of authority, whether a scire facias lay at common law; but Lord Coke says the doubt arose from a neglect to distinguish between personal and real actions. In the former, it was given by the statute of Westminster 2. 13 Edward 1, statute 1, chapter 45. In-the latter, as well as mixed actions, it was a remedy existing at common law.a

On recognizances at common law, no scire facias lay until it was given by the 2d Westminster. Since the enactment of that statute, a scire facias may be defined to be a judicial writ or action, founded on some matter of record, as judgments, recognizances, and letters patent.b Now it is obvious, that the bond in question is not a matter of record ; nor can it with propriety he distinguished as a judicial act. It was not taken by direction of any statute, but under the fiat of the Judge awarding,the injunction, by the clerk of the Court, in the performance of his ministerial duties. If a scire facias can be sustained on this bond, it would be difficult to conceive of one taken by an officer of a Court of record, on which that remedy would not be proper. In my opinion, the proper remedy on all bonds taken by ministerial officers of Court, independent of general or special legislation controlling, is an action of debt, or other appropriate common law action.

The common law has been doubtless repeatedly supposed to be co-extensive with the statute ofWesminster 2d; and this mistake has happened from a neglect of many of the adjudged cases, to refer to that Statute. But if the statute itself could be considered as expressive of the common law, for the reasons stated, it is apparent to my mind that the bond is not a fit subject for the remedy by scire facias. I am not inclined to controvert the position impliedly assumed in the opinion of the Court, that the act of the 12th January, 1826, does operate retrospectively, so as to extend its influence to the remedy upon the bond. This construction furnishes a sufficient reason why the judgment should not be sustained. By that act, the bond itself, on a dissolution of the injunction, is declared to have the force and effect of-a judgment, and execution may thereupon be issued against all the obligors. Is it proposed to effect more by the scire facias, than to obtain a judgment upon the bond? Certainly not. By the judgment upon the scire facias, the obligee in the bond acquires .bo power *462which, he did not before possess, to coerce the payment of 'bis judgment at law, and decree upon the. bill.- Surely it is no answer to this to say, that the proceeding by scire facias cannot prejudice, but will rather benefit the obligor. It is apprehended it would not be insisted, that after a judgment obtained against the maker of a note, another action could be sustained on the same note; though it might with equal force be urged that the -defendant would be rather benefitted than prejudiced thereby, as he might obtain a delay, and interpose matters of deience, which the enforcement of the judgment would notallow. To my mind it is a sufficient answér to this argument, that by the entertainment of 'the scire facias, the defendant is unnecessarily and vexatiously Mulct in costs.-

In every point of view in which I can conceive of the case, lam of opinion that the judgfnent should be reversed..

Judgment affirmed.

. Salk. 258, 600. 6 Bac. Abridg’t 104. 3 Blac. Com. 421. 6 Jacob’s Law Dic. 22, and cases there referred to.

2 Term, It. 46 and 267.