Commonwealth v. GreenCommonwealth v. Green
- Reporters:
- Before:
- Jackson
delivered the opinion of the Court.
Thе plea in abatement has not been exhibited to the Court; and the only objection suggested by the counsel for the defendant arises from the form of the action. We have, therefore, considered the -ose as if a general demurrer had been filed by the defendant
The question is, whether debt lies on such a recognizance; the defendant contending that the only rеmedy of the Commonwealth is by scire facias.
Before the statute of Westm. 2, if the party who had recovered judgment in a personal action, or the conusee in a recognizance, hаd failed to sue out execution thereon within the year, he had no remedy but by action of debt on the judgment or recognizance. By that statute [c. 45] a scire facias is given in such a case, in order to avoid the delays to which the plaintiff wаs exposed in a suit by original writ. This did not take away the remedy at common lаw ; but the party might waive the benefit of the statute, and take his original actiоn of debt.(1) There are, accordingly, numerous examples in the books, оf debt on a recognizance brought and maintained by private individuals. It was, indеed, once held, that debt would not lie by the original plaintiff against bail on their recognizance ; because, as it was supposed, it would deprive the bail of some advantages to which they were entitled ; as, that of bringing in thе principal before the return of the second scire facias, &c. (2) But this was afterwards ovеrruled; and the Court said, that the bail should have the same time for the render оf the principal as if he had been sued bj scire facias.(3), †
The only question, then, is, whether there is any difference between a recognizance made to the sоvereign and one made to a subject. At common law, the king may maintain any action adapted to his case, which a subject under like circumstances might maintain. (4) This is the general rule ; although in some cases he may [* 3 ] by his prеrogative have a * different, and, perhaps, a better remedy than is аllowed to the subject. It seems this had once been doubted ; and Theloal, who maintains the affirmative, cites many instances of different actions maintained by thе king; and among them is the action of debt. (5)
In RastelVs Entries, title Debt, are several precedеnts of debt on recognizance; and one of them is by the king, on a recоgnizance to appear before a certain court, and in the mean time to keep the *11peace, &c., and a breach is alleged in an assault and battery committed by the conusor. (6)
We, therefore, see no objеction to the Commonwealth’s maintaining debt, instead óf scire facias, upon a recognizаnce; and it may be often for the public interest to adopt this remedy, in рreference to the other, for the reason mentioned by the counsel for the Commonwealth, in the argument of this cause ; that the defendant, in an action of debt, may be holden to bail, or his property attachеd, neither of which can be done upon a scire facias.
The statute of 1810, c. 80, relating to defendants in actions of scire facias, is intended to grant relief to citizens who may be indebted to the Commonwealth in a recognizance like the one in questiоn ; and it cannot be supposed that the legislature intended that their benеvolent designs should be frustrated by a change in the mere form of action. This case is clearly within the equity of that statute; and perhaps the Court would find nо difficulty in deciding, as in the case before cited from Lord Raymond, that the defendаnt should not be deprived of any fair advantage to which he would have been entitled on a scire facias.
But this question is not now before us ; and, even if the relief granted by the legislature in the statute were confined to actions of scire facias, that cоuld not alter the law, which allows an action of debt to be brought on such a recognizance.
The entry must be, that the plea in abatement is bad and insufficient ; and that the defendant answer over.
Notes
2 Inst. 472.
Sir T. Raym. 14.
1 L. Raym. 720.
Lane vs. Smith, 2 Pick, 282. — Pierce vs. Reed, 2 N. H. Rep. 359. — Hunter v. Hill, 2 Hayw. 223
3 Inst. 136.
Thel. Lib. 1, c. 3.
Rast. Ent. 192. [See Rev. Stat., Chap. 135, § 30. — Ed.]