
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1807.
    Executors of Grimke v. John Mayrant.
    Proceedings on sci.fa. must be in the same court where the original proceedings are kept of record. The writ of sci. fa. must be returnable to that court where the original proceedings are of record.
    The service of a writ of sci. fa. must be personal, if the defendant be within the State. If he be off the State, the service must be by posting a rule at the door of the court house, according to the act of assembly of 1792.
    The writ of sci. fa. may be directed to and may be served by any sheriff in the State. And it ought to be sent to the sheriff of the district where the defendant resides, unless he may be found in another district; and must be returned to the court where returnable.
    A writ of sci. fa. was issued to revive a judgment entered up in Charleston district. The sci.fa. was returnable to Charleston, and was served on the defendant in Sumter district, where he resided. A motion was made in Sumter district, in behalf of the defendant, before Bay, J., to set aside the writ as irregular, on the ground that the defendant ought to have been required to shew cause in Sumter district, wherein he resided, and not in Charleston District Court, to the writ of sci. fa. The motion was sustained by the court, and the writ quashed. Afterwards, the plaintiff sued out two several writs of sci. fa. in succession against the defendant in Charleston district, returnable to the Court of Common Pleas in Charleston, t© which writs the sheriff returned nihil; whereupon judgment was entered against the defendant for default, no appearance having been entered.
    Simons, for the defendant, 7
    
    moved the District Court of Charles. ton, Judge Wilds presiding, in January, 1806, to set aside the judgment entered up as aforesaid upon the sci. fa., on the ground that the defendant had no notice of the sci. fa., and had no opportunity to shew cause. That he ought to have been served personally with a copy of the sci. fa., to shew cause at the Court of Common Pleas of the district wherein he resides, or wherein he is served with process, and not elsewhere. *
    This motion was sustained, and the proceedings upon the sci. fa. were set aside. Whereupon the plaintiff appealed to this court.
    The opinion and decision of Wilds, J., was as follows: “ The original judgment in this case was obtained and entered up in Charleston. Two writs of sci. fa. in succession were issued to revive the judgment, to both which nihil was returned. Thereupon judgment on sci. fa. was entered up, and execution issued. It has been contended, that the judgment is irregular on two grounds. 1st. Becauselhe writ of sci. fa. should have been returnable to the court of the district in which the defendant resides. And 2d. Because, at all events, the writ should have been served on the defendant, although issuing from and returnable to the court of the district wherein the judgment was entered up ; it being a fundamental principle in rational jurisprudence, that no man shall be condemned unheard. The counsel for the plaintiff in the motion has conceded, that by the practice in England, a judgment can only be revived by sci. fa, from the court in which such judgment was entered up; and that although this remedy was given by statute, 13 Ed. 1 c. 45, in that country, it was engrafted on the practice of this State at a very early period; and also, that a return of scire feci, or two ni. Mis, were sufficient to revive a judgment; but has contended, that this practice is not applicable to the present situation and circumstances of this country. That the strong similarity in jurisprudence between that c'ountry and this, which once existed, and authorized the adoption of the practice of the one, as suitable to the other, has been destroyed, either directly, by acts of our legislature, or indirectly, by their constructive operation. I confess, my reflection on the reasoning in support of this motion has induced me intirely to change my former opinion on this subject, under the influence of which I have long acted. In England, all their process in the progress of a suit, in whatever comer of the Iriogdom it may have oc-cas‘on to S°> emanates from, and is returnable to some one of the courts in Westminster Hall, the great repository of the records of kingdom. So, formerly in this State, the process was all made returnable to Charlestown. In either of these cases, the practice seems founded in reason. The party to be affected by the process either has notice, or notice may be legally presumed impracticable and unnecessary; because the return of scire feci establishes the notice required, and the return of two nihils to process which could legally search every part of the State, establishes satisfactorily, that the defendant is not to be found, and has waived his right, to notice. But since the year 1789, the line of demarkation between the several districts, is distinctly drawn. Their independence of each other entirely established; and the process of one, directed to its proper officers, cannot, even in legal intendment, be presumed to give notice to a resident in another. In fact, their separate jurisdiction, in some respects, vary but little from the jurisdictions of different States.
    
      “ This radical change in our whole system of jurisprudence, has, in my opinion, entirely changed the former practice on this subject, by destroying the foundation of that legal presumption of notice on which it was founded. The act of 1791, expressly limits the jurisdiction of each Court of Common Pleas, to such cases where the defendants reside, may be arrested, or taken in the district in which such court may be held. This act I think important in deciding the present question, although it relates more particularly to original actions. For although from the form and nature of the writ of scire fa-cias, it can only issue from the court where the judgment is entered up, being a mere continuation of the original suit, yet this act directs the extent of its operation. What is the object of this process? To give notice to the defendant. The law presumes satisfaction of the judgment, if there have been no proceedings for a year and a day; Before any new advance can be made, the defendant is called on to shew, whether this presumption be founded in fact ?
    “ I have before observed, that there is less occasion for requiring proof of actual notice, where, from the nature and extent of the process, notice may be inferred; but this notice can now no longer be presumed, unless the process have the proper return of the officer, appointed in each district, for serving process. It will be observed, that the act of 1791, although it authorizes ,the clerk of each court to issue process, which may be served in any district of the State, does not provide that such process may not, when necessary, be returned to the court from whence it issued. The contrary is do-ducible. The act evidently intends to substitute actual, for presumed, notice, by requiring the services of those whom the law presumes acquainted in each district. The exception, in the act in the case of executions, proves that in those instances in which process can only issue from a particular court, it may be served in any other district, but must be returned to the court issuing it. The sheriff of each district, in such cases, not only being the officer of his particular district, but of every other district; so much so, that he can only be punished for neglect, or contempt, in executing such process by the court issuing the same. The same reason, which requires such provision in favor oí executions, applies to writs of scire facias. Both are necessarily issued from the court which has possession of the record, being merely proceedings in a cause under .the control of the court of which no other tribunal can be presumed to have any cognizance. So in the case of subpoenas, rules, and all orders, necessary in the progress of a cause; they are served in any part of the State, but are returnable to the court issuing them.
    “ The act of 1792, provides, ‘ That where rules, or process to revive proceedings at' law, cannot be served by reason of the person’s absence from the State, it shall be sufficient to post such rules or process on the court house door of the district in which such absent person had his last residencewhich proves that actual notice is required, where the defendant is within the State, and that the district where the party resides, and not that where the judgment is entered up, is the place to which the scire facias should be directed.
    “ Upon the whole, I am of opinion the sci. fa. should have issued to the district where the defendant resided, and to be served by the sheriff of that district, and returned to the court from whence it issued ; and, therefore, that the judgment must be set aside for irregularity.”
    The case was argued in January, 1807, by Pabkek, in support of the motion, and Simons, in opposition to it.
    Parker
    cited 2 Crom. 95, 3d ed. St. Westm. 2, 13, Ed. 1, c. 45. 3 B1- Com. 421. No sci. fa. lay at common law in personal actions. The object of the stat. Westm. 2, was to avoid delay and ^expense. Therefore two nihils were deemed to be a sufficient return, to authorize the revival of a judgment, and equivalent to a personal service. The proceedings upon a sci. fa. being a continuation of the original proceedings upon the judgment, which was obtained in the original actioD, must be iu the same court, where the original proceedings were had. The act of assembly of 1712, P. L., gives to our Courts of Common Pleas the same powers the judges have *n England, and authorizes them to issue writs of sci. fa. The act of assembly of 1746, P. L. 212, recognizes the return of two nihils ; and sanctions this return as sufficient to prevent the abatement of suits in case of the death of one of the parties. The act of assembly of 1736, P. L. 45, which requires all process to be served personally, or by leaving copies at the place of the defendant’s residence, relates to original process, and not to sci. fa. The act of assembly of February, 1791, relates to original process, and not to sci. fa. Sci. fa. is a judicial writ, founded on some matter of record, though, in some degree, in the nature of an original process, as it may be pleaded to, and is, therefore, an action. The County Court act of 1784, sec. 10, relates to bail, and alters the proceedings on sci. fa. only as to bail. The act of assembly of 1792, sec. 7, which authorizes the posting of notices at the doors of court houses, in order to revive proceedings, where the defendant is off the State, does not apply to sci. fa. It does not apply at any fate to this case, because the defendant was not absent from the State. The act of assembly, 21st December, 1799, sec. 3, applies only to original process, and not to sci. fa., requiring all actions to be tried in the district where the defendant resides, is arrested, or taken.
    Simons.
    It is contrary to the principles of natural justice that any man should be condemned unheard. It is a principle inherent in the constitution, that every man shall be warned, or have notice, before judgment shall be given against him. If policy warrants the return of two nihils, for mere form sake, in order to avoid delay, without any intent thereby to warn the party, why should the writ issue at all ? It certainly can answer no end, where the party lives out of the district, unless by accident. It would defeat the intent of the stat. An. c. 16, P. L. 95, to allow judgments to be revived without giving the defendant notice. That statute allows the pleading of payment after the rendition of the judgment. The act of’ assembly of 1736, if equitably expounded as it ought to he, applies to sci. fa., as well as to original writs. The act of assembly of 1769, confines civil action to the several precincts within which the defendants reside, or are served with process. This regulation relates as well to actions by sci. fa. as to other actions. The act of assembly of 1791, gives original and final jurisdiction to the several district courts in all actions of what nature soever. Sci, fa,, is acknowledged to be an action. 2 Sellon, 187. AH statutes which speak of actions, are construed to mean the proceedings on sd. fa.. I D. and E. 267. A release of all actions includes sd fa. 2 Wils. 251. 2 Inst. The mode of administering justice in this State, is, in many respects, different from that which is established in England. All writs in England emanate from Westminster Hall. Actions are divided into local and transitory. The latter may be tried any where. The former must be tried where the lands lie. Action of sd fa. are considered local, being confined to the court where the judgment was obtained. These rules are not binding in this State, being altered by statute law. Personal actions follow the person with us. The right to sue or prosecute in any court, depends on the place where the defendant lives, or is served with notice. In England it is otherwise. Action of debt in England lies on a judgment in Middlesex, or in the county where the .original action arose, if brought in Cl B.; but if brought in K. B., it is otherwise, and the action must bs where the original action was prosecuted. 1 Sellon, 248. 2 do. 51, 52. The county court act of 1784, P. L. 369, is conclusive on the subject. This act makes it necessary on a return of non estimo., to the first writ of sd. fa,, to issue an alias, directed to the sheriff of .the district where the party resides. By act of assembly of 1721, and 1769, P. L. 116, 270, all writs and other precess, in civil actions, triable in the Circuit Courts, shall be directed to all and singular the sheriffs of the said State, and shall be served by the sheriff, or his deputy, for the district where the defendant is found, or resides. See also, act of assembly, February, 1791. By act of assembly of 1792, where rules, or process, to revive proceedings at law cannot be served upon persons, because of their absence from the ■ State, it shall be sufficient to post such rules, or process, upon the court house door of the district in which such absent persons had their last residence. No person need now be present at the service of the sd. fa. Act. assembly, 1799. The several Circuit Courts shall be capable of exercising the same complete, original, and final jurisdiction, as is possessed and exercised by the courts of General Sessions, and Common Pleas, now held in Charleston. Act assembly, 1789. P. L. 489. All judicial process, executions excepted, shall issue from any of the courts, and may be served in any district. Ib. Also act of assembly, 1791, February. Where two or more defendants live in different districts, the plaintiff has an election to try the cause, where either of them shall reside, or was served with process. Act assembly, February, 1791.
    
      
      Curia advisare vuli.
    
   January, 1808.

Brevard, J.,

delivered the opinion of the court* To form a correct opinion in this case, ijt is necessary to inquire how the law upon this subject has stood in England, and what al* íei,at;ong jlave }jeen ma¿e by statutes there, and in this State. The writ oisci.fa., to revive a judgment in any personal action, did not lie at the common law. If the plaintiff did not sue out his execu-* tion within a year and day after judgment, he had no remedy but by a new action of debt upon his judgment. 2 Inst. 469. It was given by stat. West. 2, c. 45,13 Ed. 1. This statute is not made of force here expressly by the act of 1712 ; but it is recognized by sundry statutes which are in force, and therefore under a gen. eral clause in the act of 1712, and because the writ of sci. fa. is expressly mentioned in subsequent aets, as a process which may be used, the stat. of Ed. 1. must be regarded as in force. See the se* veral acts cited in the foregoing argument. A sci. fa., to revive a judgment in a personal action, is the continuation of an action, and is not an original action. It is brought for the purpose of en« forcing a judgment already obtained. 2 Cromp. by Sellon, 188. The intent of the writ is to give notice to the party to be affected by the judgment that it is meant to be enforced, and to affoyd him an opportunity of shewing cause why execution should not issue to enforce it. In England, the party must be regularly warned, or two nihils returned. The course of the Common Pleas, is that upon a recovery against the defendant, against whom the sci, fa. is issued, the plaintiff shall have execution upon one nihil returned. 2 Inst» 472. The return of nihil is, that the party is not to be found, and hath nothing by which he can be distrained. See Tidd’s Prac. Forms, 455. In England, the writ is directed into thea county where the original action was brought. See Pract. Reg. 2 vol* 498. For it is always presumed, that the party against whom the judgment was obtained, still resides there. Cro. Ja. 331. See Hob. 4. Yelv. 218. 2'Saund. 729. Note v. When the sheriff returns nihil the plaintiff must sue out an alias sci. fa. 4 Inst» 472. If he return nihil to the second writ, and defendants, or bail, do not appear, judgment shall go. Dyer, 168, 172. From these authorities we may conclude, that the writ of sci. fa. always issues, or is always intended to be issued to the sheriff of that county, or precinct, of which the defendant is an inhabitant, and that it is necessary the sheriff should return that he is not to be found, unless he can find him, and doth serve the process on him. When the defendant is served with process, or the return of nihil Is duly made, the proceedings must be carried on in the court where the original action was prosecuted to judgment. Before the year 1789, the Court of Common Pleas in Charleston, was the only court of record in the State. The Circuit Courts, established by the act of 1709, were similar to the courts of Nisi Prius in Eng. land. The proceedings on sci. fa., therefore, it is presumable, in this State, were correspondent to the practice in England, until the act of assembly of 1789, which declares, that the several Circuit Courts shall be capable of exercising the same jurisdiction as the court in Charleston. Before the passing of this act, it seems reasonable to suppose, notwithstanding the record of the proceedings to judgment in an original action were filed and kept in Charleston,' and purported on their face to be a judicial proceeding in the court in Charleston, that a sci. fa. to continue that action, or to revive the judgment, so as that execution might be sued out thereon, issued, and went into the district where the original writ was served, to authorize a return of nihil. The only doubt on my mind, is, whether it is necessary to proceed on a sci. fa. in the same court where the original proceedings are of record, or whether the proceedings, may not be carried on in the district where the defendant resides, or was served with notice to shew cause. The act which dispenses with witnesses being present at the service of a sci. fa., seems to require a personal service. A personal service of a copy writ on a defendant, on sci. fa., has always been deemed necessary wheie the defendant can be found. If he is off the State, posting a rule at the court house door, seems to be authorized by the act of 1792.

The act of February, 1791, gives cognizance and jurisdiction to the Circuit Courts of Common Pleas of all civil pleas, or actions, in the several districts wherein the defendants may reside, be arrested, or taken by process, or warrant; and the same shall be heard, tried, and determined, at the said courts respectively. This act, and the act of 1721, P. L.- 117, which makes attested copies of all records, signed by the keeper of such records, as good evidence as the original themselves, seems to remove every objection to the prosecution of a sci. fa. in the district where the defendant may be resident, or served with process, although it should not be the same district where the record of the original' proceedings are kept; except this, that it would be attended with inconvenience, and, perhaps, mischief, to separate the proceedings. As the sci. fa. is considered a continuation of the same suit, it would appear most proper that the subsequent proceedings on the sci. fa. should be in same court where the previous proceedings were had, and remain of record. All the proceedings in the suit would then be together, but it would expose defendants to great inconvenience in many instances where they might have a good defence. Yet this might be avoided by the plaintiff bringing debt on the judgment. I have no hesitation, however, in saying, that the return made in this case of two nihils, by the sheriff of Charleston district, when the plaintiff knew that the defendant was resident in Sumter dis. trict, was insufficient to authorize judgment on the sci. fa., and that the decision of the District Court of Charleston was proper.

Note. In K. B., in all cases there must be either one scire feci return, or two nihils. 8 Mod. 227. So also, in C. B. except where the sci. fa. is to revive a judgment against defendant himself, who was party or privy to the judgment, for there one sci. fa. returned nihil, is sufficient. Dy. 168, a. See 2 Saund. 72, 3, 3rd ed. in notes. If a sci. fa. be sued, and sheriff return two nihils, and execution is awarded, and defendant has a release, which he might have pleaded, to the sci. fa. he may relieve himself by audita querela, or by motion in court, if the fact be not disputed; but if the sheriff return scire feci, the defendant is estopped forever, and cannot take advantage of that matter, because he might have pleaded it. See the authorities cited in Williams’ edition of Saunders”' Reports, 2 vol. 72, v., in the notes. No damages for delay of execution can be given in a sci. fa., nor could costs, until 8 and 9, Wm. 3, c. 3.

January, 1808. Present, Ghimke,. Waties, Bay, Brevard, ■ and Wilds, Justices, Trezevant, J., absent, sick. Brevard, J., delivered the opinion of the whole court, in substance the same as the foregoing opinion. These points are to be considered settled ' by the determination. That the proceedings on sci. fa. must be in the same court where the proceedings on the original action are kept of record. That the writ of sci. fa. must be returnable to the court where such original proceedings are kept; and the sheriff to whom the writ of sci. fa. shall be delivered for service, shall be obliged to endeavor to serve the same, and shall return it to the court in which it is returnable. That the service must be persona],, if the defendant can be found. That if the defendant be off the State, the service must be by posting a rule at the court house door, as directed by act of assembly of 1792. It is not yet decided, that the return of nihil may not be proper where the defendant is resident in the State, but cannot be served personally.  