
    Gardner B. Locke v. John G. Brady.
    1. Statute of jeofails. — The statute of jeofails only applies to judgments regular on their face, as presented by the record, and justified by established practice in the particular case: it will not operate to justify a judgment not sanctioned by law, because the defendant has failed to make the objection until after verdict.
    2. Sciee facias. — A scire facias will not lie to revire a judgment between the original parties thereto, except where there has been a failure to issue an execution for a year and a day from the date of the rendition of such judgment; it is therefore unnecessary, and without warrant of law, to issue a scire facias to revive a judgment, where a, fieri facias has been regularly issued within a year and a day, and levied on personal property, even if it do not appear that any legal disposition has been made of such levy.
    3. Sciee facias, judgment.- — A scire facias to revive a judgment, as between the original parties, is but a continuation of the former action, for the purpose of awarding execution of the original judgment; it will be error, therefore, on the return of the writ, to enter judgment, “ quod recuperet.”
    
    4. Sciee facias, motion to quash. — If a scire facias be issued in a case not provided for by law, and upon the return thereof, the defendant appear and plead payment, and upon that issue the jury find for the plaintiff, and the court enter judgment therein, quod recuperet, it will not be too late for the defendant to make his objections to the scire facias by motion; and the court has power at the term when the judgment was rendered upon such motion, to set aside the verdict and judgment, and quash the scire facias.
    
    5. Execution, levy, venditioni exponas. — If a fieri facias be levied on personalty of the defendant and returned without a sale, the plaintiff is entitled to a venditioni exponas ; and if upon such writ the property cannot be found, or if found and ' sold, be insufficient to satisfy the writ, the plaintiff may in either case have his fieri facias de novo.
    
    
      In error from the Circuit Court of Yallabusba county. Hon. T.,M. Rogers, judge.
    The facts of the case sufficiently appear in the opinion.
    The'cause was argued in this court, by (flenn, attorney general, of counsel for plaintiff in error, and D. Mayes, for defendant in error.
    The following brief was filed on behalf of plaintiff in error, by O. P. Sheppard.
    
    
      Brief. — The court erred in setting aside the verdict and judgment, and dismissing the scire facias.
    
    1. The objection urged, could only have been taken by plea.
    The scire facias need only show an existing judgment; that being the basis of plaintiff’s title. But it would have been a sufficient answer to this objection, that plaintiff’s judgment had been impaired, and that a benefit accrued from a renewal.
    Our legislation warrants the conclusion, that this remedy may be pursued, pari passu with debt. The statute recognizes it, as proper to renew judgments without any restrictions. See Hutch. Code, 841 § 43, 826 § 9, 830 § 8. In the case at bar, the judgment had lost its lien by the lapse of two years, Hutch. Code, 832, § 13. The remedy would have been barred by the statute of seven years, within a few days after suing this writ; and the return on the last fieri facias issued in 1841, showed a levy without any disposition, which, primá facie, was a satisfaction. To obviate these difficulties, it was necessary to renew the judgment. If the plaintiff had resorted to the fieri facias, he could only have had the common law lien by virtue of a levy, on the delivery of the writ to the sheriff; and, if trusting to the fieri facias, that remedy had failed by the death of the defendant, or other cause, the debt would have been lost; for, though the statute authorizes executions to be continued, if an interval of not more than seven years intervenes, yet the debt is barred after seven years, if scire facias or debt becomes necessary. Again: the fieri facias would have been irregular in this case, as the last return in 1841, showed primá facie satisfaction. The renewal of the judgment by scire facias restored to the plaintiff the statutory lien lost by lapse of time. See Qlippinger v. Miller, 1 Penn. R. 71.
    
      
      Seire facias is an action, and in tbe nature of an original writ. See Piehett v. Piehett, 1 How. 267; G-reemvay v. Pare, 1 Halst. 305. Tbe judgment on seire facias bars all action on tbe original judgment, each successive seire facias being founded on tbe one next preceding. See Qottingwood v. Oarson, 2 Watts & Sergeant, It. 220. And defendant could not plead any matter, wbicb could bave been pleaded on a former seire facias. Tbe judgment then in tbis action, bas all tbe power and effect of a judgment in debt. A new lien arises, and tbe statute of seven years limitation, would only again commence from its date.
    2. Tbe plea of payment admitted tbe plaintiff’s cause of action and right to renewal. And after verdict, tbe defect insisted on, if it bad existed, was cured by tbe Statute of Jeofails. Tbe record showing a judgment, discloses a title in tbe plaintiff, it being only necessary for tbe scire facias to show an existing judgment.
    It is urged that tbe only judgment that could bave been entered was to award execution on tbe original judgment. Such was the rule in England, but, under our legislation, a different rule must prevail. Tbe judgment, by statute, bears interest, and judgment must be entered for tbe interest that bas accrued. Under a similar statute in Pennsylvania tbis practice was adopted. See Berry-hill v. Wills, 5 Binney, R. 60. Again: tbe plaintiff can only have execution for what may be really due, and defendant may prove partial payments. Such was tbe result in tbis case; part payment was established, and tbe verdict is tbe only evidence of the amount due, and therefore must be tbe basis for tbe judgment.
    We submit, that tbe only course that could be pursued, was to enter judgment, and award execution for tbe amount of tbe verdict. Awarding execution is virtually giving judgment; tbe objection is merely technical, which, under tbe practice in England, might bave been proper, but certainly cannot be plausibly urged here. Tbe judgment setting aside tbe verdict, and dismissing the seire facias, should be reversed, and tbe judgment rendered on tbe verdict of tbe jury, affirmed.
    1X Mayes, in reply contended,
    
      1. That the common law gave an action of debt upon a judgment where no execution had issued for a year and a day. 2 Tidd’s Practice, 1102.
    2. That the Statute of Westminster 2, (13 Edw. 1,) stat. 1, ch. 45, gave the remedy by soire facias.
    
    3. That our statute, Hutch. Code, 826, only gave the remedy by scire facias, in cases where it existed under the law of England.
    4. That under the law arising from the English praptice, an execution having issued, no scire facias was necessary. McQoy v. Nichols, 4 How. 31.
    5. That an execution having issued in this case, within a year and a day, no scire facias was necessary; and not being necessary, the remedy by scire facias was not given. 4 J. J. Marsh. 60; 3 Barb. Sup. Ct. R. 192; 1 Overton, 64; Cooke, R. 274.
    6. That a scire facias upon a judgment, which was more than ten years old, could not issue, except upon leave granted by this court, upon motion supported by an affidavit,* that the judgment was unsatisfied; and there being no motion or affidavit in this case, the verdict and judgment should have been set aside. Tidd’s Practice, 1165.
    7. That all judgments and orders, during the term at which they are entered and made, are within the power of the court, and it is matter of judicial discretion to set them aside; when' it 'is matter of discretion, no writ of error lies, and therefore the cause is improperly in this court.
    8. That if a motion in the court below was not the proper modo to make the objection to the scire facias, the plaintiff in error could not now assign that for error, inasmuch as he acquiesced in the propriety of that mode, by meeting the motion; he should have objected to the court hearing the motion. Varner v. Qrdbb, 2 Carter, Ind. R. 169.
    9. That the judgment rendered in the court below, on the verdict being'quod recuperet, was unauthorized: it should have been to revive the original judgment. Nall v. Nall, 8 Vermont, R. 159. Ingraham v. Bech, 2 Strobh. 219.
   Mr. Justice Haíídy,

delivered tbe opinion of tbe court.

On tbe 28tb March, 1838, tbe plaintiff in error recovered a judgment against tbe defendant, on wbicb a writ of fieri facias was issued in July, 1838, and levied on a stock of goods, wbicb, by agreement, were not sold under tbe execution. An alias fieri facias was issued in 1841, wbicb was also levied on a stock of goods, but no sale was made, and tbe execution was indorsed by tbe plaintiff’s attorney, that it was held up by request, and that no sale of property was to be made, nor other execution issued until further orders.” No other execution was issued. On tbe 13th January, 1851, a scire facias in tbe usual form was issued to revive tbe judgment; to wbicb tbe defendant pleaded payment, and upon that issue, tbe case was tried at May term, 1852, and a verdict found for tbe plaintiff, for tbe amount of tbe principal and interest of the original judgment, and a judgment quod recuperet rendered thereon. At tbe same term, tbe defendant moved tbe court to set aside tbe verdict and judgment, and to quash tbe scire facias, because it was issued without authority of law — wbicb motion was sustained, and tbe plaintiff excepted, setting forth tbe facts as above stated, and has prosecuted this'writ of error.

Tbe first point raised on behalf of tbe plaintiff in error is, whether it was competent for tbe court to set aside tbe verdict and judgment, after tbe case bad been tried upon tbe issue of paymeht.

It is contended, that tbe defendant, by placing bis defence solely on tbe ground of payment, waived all objections to tbe regularity of tbe scire facias, or that tbe defects in it are cured by tbe Statute of Jeofails. This may be true, with regard to tbe defects in tbe scire facias. ■ But if tbe verdict and judgment were such as were not warranted by law, in such a proceeding tbe particular defence set up and found against tbe defendant, could not justify such verdict and judgment, and it was proper for tbe court, wbicb bad control of its own proceedings and judgments, during tbe term, to set them aside upon motion. Such a state of case, is not within tbe Statute of Jeofails, wbicb applies only to judgments, regular on their face, as tbe case -is presented by tbe record, and justified by tbe established practice, in tbe particular case. And this presents the question, whether this verdict and judgment were warranted by law.

The scire facias was in the usual form to revive a judgment between the' original parties to it, calling on the defendant to show cause, why the plaintiff should not have execution. On such a writ, the practice in England, under the statute of Westminister 2, is well settled, that the proper judgment is merely an award of execution. And the same practice has been established by most of the courts in the United States. It is justified by the nature of the proceeding, which is but a continuation of the former action, in order to enforce the former judgment, and by the demand of the writ, that the plaintiff may have execution. We do not think that the statute of 1822, Hutch. Code, 826, § 9, authorizing the revival of judgments by scire facias, changed the nature and legal effect of such a writ from what it was under the English statute, or that any thing more was contemplated by our statute, than to give a party the right to have execution of his original judgment, by means of the writ of scire facias. The evil intended to be remedied was the inability of the plaintiff to proceed upon his judgment, by reason of lapse of time or other impediment to his execution; and the remedy provided was to “revive” the judgment by scire facias, that is, to restore its original force, and cause it to be carried into execution. This manifestly contemplates the enforcement of the original judgment, and not the rendition of a new one by means of the scire facias.

We therefore think that the court acted properly in setting aside the verdict and judgment.

The next question is, whether it was error for the court to quash the scire facias.

As to the attitude of the case, at the time this order was made, after the verdict and judgment were set aside, the case was as it stood before the verdict; and though it would have been more formal to have the objections to the scire facias set up by way of plea and defence, we do not think it was error for the court to consider them onhnotion. Eor no prejudice was done to the plaintiff thereby, further than would have been done, if the defendant, after setting aside the verdict and judgment, had applied for leave to set up the objections by way of plea, which it would have been entirely competent for the court to allow to be done.

"Was the scire facias maintainable, then, under the circumstances of the case ?

It ajopears that after the rendition of the original judgment, executions were issued, which, upon well settled rules, rendered it unnecessary to resort to a scire facias to revive the judgment by reason of lapse of time. And there was no change of parties rendering such a course necessary.

The ground upon which the necessity for the scire facias is placed by the counsel for the plaintiff in error is, that the executions issued in the case, had been levied on chattels of the defendant, and that this, in legal presumption, was a satisfaction of the judgment. But this levy was no obstacle to the plaintiff’s execution. He might have issued his venditioni exponas to sell the property levied upon — a course altogether proper, and open to the plaintiff. If upon such a writ, the property was not to be found, (and it is shown by the record not to have been sold,) or upon a sale, was insufficient to satisfy the judgment, the plaintiff could have had his fieri facias de novo. Thus the plaintiff’s right to enforce his execution, was entirely unobstructed, and the writ of scire facias was altogether useless and unnecessary. The law does not countenance vain and useless things, especially when unnecessary costs must be the result of the abuse of its process.

We perceive no error in the judgment, and it is therefore affirmed.  