
    SPENCE vs. SIMMONS
    1. In scire facias against a defaulting witness, where no declaration is filed on the return of the wit, the writ itself must show, by positive averment, that a subpcena had been issued and served, and then set out the judgment nisi in substance; the writ is insufficient if it only sets out the judgment nisi, which recites that the plaintiff appeared and suggested to the court that a subpcena had been issued and returned executed.
    ERROR to the Circuit Court of Coosa.
    Tried before the Hon. John Bragg.
    JohN T. Morgan, for plaintiff in error.
   DARGrAN, C. J.

— This was a scire facias against Spence as a defaulting witness, to show cause why a judgment nisi should not be made absolute. There was no declaration, and the judgment was by default; consequently the only question is, the sufficiency of the scire facias.

It is not indispensably necessary to file a declaration upon the return of a writ of scire facias, but the writ itself may be considered as the declaration, and always is under our practice, unless indeed a declaration be in fact filed. But when no declaration is filed, the scire facias (except in cases upon forfeited recognizances, in reference to which we have special legislation) itself should show every material fact to entitle the plaintiff to a judgment. It should show by positive averment that a subpcena had been issued, and that it had been served, and then set out in substance the judgment tos?', rendered on account of the failure of the witness to attend. See Emanuel v. Ketchum, at the present term. But in the case before us, there is no averment of the issuing of the subpoena, nor of its service; the scire facias is, therefore, fatally defective. It is true, that the judgment nisi is set out, and that shows that Simmons appeared, and suggested to the court that a subpoena was issued, which was returned executed. But this averment in substance is, that it was suggested to the court that those things were done, and not a positive averment that they were; that is, that a subpoena was issued and had been executed. According to the case of Emanuel v. Ketchum supra, such an averment is insufficient.

Let the judgment be reversed, and the cause remanded.

ChiltoN, J. not sitting.  