
    William L. Chew et al. vs. Elijah Peale, Trustee of the late Agricultural Bank of Mississippi.
    In order to revive a judgment at law in favor of a bank, whose charter has been taken away from it under the act of 1843, and a trustee thereof appointed, in the name of such trustee, it seems the more regular mode would be to proceed by scire facias; yet, if a motion to revive such a judgment, in the name of such a trustee, be made in the court which rendered the judgment, and the defendant appear and contest the right to revive, without objecting to the form of the proceeding, and the judgment is accordingly revived, the judgment so reviving it, will not be disturbed in this court, merely because it was rendered upon motion, and not upon scire facias.
    
    On appeal from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.
    
      The Agricultural Bank of the State of Mississippi brought an action of assumpsit to the May term, 1843, against William L. Chew, Sarah R. Grayson, Frisby F. Chew, and Beverly R. Grayson, on their promissory note, made payable to the plaintiff ; to which the defendants plead the general issue. At the May term, 1844, the death of Beverly R. Grayson was suggested, and the suit abated as to him, and the jury gave a verdict for plaintiffs for the amount of the note against the other makers. On this judgment execution issued, and was bonded after being levied on the property of Sarah R. Grayson, with B. G. Chew, security; which bond was forfeited on the 4th November, 1844. On the 30th December, 1844, a fieri facias issued on the forfeited forthcoming bond, and went into the hands of the sheriff on the 4th January, 1845, and was superseded on the 30th April, 1845, upon the ground that the bank had been served with a writ of quo warranto. At the May term, 1846, the supersedeas was discharged, and at the May term, 1847, a motion was made to revive the judgment in the name of Elijah Peale, trustee, &c. appointed by the court under the act of 1843, <fcc. The defendants appeared and resisted the motion, but it was sustained, and the judgment revived accordingly. To this order of the court the defendants objected, and tendered their bill of exceptions, and appealed.
    
      Miles and Battaile, for appellant.
    
      William E. Pugh, for appellee, /
    Cited Nevitt v. Bank of Port Gibson, 6 S. & M. 513.
   Mr. Justice Clayton

delivered the opinion of the court.

In the circuit court of Yazoo county, a motion was made, after the original judgment had been entered, to revive in the name of Elijah Peale, the trustee of the bank, appointed when the judgment of forfeiture was pronounced upon quo warranto against the bank. The defendants by their attorneys opposed the motion, but the court overruled their objection, and directed the judgment to be revived in the name of Peale.

The correctness of this order is the point to be decided. Regularly a scire facias to revive a judgment ought to be sued out whenever a new person becomes interested therein, of chargeable therewith. 1 Rob. Pr. 574 ; 2 Ins. 471. Yet a scire facias is but process, a means of bringing the person against whom it is directed, into court, to show cause why the judgment should not be revived. It has been frequently decided, that a voluntary appearance of the party does away with the necessity of process. Harrison v. Agricultural Bank, 2 S. & M. 311; 1 How. 522; 4 Ib. 27. When he thus appears, he can make the same defence as if he had been served with process; and the same matter would entitle him to a continuance, if prayed for. There can be no reason for notice when the party shows that he has had all the advantage which notice could have given him.

Here he appeared, did not object to the sufficiency of the notice, but only made a general objection to the reviving of the judgment. He must be held thereby to have waived the necessity of process.

The judgment is therefore affirmed.  