Cooper v. May — 1 Del. 18

Majority

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DAVID D. COOPER and Wife vs. THOMAS MAY.

Headnote

A fi. fa. cannot issue on a judgment before a justice of the peace, after the death of deft, without a sci. fa.

It seems that a judgment may be kept alive by a ji. fa., issued within the year and day. and by regular continuances by vice comes afterwards, as against the original party.

And on the deft’s, death a fi, fa. may issue, if by relation it can be tested previous to the death.

But after deft’s, death and one term elapsed, no execution can issue without a previous sci. fa.

Certiorari. Judgment before a justice of the peace in an action at the suit of Thomas May vs. Nathaniel D. Hasten. An execution

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issued in 1826, on which a sale was made, but no part applied to that execution. Hasten died in 1826, and his widow administered, and

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afterwards intermarried with Cooper. An alias fi. fa. was issued in 1829.

This was the error assigned, that the alias fi. fa. issued several years after the defendant’s death, and without any sci. fa.

The case was argued by Frame for the plff. in error, and Johnson for deft, in error.

After consideration, the Chief Justice ^delivered the following opinion:—

—“On the 13th May, 1826, judgment was obtained against Nathaniel D. Masten, by default, for the sum of $50. On the same day execution issued, returnable 13th Nov. 1826, and was delivered to a constable; who, on the 22d May, 1827, returned the same with an inventory of the goods and chattels levied on and appraised to $75 84, subject to prior executions, and indorsed ‘goods sold by D. Mason, constable, for $122 37, and applied to prior executions.’ Cooper intermarried with the widow and admr’x. of N. D. Masten, who died on the 28th May, 1826. On the 13th Oct. 1828, an alias execution issued.

The exception taken in this case is, that the judgment ought to

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have been revived by scire facias against the adm’rx., before issuing the alias fi. fa., to take the goods in the hands of the adm’rx. After judgment, if no execution be issued within the year and day, it is necessary to revive the judgment by scire facias, and it is irregular to issue a fi. fa. or other execution without such proceeding, unless a stay be given, or the plff. be delayed by writ of error or injunction. The reason why the plff. is put to his sci. fa. after the year, is because where he lies by so long after his judgment, it shall be presumed that the judgment is executed, or that the plff. has released the execution; and, therefore, the deft, is not to be disturbed without being called upon, and having an opportunity of pleading that the judgment is executed, or the release, or showing other cause, if he can, why execution should not be issued against him. It has been said that execution may be sued out, after the year, without a sci. fa. merely upon awarding the writ upon the roll within the year, and continuing it down by vice comes non misit breve to the time of serving the writ. Carth. 283. However, it seems questionable, whether the writ of execution ought not to be sued out within the year, and returned and filed, to warrant the entry of continuances; for in a subsequent case, it was adjudged that an execution cannot be continued on the roll unless it be returned and filed. 2 Wils. 82. Even actually suing out an execution and continuing it by vice comes non misit breve, is stigmatized by Lord Holt as a usu rer’s trick. 2 Lord Raymond, 208; 2 Saunds. 72, 1 Stra. 100; 1 Crompt. Prac. 344.

But it is not necessary in this case to decide the question, whether it is necessary to sue out a fi. fa. and have it returned and filed, in order to have the continuances entered so as to entitle the plff. to his execution at any time afterwards without a sci. fa.; because, in this case, a totally different question presents itself; not whether by suing out execution and having it regularly continued down upon the roll, or by merely awarding the writ, and continuing it in the same manner,- plff. may, at any time after the year, take out execution against the deft., but whether in such case, it is regular to take out an execution against a deceased person where a term has intervened since his death. All that these continuances can effect, is to prevent the judgment from expiring, so as to obviate the necessity of a scire facias against a party to the judgment. If judgment is recovered, and the deft, dies in one month afterwards, if a term is suffered to elapse, so that the execution must be tested after his death, such execution would be irregular; for the rule is, that when a new person, who was not a party to a judgment, derives benefit by, or becomes chargeable to, the execution, there must be a sci. fa. to make him a party. 2 Saund. 6, n. 1; 1 Lord, Raymond, 245; 1 Salk. 319-20; 2 Lord Raymond, 768; 2 Inst. 471. So when the deft, dies in term time and execution is taken out immediately after the term, yet as it is necessary to test the execution as of the last day of the term, a day posterior to the death of deft, a scire facias is necessary to revive the judgment against- the administrator. 6 T. Rep. 368. Lord Kenyon in this case says ‘great injustice may be done to ere

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ditors if we permit the execution to stand. ’ The plff. should have sued out a scire facias to revive the judgment against the deft’s, executor. The moment a party is dead, the rights of his creditors are fixed. An execution once begun should proceed. I understand by this, that where chattels or other property are seized in execution, you may proceed to complete the execution at any time after, and that the death of neither plff. nor deft, will stop the execution. But I have met. with no case where you can take out execution which must be tested after the death of the plff. or deft. A scire facias is necessary in every such case. But the case under consideration is free from all difficulty. An execution was issued in the lifetime of Hasten and completed. No benefit it is true, was derived from that execution. • About two years and a half after his death, and probably after the goods were all administered, an alias fi. fa. issued against the dead man, commanding the constable to levy the debt of his goods and chattels, and for want of such goods and chattels to take his body, and commit him to the common jail of the county. Justices of the peace have no stated terms; all their process is continued by adjournment to a special day; the fiction of ‘continuances upon the roll’ cannot exist, because it is not possible. The law will not suppose any thing which is not possible. There had been therefore, in this case, no continuance of the execution for more than two years after the death of Hasten, nor could there in the nature of things, be such a continuance. Every execution from a justice takes effect from its date; it has no relation to a prior time; and in no case can an execution issue against a deft, after his death. This is contemplated by the Act of Assembly, (Digest 347). A judgment does not expire under three years, unless the deft, dies within that time; and in such case, a sci. fa. is necessary. If execution be sued out after a year and a day without a scire facias, it is not void, but voidable only by writ of error. 2 Saund. 6, n.; 3 Lev. 404; 1 Salk. 261. A certiorari is more extensively remedied than a writ of error.

Frame for plff. in error.

Johnson for deft, in error.

The alias fi. fa. is irregular, and the proceedings must be reversed.”

Black and Robinson, Justices, concurring.

Judgment of reversal