President of Bank of New-York v. Eden — 17 Johns. 105

Majority

p. 93

The President, Directors & Co. of the Bank of New-York against M. Eden.

Headnote

Where a judg-™ntan'd under tVKnty years’ mast appb t0 the loTiuea'Sre /«⅛«, supported by an affidavit of its be-|"fh™i’uatid;™dl ⅛ moreSThan must be service of ⅛ notice of or a flow Where a judgment is above yca¿ coun'hfve dií crelio1’10 &ra.nt application for a

IN this, and eight other causes, between the same parties, judgments were entered up and docketed, in favor of the plaintiffs, against the defendant, in 1S00 and 1801, amounting together to about 17,000 dollars; but no executions had.been issued thereon. The defendant was duly discharged from his debts, on the 20th of August, 1801, under the insolvent act of ihe 20th of Maith, 1788.

M. S. Wilkins, for the plaintiffs,

at the last term, moved for leave to issue writs of scire facias to revive the judgments, in order to take out executions thereon. He read affidavits of the due service of notice of the motion on the defendant; and that the judgments were now justly due, and remained unpaid and unsatisfied ; and that the defendant #was living. He cited 6 fine. Abr. 108. 2 Bl. Rep. 995. Lansing v. Lyons, 9 Johns. Rep. 84 . 1 Inst. 290. b. x

Burr, contra,

contended, that the application ought not to be granted. He said the statute of Westminster 2d had not been re-enacted in this country; and that a scire facias was, therefore, a creature ot the court, and subject to its control. It is agreed, both in England and here, that, after ten years, a scire facias cannot issue, as of course, or at the discretion of the court, but a motion must be made, founded on

p. 94

affidavit, or notice, to the defendant, to show cause. If he is to show cause, as outlawry of plaintiff, release, or payment, and the facts are denied, the scire facias will be refused. It would be absurd to call on a party to show cause, unless the court felt themselves authorized to interfere in his behalf.

In the present ease, the facts are not denied. The defendant has obtained a regular discharge under the insolvent act of 1788. The court can now decide the question, as to the validity of that discharge, as well as to put the parties to a suit, and to the expense of pleading. By allowing a scire facias, the court will admit that the decision of the Supreme Court of the United States (Sturges v. Crowninshitld, February, 1819.) has annulled the insolvent act of 1788, since which act landed property, to an immense amount, has passed through the hands of insolvents.

The English insolvent acts give a scire facias, as to the future acquisitions of the debtor. But the bankrupt law of England, to which our insolvent act of 1788 is analogous, gives no such process. There is no process to be found, of a scire facias issued against a debtor who had obtained a regular discharge.

Where a judgment is above ten years’ standing, the plaintiff must apply to the court, for leave to issue a scire facias, supported by an affidavit, that the judgment remains unsatisfied. (2 Salk. 598. Hardisty v. Burney.) If the judgment be of more than twenty years’ standing, the plaintiff must give notice of the motion, with a copy of the affidavit, to the defendant, or move for a *rule to show cause, why a scire facias should not issue. In the latter case, the court would have a discretion over the question, to deny the motion, or not; but where the judgment is less than twenty years old, they have no power to refuse the application. We have no settled rule of practice, different from that of the King’s Bench in England, and, therefore, adopt it. (2 Tidd’s Practice, 982. 1000. 1007.) Though we may regret the consequences of this decision, yet we must be bound by the established rules of law.

Motion granted,^[1]

(a) (a) Before the statute of Westminster 2d, 13 Edw. I. e. 45. if the plaintiff in a personal action had, after obtaining judgment, lain quiet for a year, he was put to a new action on the judgment. This statute was re-enacted by the legislature. (Sess. 10. ch. 50. s. 34. 12th March, 1787, 1 N. R. L. 79. 2 Revised Statutes, 576. § 1.) In Coysgame v. Fly, (2 Bl. Rep. 995.) it is said that the Court of King’s Bench, on a judgment of twenty years old, gave leave (according to a precedent said to have been settled nine years before) to an administrator of the plaintiff, to sue out a scire facias to revive the same ; but that no execution should be taken out, until either the sheriff made an actual return of scire feci, or an affidavit was made and filed, of personal notice on the defendant, of suing out the scire facias. Leave was given, in Bagnall v. Gray, to take out a scire facias on a judgment of ten years’ standing, but, according to a precedent settled 6 Geo. III. in Yarker v. Reyneldson, no execution was to *95 issue unless on a retara of scire feci, or on affidavit of personal notice to the defendant. (2 Bl. Rep. 1141.)