Home >> Cyclopedia Of Knowledge >> Proclamation to Sheriff Scotland >> Scire Facias

Scire Facias

execution, judgment, party, proceedings and appear

SCIRE FACIAS, a writ sued out for the purpose either of enforcing the exe cution of, or of vacating, some already existing record. It directs the sheriff to give notice (" Scire facias," whence the name) to the party against whom it is obtained to appear and show cause why the purpose of it shall not be effected. A summons to this effect should be served on the party, whose duty then is to enter an appearance, after which a declaration is delivered to him, reciting the writ of scire facias. To this he may plead, or demur, and the subsequent proceedings are analogous to, and in fact are in law considered as an action. If the party cannot be summoned, or fail to appear, judgment may be signed against him. The proceedings under a scire facias are resorted to in a variety of cases. They may be divided into 1. Those where, the parties remaining the same, a scire facias is necessary to revive or set in operation the record.

2. Those where another party seeks to take the benefit of it, or becomes charge able, or is injured, by it.

In cases where a year and a day have elapsed since judgment has been signed, and nothing (such as a writ of error, an injunction, &c.) has existed to stay fur ther proceedings, it is a legal presump tion that the judgment has either been executed, or that the plaintiff has re leased the execution. In such case exe cution cannot issue against the defendant until he has had an opportunity, by means cf the notice given him under a scire facias, of appearing and showing any cause which may exist why execution should not issue against him. If the judgment has been signed more than ten years, a scire facias cannot issue unless with the permission of the court or a judge ; and by the statute 3 & 4 Wm. IV.

c. 27, 40, proceedings appear to be limited to a period of twenty years. When a plaintiff, having had execution by elegit, under which he obtains pos session of a moiety of the rents and profits of the defendant's land, has had the debt satisfied by payment or from the profits of the land, scire facias may be brought to recover the land.

3. The cases of more ordinary occur rence under the second head are those where one of the parties to an action becomes bankrupt, or insolvent, or dies, or, being a female, marries, or where it is sought to enforce the rights of a plain tiff against the bail to an action, or to set aside letters patent. If a woman obtain a judgment, and marry before execution, the husband and wife must sue out a scire facias to have execution. And if judgment is obtained against a woman, and she marries before execution, a scire facias must be brought against her and her husband before execution can be ob tained. A scire facias is the only pro ceeding for the purpose of repealing let ters patent by which the king has made a grant injurious to some party, as where he has granted the same thing which he had already granted to another person ; or a new market or fair is granted to the prejudice of an antient one, &c. TL king may have a scire facias to repeal his own grant, and any subject who is injured by it may petition the king to use his name for its repeal. A man may have a scire facias to recover the money from a sheriff who has levied under a fieri facias and retains the proceeds.

(2 Wins. Saund. 71 ; Tidd's Practice, Archbold's Practice.)