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Sci Re F Aci as

judgment, writ, patent, repeal, scire, suit, facies, execution and original

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SCI RE F ACI AS (Lat. that you make known): The name of a writ (and of the whole proceeding) founded on some public record. Fost. Fed. Pr. 301.

A judicial writ at common law to revive judgments or to obtain satisfaction thereof, from sureties upon bail or other recogniz ances taken in the proceedings in which the judgment is rendered. Egan v. IL Co., 163 Fed. 344.

Public records, to which the writ is ap plicable, are of two classes, judicial and non juacial.

Judicial records are of two kinds, judg ments in former suits, and recognizances which are of the nature of judgments. When founded on a judgment, the purpose of the writ is either to revive the judgment, which because of lapse of time—a year and a day at common law, but now varied by statutes— is presumed in law to be executed or releas ed, and therefore execution on it is not al lowed without giving nqtice, by scire facias, to the defendant to come in, and show if he can, by release or otherwise, why execution ought not to issue ; or to make a person, who derives a benefit by or becomes chargeable to the execution, a party to the judgment, who was not a party to the original suit. In both of these classes of cases, the purpose of the writ is merely to continue a former suit to execution. When the writ is founded on a recognizance, its purpose is, as in cases of judgment, to have execution; and though it is not a continuation of a former suit, as in the case of judgments, yet, not being the com mencement and foundation of an action, it is not an original, but a judicial, writ, and at most is only in the nature of an original ac tion. When founded on a judicial record, the writ must issue out of the court where the judgment was given or recognizance entered of record, if the judgment or recognizance re mains there, or if they are removed out of the court where they are ; 3 Bla. Corn. 416, 421 ; Hanson v. Barnes' Lessee, 3 Gill & J. (Md.) 359, 22 Am. Dec. 322; 2 Wms. Saund. 71. See Challenor v. Niles, 78 Ill. 78.

Scire facias to revive a judgment being a continuation of the suit, jurisdiction there on is in the court where the judgment was rendered, regardless of the residence of the parties; Schmidtke v. Miller, 71 Tex. 103, 8 S. W. 638. A scire loofas tct revive a judg ment being regarded in Pennsylvania as a substitute for an action of debt on the judg ment, a judgment so revived without service or appearance has no binding force as against a defendant who resides in another state; Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837; and it is held that when judgment is thus revived the plaintiff can not recover in another state thereon after the limitation has ruu against the original judg ment; Betts v. Johnson, 68 Vt. 549, 35 Atl.

489. A judgment may be revived at common law on a writ and alias writ of sci. fa. with return of nihil as to each ; Kratz v. Preston, 52 Mo. App. 251; but such revival on two re turns of nihil operates merely to keep in force the local lien and does not stop the running of the statute of limitations in an other state where the defendant resides ; Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837.

Non-judicial records are letters patent and corporate charters. The writ, when founded on a non-judicial record, is the commence ment and foundation of an original action ; and its purpose is always to repeal or forfeit the record. Quo waffranto is the usual and more appropriate remedy to forfeit corporate charters and offices ; and scire facies, though used for that purpose, is more especially ap plicable to the repeal of letters patent. When the crown is deceived by a false sug gestion, or when it has granted anything which by law it cannot grant, or where the holder of a patent office has committed a cause of forfeiture, and other like cases, the crown may by its prerogative repeal by scire facies its own grant. And where by several letters patent the self-same thing has been granted to several persons, the first patentee is of right permitted, in the name and at the suit of the crown by scire facies, to repeal the subsequent letters patent ; and so, in any case of the grant of a patent which is inju rious to another, the injured party is per mitted to use the name of the crown in a suit by scare facies for. the repeal of the grant. This privilege of suing in the name of the crown for the repeal of the patent is granted to prevent multiplicity of suits; 2 Wms. Saund. 72, notes. A state may by scirc facies repeal a patent of land fraudulently obtained; Carroll's Lessee v. Llewellin, 1 H. & McH. (Md.) 162. See REPEAL; PATENT. Scire facies Is also used by government as a mode of ascertaining and enforcing the for feiture of a corporate charter ; 3 Wood, Ry. L. 208, n.; where there is a legal existing body capable of acting, but who have abused their power ; it cannot, like quo warranto (which is applicable to all cases of forfei ture), be applied where there is a body cor porate de facto only, who take upon them selves to act, but cannot legally exercise their powers. In scire facias to forfeit a corporate charter, the government must be a party to the suit ; for the judgment is that the par ties be ousted and the franchises be seized into the hands of the government ; 2 Kent 313 ; 10 B. & C. 240 ; Centre & K. Turnpike Road Co. v. M'Conaby, 16 S. & R. (Pa.) 140; Regents of University of Maryland v. Wil liams, 9 Gill & J. (Md.) 365, 31 Am. Dec. 72. See Quo WARRANTO.

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