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Scire Fieri Inquiry

facias, executor, writ, practice and sheriff

SCIRE FIERI INQUIRY. In English The name of a writ formerly used to recover the amount of a judgment from an executor.

The history of the origin of the writ is as follows: When on an execution de bowls testatoris against an executor the sheriff returned nuita bona and also a devastavtit, a fierti facias de beau propriis might formerly have been issued against the execu tor, without a previous inquisition finding a devasta vit and a scire facias. But the most usual practice upon the sheriff's return of nu//a bona to a fieri facias de bonis testatoris was to sue out a special writ of fierti facias de Donis testatoris, with a clause in it, "et si tibi constare poterit" that the ex ecutor had wasted the goods, then to levy de Donis propriis. This was the practice in the king's bench till the time of Charles I.

In the common pleas a practice had prevailed in early times upon a suggestion in the special writ of fort facias of a devastavit by the executor, to direct the sheriff to inquire by a jury whether the executor had wasted the goods, and if the jury found he had, then a scare facias was issued out against him, and, unless he made a good defence thereto, an execution de boats propriis was award ed against him.

The practice of the two courts being different, several cases were brought into • the king's bench on error, and at last it became the 'practice of both courts, for the sake of expedition, .to incorporate the ficri facias inquiry, and scare facias, into one writ, thence called a seine fort inqutiry,—a name compounded of the first words of the two writs of scire facias and fieri factias, and that of inquiry, of which it consists. '

This writ recites the fierti facies de bontis testa toris sued out on the judgment against the ex ecutor, the return of nuna bona by the sheriff, and then, suggesting that the executor had sold and converted, the goods of the testator to the value of the debt and damages recovered, commands the sheriff to levy the said debt and damages 'of the goods of the testator in the hands of the executor. if they be levied thereof, but if it should appear to him by the inquisition of a jury that' the executor had wasted the goods of the testator, then the sheriff is to warn the executor to appear, etc. If the judgment had been either by or against the testator or intestate, or both, the writ of fiert facias recites that fact, and also that the court had adjudged, upon a scire facias to' revive the judgment, that the executor or administrator should have execution for the debt, etc. Clift, Entr. 659 ; Lilly, Eutr. 664.

Although this practice is sometimes adopt ed, yet the most usual proceeding is by ac tion of debt, on the judgment, suggesting a devastavit because in the proceeding by scire fteri inawirp the plaintiff is not entitled to costs unless the executor appears and pleads to the scire facias; 1 Saund. 219, n. 8. See 2 Archb. Pr. 934.