Mary Swift would have had, if she had never assigned either of the judgments, but had levied under the execution against the foot of each respective judgment or judgments, statute staple or statute merchant, so assigned, for all which endorsements, entries, and affidavits, upon each respective memorial, the sum of six shillings and eight-pence shall be paid and no more. "And be it further enacted, that from and after such time as such memorial or memorials of such assignment or assignments shall be entered on such roll as aforesaid, it shall or may be lawful for the assignee or assignees of such judgment or judgments, statute staple or statute merchant, his, her or their executors, administrators or assigns, and for no other person or persons whatsoever to revive such judgment or judgments, statute staple or statute merchant, from time to time, in his or their own name or names, and take out one or more execution or executions on the same, in the name or names of such assignee or assignees, his, her or their executors or administrators, and to sue forth execution or executions thereon, reciting the special matter, and also to discharge or release the same and also in his, her, or their own name or names, to enter satisfaction on the record of such judgment or judgments, statute staple or statute merchant, in as full and ample manner, to all intents and purposes, as if the conusee or conusees of such judgment or judgments, statute staple or statute merchant, his, her or their executors or administrators could or might do; and that the conusor or conusors of such judgment or judgments, statute staple or statute merchant, his, her, or their executors, administrators or assigns, may, upon payment to such assignee or assignees, plead payment specially to such assignee or assignees; and that such assignee or assignees, their executors or administrators may, from time to time, assign the same over in manner aforesaid, and such assignment or assignments shall be proved and registered in the respective offices in manner as aforesaid; and such assignee or assignees may revive and sue out execution or executions in their own name or names, and discharge and acknowledge satisfaction on such judgment or judgments, statute staple or statute merchant, in manner aforesaid, any law, usage, or custom to the contrary in anywise notwithstanding. "Provided always, that the conusor or conusors of such judgment or judgments, statute staple or statute merchant, his, her or their heirs, executors or administrators, shall have the George Purdon on the judgment against him: and having been thereby satisfied the amount of that execution, and entered satisfaction on the record of that judgment, had issued a scire facias against Robert Purdon to revive the judgment against him, in order to levy the amount of that judgment also by an execution grounded upon it. That it must be admitted that the law does not allow this; it being a clear well understood rule of law, that where a party has once had full execution and satisfaction, he shall never afterwards have a new execution for the same cause. That this holds as well in trespass as in debt, and as well where several parties are sued by several actions in several Courts, as where they are sued in the same Court, either by several actions or by one action, and, consequently, as well where several judgments are obtained against several, as where one judgment is obtained against several, for same remedy and defence, both in law and equity, against the assignee or assignees of such judgment or judgments, statute staple or statute merchant, or his, her or their representatives, which he, she or they could or might have had against the conusee or conusees of the same, his, her or their representatives, in case no such assignment or assignments had been made." By an act passed (25 Geo. 2, c. 14) to explain and amend the last-mentioned act, it was enacted as follows: "That every assignee or assignees of every judgment or judgments, statute staple or merchant, that are now assigned or which hereafter shall be assigned on record, by virtue of the said act, his, her or their executors, administrators or assigns, may not only revive such judgment or judgments, statute or statutes from time to time in his, her or their own name or names, and take out one or more execution or executions thereon, for the recovery of his, her, or their demands thereon, as by the said Act, among other things, is directed; but that also such assignee or assignees of such judgment or judgments, statute or statutes, now assigned or hereafter to be assigned by virtue of the said Act, his, her, or their executors, administrators, or assigns, may bring an action of debt, or otherwise proceed or sue thereon in his, her, or their own name or names, and be considered to all intents and purposes in the place, stead and condition, either in law or equity, of the assignor or assignors, any thing in the said Act contained or otherwise to the contrary in anywise notwithstanding." the same cause of action. That in debt, if several actions are sued in several Courts, or in the same Court, against several obligors, who are jointly and severally bound by the same deed; in trespass, if several actions are sued against the several trespassers, either in the same or in different Courts, for one and the same trespass; in either of these cases, if the plaintiff has once had execution and satisfaction against one, he shall never afterwards have execution against the others. That when the record of the judgment on which execution has been had, shows that two persons are bound for the same debt, the proper course is to enter upon that record an order or direction that only one execution shall be had upon it, unica executio, which there means one execution with satisfaction; and this is the course not only when there is a joint judgment against the two, but also when there are several judgments against them; and this, although the judgments are had upon several præcipes, provided there is only one original writ; for then the whole proceeding is considered as one record. But if the several judgments are had in several actions, commenced by several writs, and so the records are several, and it does not therefore appear by the record of the judgment, on which execution has issued, that two persons were bound for the same debt, and that the judgment was recovered upon that obligation, no such order or direction can be entered. If several judgments are had upon one record, as, for instance, Where several when they are had upon several præcipes in one original writ, judgments on one record. and a direction for a unica executio is entered, as it ought to be, on the record, and the plaintiff having issued such execution against one, and obtained full satisfaction entered on record, proceeds to issue an execution also against the other, within a year and a day from the judgment, such execution would, it was Where not a apprehended, have been always supersedable, on a summary since judgment. year and a day application to the Court; for, in that case, the defendant could Summary applinot plead, not having any day in Court, and the facts being apparent on the record, there could be no occasion for an audita querela, to enable the Court to take cognizance of them. But if Where more the plaintiff had waited until the year and day elapsed, and then and a day since proceeded by scire facias, to warn the defendant to show cause judgment. why he, the plaintiff, should not have execution on the judgment Defendant against him; the defendant having thereby a day in Court, could warned. only bring the matter before the Court by plea to the scire facias for if he did not do so, but suffered execution to be Omission to awarded against him, he would be estopped from showing, either plead to scire by audita querela or otherwise, that it ought not to be awarded cation. than a year Scire facias. facias. Scire facias. Defendant not warned. against him. That if, however, instead of warning the defendant to appear and plead to the scire facias, the plaintiff caused it to be revived on nihils, and thereby obtained an award of execution, on the defendant's apparent though not actual default (a), the defendant had then (that is anciently, and before the Courts adopted the practice of interposing on motion, and a disclosure Audita querela. of the facts by affidavit), no remedy but an audita querela (6); (a)" Formerly it was the constant practice, where you did. not intend to summon the defendant, or, in other words, to let him know of scire facias having been sued out, or where you could not summon him, to have issued a writ of scire facias; and having procured the sheriff's return of nihil, you sued out an alias scire facias, and procured the sheriff's return of nihil to that writ also, upon which return you might, if the defendant did not appear, have obtained a judgment against him, two nihils being deemed equivalent to a scire feci. Now, however, by 81st rule of Hilary Term 2 Will. 4, no more than one scire facias is in any case necessary, whether the defendant be actually summoned thereon, or not. But no judgment can be signed for not appearing to scire facias, unless the defendant has been summoned, or, if not summoned, then, unless eight days have elapsed since the return of the scire facias, and you have obtained the leave of the Court, or a judge, to sign the judgment. The object of this rule is to make it the plaintiff's duty to give notice of the scire facias to the defendant, as above mentioned, either by summons, if the defendant resides in the county, into which the scire facias issues, or by notice, if he resides elsewhere; and if neither of these things can be done, the plaintiff must show by affidavit that he has attempted to summon the defendant or give him notice, and show what endeavours he has made for that purpose."-Archbold's King's Bench Practice, vol. ii. p. 612. (b)" Audita querela is for a person, who is like to be in execution, or is actually in execution, upon a statute, recognizance, or judgment, to set aside the execution, by suggesting some just cause since the judgment, to discharge himself from the execution; as arbitrement, release, &c." Wood's Institutes, p. 558; see also ibid. p. 608.-Blackstone says (Comment. vol. iii. p. 406), "In these and the like cases, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it, (either at the beginning of the suit, or puis darrein continuance, which must always be before judgment), an audita querela lies in the nature of a bill in equity, to be relieved against the oppres for he had no longer a day in Court to plead, and, by the record of scire facias, appeared to have in effect admitted, by his own default, that he had no cause to show why execution should not be awarded against him. two records. Where not a year and a day since judgment. So if the two judgments were on several actions in several Where several Courts, or in the same Court commenced by several writs, judgments on and [consequently] the record of the judgment on which the first execution issued, did not disclose the fact of the judgment being recovered on a joint and several obligation: and the plaintiff being satisfied on record by an execution on that judgment, afterwards proceeded within the year and day, to issue execution on the other judgment, the defendant on that execution could not, anciently, have obtained a supersedeas on motion, because the matter was not apparent to the Court on the record of the judgment on which the first execution was issued; nor could he plead, not having a day in Court: he could therefore only bring the matter before the Court by audita querela, than a year and which, in that case, was therefore his proper remedy; and in like manner, for the reason before given, if the plaintiff, after the year and day, revived the judgment against him on nihils, he was also necessarily put to his audita querela. That the question, however, now arose, upon which there was not found any authority in point, viz. if the plaintiff, in such a case [of two judgments in several actions], proceeded, after the year and day, to revive the judgment against the other coobligor, by scire facias, not on a return of nihils, but by causing him to be warned to show cause why execution should not be awarded against him (by which the defendant has a day given him to plead), whether he may not thereupon plead the matter of defence, which it was clear he has or whether he be estopped or precluded from doing so, and is, therefore, put to his audita querela, in order to bring that matter to the cognizance of the Court: that this question was of the more importance, because it was apprehended to be clear, that if he may plead sion of the plaintiff." He adds, it "is a writ of a most remedial nature, and seems to have been invented, lest in any case there should be an oppressive defect of justice, where a party who bath a good defence is too late to make it in the ordinary forms of law. But the indulgence now shown by the Courts in granting a summary relief upon motion in cases of such evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice." Audita querela. Where more a day since judgment. Scire facias, but defendant not warned. Audita querela. Scire facias, and defendant warned. Question of defence by plea, or by audita querela, or by motion. |