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levied upon until they have been made parties to the judgment by scire facias.

see

note

(Pa.) 229.

survivors and the executor or adminis- Heirs and Personal Representatives. trator of the decedent, or his heirs and -It has been held that the writ will not terretenants in a real action or eject- lie against the heirs at law and the perment. Bolinger v. Fowler, 14 Ark. 27; sonal representative jointly. Strong v. Greer v. State Bank, 10 Ark. 456; Huey Lee, 44 How. Pr. (N. Y.) 61; Barnes v. v. Redden, 3 Dana (Ky.) 488; Calloway McLemore, 12 Sm. & M. (Miss.) 316; v. Ewbank, 4 J. J. Marsh. (Ky.) 280; Welborn v. Jolly, 4 Blackf. (Ind.) 279; Holder v. Commonwealth, 3 A. K. Walden v. Čraig, 14 Pet. (U. S.) 147. Marsh. (Kr.) 407; Murray v. Baker, 5 Compare Bank 7'. Powell, 3 Fla. 175; s. B. Mon.(Ky.) 172; Gray 2. McDowell, 5 c., 52 Am. Dec. 367. T. B. Mon. (Ky.) 501; McAfee v. Pat- But where the judgment affects the terson, 2 Sm. & M. (Miss.) 172; Zanes- title to land, the pers al representative, ville etc. Co. v. Granger, 7 Ohio 165; heirs and terretenants are all made Dowling 2. McGregor, 91 Pa. St. 410. parties. Reynolds 7'. Henderson, 2 Compare Vredenburgh z'. Snyder, 6 Gilm. (III.) 110; Graves v. Skeels, 6 Ind. lowa 39; Finn v. Crabtree, 12 Ark. 597; 107; Cailoway e'. Ewbank, 4 J. J. Marsh. Hanson v. Jacks, 22 Ala. 549; Howe v. (Kv.) 286; Mitchell 2. Smith, i Litt. Gibert, 2 Bail. (S. Car.) 306; Dibble v. (Ky.) 243; Roland V. Harbaugh, 5 Taylor, 2 Spear (S. Car.) 308; s. C., 42 Watts (Pa.) 365; Dougherty v'. Hurt, 6 Am. Dec. 368; Hamlin '. Atkinson, 6 Humph. (Tenn.) 430. Compare Lee v. Rand. (Va.) 574; Swan v. Hazen, 6 McClosky, 44 How. Pr. (N. Y.) 60. Humph. (Tenn.) 46.

Practice.- For matters of practice, Persons who claim title to real prop- form and requisites of writ, service, etc., erty by title paramount to the lien of title Scire Facias, and

94 the judgment should not be made

Am. Dec. 235. parties. Polk v. Pendleton, 31 Md. 118; As to the requirements of notice, see Morton e'. Croghan, 20 Johns. (N. Y.) Rose v. Thompson, 36 Ark. 254; Gruble 106; Lusk v. Davidson, 3 Penr. & W. v. Wood, 27 Kan. 535; Lichty z'. Hoch

stettler, 91 Pa. St. 444; Adams 1'. Roe, Personal Representatives.-A judg. 11 Me. 89; s.c., 25 Am. Dec. 266. ment may ordinarily be revived by or As to the time within which proceedagainst an executor or administrator. ings to revive judgments by scire facias Baker v. Ingersoll, 37 Ala. 503; Powell must be brought, see

Thomas t. Macon, 40 Ark. 541; Knapp v. Knapp, Towns, 66 Ga. 78; Anzell v'. Martin, 24 134 Mass. 353; Laidley v. Kline, 23 Kan. 334; Telft v. Citizens' Bank, 36 W. Va. 565; Halsey v. Van Vliet, 27 Kan. 457; Kirby v. Cash, 93 Pa. St. Kan. 474; Shepherd v. Ryan, 53 Ga. 505; Hughes v. Torrence, 111 Pa. St. 563; Ireland v. Litchfield, 22 How. Pr. 61; Laidley v. Kline, 23 W. Va. 56,5; (XY.) 178. See also Sharp v. Herrin, Shackelford 2". Miller, 18 Ala. 675; 32 Ala. 502; Commercial Bank v. Ken- Knapp v. Knapp, 134 Mass. 353. dall, 13 Sm. & M. (Miss.) 278; Gwin v. At common law there was no limitaLatimer, 4 Yerg. (Tenn.) 22; Howard tion of the time. Coombs v'. Jordan, 3 7. Randall, 58 Vt. 567.

Bland (Md.) 284; s. C., 22 Am. Dec. Heirs.-A judgment may be revived 236. against the heirs of the judgment debtor 1. Polk v. Pendleton, 31 Md. 118; In to compel its satisfaction from the lands re Fulton's Estate, 51 Pa. St. 212; descended to them. Ogden v. Smith, Dengler u. Kiehner, 13 Pa. St. 38; s. 14 Ala. 428; Burbridge v. China, 34 La. C., 53 Am. Dec. 441; Fox v. Seal, 22 An, 681; Commercial Bank v. Kendall, Wall. (C. S.) 441. 13 Sm. & M. (Miss.) 278; Wood v. According to some authorities, terreHarrison, i Dev. & Bat. (N. Car.) 356; tenants are necessary parties although Campbell v. Rawdon, 19 Barb. (N. Y.) the judgment debtor is living. Bowie 495; Lusk v. Davidson, 3 Penr. & W. v. Neale, 41 Md. 124; Doub v. Barnes, (Pa.) 229. Compare Powell v. Macon,

4

Gill (Md.) 1; Murphy v. Cord, 12 G. 40 Ark. 541. But it has been held that & J. (Md.) 182; Zerns v. Watson, il the cause of action must be proved Pa. St. 260; Chahoon v. Hollenbeck, 16 against heirs de novo. Cox v. Reed, 27 S. & R. (Pa.) 425; s. C., 16 Am. Dec. Ill. 434; Colwell v. Rockwell, 100 Pa. 587. Compare Lunsford v. Turner, 5

J. J. Marsh. (Ky.) 104;

Morton υ.

v.

St. 133.

The scire facias must issue from the court where the judgment was entered or to which the record has been removed.i

While a scire facias has been called an action for some purposes,

,2 it is not a new action, but a continuance of the old one.3 The judgment rendered is not a new one for the debt and damages, but an order that execution issue.4

Ohio 372.

Croghan, 20 Johns. (N. Y.) 106. See N. Y.) 106; Bibo v. Allen, 4 Heisk. also Von Puhl v. Rucker, 6 Iowa 187;

(Tenn.) 31: Williams v. Fowler, 3 T. B. Mon. (Ky.) Reversal or satisfaction of the origi316.

nal judgment has a like effect on the 1. Barron v. Pagles, 6 Ala. 42 2; scire facias. Eldred v. Hazlett, 38 Pa. Funderburk 10. Smith, 74 Ga. 515; St. 16. Dickinson V. Allison, 10 Ga.

557; The lien of a judgment against two Handley v. Fitzhugh, 3 A. K. Marsh. persons may be continued against one (Ky.) 562; Osgood v. Thurston, 23 of them by an amicable scire facias. Pick. (Mass.) 110; State v. Brown, 41 Edward's Appeal, 66 Pa. St. Sg. But Me. 535; Vallance v. Sawyer, 4 Greenl. ordinarily all defendants who are liv(Me.) 62; Martinez v. Vives' Succ., 32 ing must be made parties. Bolinger v. La. An. 305; State V. Kinne, 39 N. Fowler, 14 Ark. 29; Calhoun v. Adams, H. 129; Tindall v. Carson, 16 N. J. L. 43 Ark. 238; Bowie v. Neale, 41 Md. 94; Wilson v. Tierman, 3 Mo. 577; 124; McAfee v. Patterson, 2 Sm. & M. Dougherty's Estate, 9 W. & S. (Pa.) (Miss.) 593; Funderburk 7'. Smith, 74 189; s. C., 42 Am. Dec. 326; Grimke v. Ga. 515; Austin v. Reynolds, 13 Tex. Mayrant, 2 Brev. (S. Car.) 202; Gib- 544; Carson v. Moore, 23 Tex. 450; son v. Davis, 22 Vt. 374. Compare Grenell v. Sharp, 4 Whart. (Pa.) 344; Freeman 7. Batchelder, 36 Vt. 292. See also Lewis v. Oliver, I Blackf.

In Nebraska, the county court can (Ind.) 412; Clinton Bank v. Hart, 19 revive its own judgments. Dennis v. Omaha Bank, 19 Neb. 675; Hunter v. Although as against the judgment Leahy, 18 Neb. So.

debtor and his heirs or personal repreIn Oregon, only the circuit court can sentatives, the scire facias proceeding revive a judgment of a justice's court is a continuation of the original proto make it a lien on real estate. Glaze ceedings in which the judgment was v. Lewis, 12 Oreg. 347.

obtained; yet as against terretenants, 2. Ensworth v. Davenport, 9 Conn. who are entire strangers, a scire facias 390; Kirkland 7. Krebs, 34 Md. 93; intended to subject land claimed by Gedney v. Com., 14 Gratt. (Va.) 318; them to the payment of a judgment Bentley v. Sevier, 1 Hemp. (U. S.) 249; against another, must be regarded as Howard v. Randall, 58 Vt. 564.

so far a new proceeding that everything 3. Blackwell v. State, 3 Ark. 320; necessary to coexist to affect their rights Brown v. Harley, 2 Fla. 159; Denegre must appear in the writ. Bish v. Wil'. Hann, 13 Iowa 240; Challenor v. liar, 59 Md. 382. Niles, 78 111. 78; Adams v. Roe, 11 Me. Who May Revive.-An attorney who 89; s. C., 25 Am. Dec. 266; Comstock has an interest in a judgment, evidenced 7. Holbrook, 16 Gray (Mass.) III; by and embraced in the judgment may Gray v. Thrasher, 104 Mass. 373; sue for its revival. Martinez v. Vives Kirkland v. Krebs, 34 Md. 93; Eldred Succ., 32 La. An. 305. 7. Hazlett, 38 Pa. St. 16; Irwin If a fi. fa. be paid off by one of the Nixon's Heirs, ri Pa. St. 419; s. C., 51 joint defendants therein, and transferAm. Dec. 559; Ingram v. Belk, 2 red to him, he is entitled to have it reStrobh. (S. Car.) 207; Hopkins V. vived on becoming dormant in the Howard, 12 Tex. 7; Carter v. Carriger name of the plaintiff for his use. Huck. 3 Yerg. (Tenn.) 411;

s. C., 24 Am. Dec. aby v. Sasser, 69 Ga. 603. 585; Treasurer v. Foster, 7. Vt. 52; 4. Hanly v. Adams, 15 Ark. 232; Lavell v. McCurdy, 77 Va. 763; Fitz- Denegre 7. Hann, 13 Iowa 240; Murhugh v. Blake, 2 Cranch (U. S.) 37; ray v. Baker, 5 B. Mon. (Ky.) 172; Hatch 7. Eustis, i Gall. (U. S.) 160. Locke v. Brady, 30 Miss. 21; Woolston Compare Greenway v. Dare, 16 N. J. v. Gale, 9 N. J. L. 32; Tindall v. CarL. 305; Connigal ü. Smith, 6 Johns. son, 16 Ń. J. L. 94; Bullock v. Ballew,

No defence can be presented to a scire facias that might have been taken advantage of in the original action;' nor can mere errors or irregularities in the original proceedings be presented in defence of the scire facias.2 Any defence which has arisen

9 Tex. 498; Camp v. Gainer, 8 Tex. wold v. Stewart, 4 Cow. (N. Y.) 459. 372; Whitworth v. Thompson, 8 Lea The plea of coverture to a scire faci. (Tenn.) 480; Lavell v. McCurdy, 77 as to revive and continue the lien of a Va. 763. ' Compare Huston v. Ditto, judgment, entered on the warrant of at20 Md. 305; Conyngham v. Walter, 95 torney, in the bond of a married woPa. St. 85.

man, is not a denial of the existence of But where, in Massachusetts, a trial the judgment on which the scire facias justice, in an action against the admin- issued, nor an averment of the satisfacistrator of an estate, erroneously ren- tion or the discharge thereof; it is dered a judgment for damages and costs therefore inappropriate and insufficient against the estate, and the execution to prevent the entry of judgment, and issued thereon was declared illegal, an it is not error for the court to strike it order of the superior court, upon a pe- off. Coulyn V. Parker, 113 Pa. St. tition for a writ of scire facias to ob- 29. tain a new execution on the judgment, Upon a scire facias to revive a judg. that execution should issue against the ment which was served on the defendestate for the damages, was affirmed by ant and on the voluntary assignee for the supreme court upon the plaintiff the benefit of creditors of a firm of entering a remittitur for the amount of which the defendant was a member as the costs. Look v. Luce, 140 Mass. terretenant, the latter, being a mere 461.

volunteer, cannot defeat a judgment of Alimony.—The writ will not lie to revival by averring generally in an affienforce the payment of temporary ali. davit of defence that the real estate asmony where the amount due cannot be signed to him was partnership real esascertained from the record. Chestnut tate, and as such not subject to the v. Chestnut, 77 Ill. 346. But it will lie lien of a judgment against one partner; for alimony where the amount is cer- and further, that the assigned estate tain.

Morton v. Morton, 4 Cush. being insufficient to pay partnership (Mass.) 518.

creditors, no surplus would remain for 1. Calhoun v. Adams, 43 Ark. 238; individual creditors. The plaintiff in Betancourt v. Eberlin, 71 Ala. 461; such case is entitled to a judgment of Duncan v. Hargrove, 22 Ala. 150; revival, without prejudice to the subseBradford v. Bradford, 5 Conn. 127; quent determination of the respective Camp v. Baker, 40 Ga. 148; Harrison rights of partnership and individual v. Hart, 21 Ill. App. 348; Vredenburgh creditors. Kepler v. Erie etc. Co., 101 v. Snyder, 6 Iowa 39; McCutchen v. Pa. St. 602. Askew, 34 La. An. 340; Folger v. It is no defence to a scire facias to Slaughter, 33 La. An. 341; Bowen v. revive a judgment that the amount of Bonner, 45 Miss. 10; Pollard v. Eckford, the judgment has already been allowed, 50 Miss. 631; Smith v. Eaton, 36 Me. without a revivor, in a suit instituted by 298; s. C., 58 Am. Dec. 746; Stephens the personal representative for the purv. Howe, 127 Mass. 164; Riley v. Mc- pose of administering the estate, as an Cord, 24 Mo. 265; Kemp v. Cook, 6 insolvent estate, and ordered to be paid Md. 305; Moore v. Garrettsor, 6 Md. its pro rata. McIntosh v. Paul, Lea 444; NcFarland v. Irwin, 8 Johns. (N. (Tenn.) 45. See also Carter v. ColeY.) 77; Fereber v. Doxey, 6 Ired. (N. man, 12 Ired. (N. Car.) 274. Car.) 448; Dowling v. McGregor, 91 In Louisiana, lack of jurisdiction of Pa. St. 410; Barber v. Chandler, 17 Pa. the person is no defence to an action to St. 48; S.C., 55 Am. Dec. 533; Koon v. revive a judgment rendered by a court Ivey, 8 Rich. (S. Car.) L. 37; Bell v. having jurisdiction ratione materiæ. Williams, 4 Sneed (Tenn.) 196; Love Theriot v. Bayard, 37 La. An. 689. v. Allison, 2 Tenn. Ch. u; Dickson A judgment against a township may V. Wilkinson, 3 How. (U. S.) 57; May be revived by scire facias although it o. State Bank, 2 Rob. (Va.) 56; s. C., does not own real estate. Conyngham 40 Am. Dec. 726. See also Dunn v. v. Walter, 95 Pa. St. 85. Brogden, 68 Ga. 63. Compare Gris- 2. Betancourt v. Eberlin, 71 Ala.

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since the judgment was rendered may be set up in scire facias proceedings based thereon.1

The remedy by scire facias has been abolished in some States and the remedy by action on the judgment substituted.?

210.

St. 215

461; Anthony v. Humphries, 9 Ark. of what has occurred since the judg. 76; Richardson v. Walcott, 10 Allen ment was entered, the plaintiff is not (Mass.) 439; Langston v. Abney, 43 entitled, according to the terms of a Miss. 164; Bank v. Dunn, 4 Blackf. verbal agreement between the parties, (Ind.) 513; Ford v. Beckwith, 48 Ill. to have his execution. Bown v. Mor

See also Brown v. Neale, 3 Al- ange, 108 Pa. St. 69. len (Mass.) 74.

A judgment absolutely void cannot 1. Brown v. Morange, 108 Pa. St. be revived. Levy v. Calhoun, 34 La. 346; Thompson v. Hurley, 19 Iowa An. 413; In re Administrators' Board, 331; Downey v. Forrester, 35 Md. 37 La. An. 916; McFadden v. Lock117. Compare Shaw v. Boyd, 12 Pa. hart, 7 Tex. 573; Phelps v. Hawkins,

6 Mo. 197. See also Gray v'. Stuart, Nui tiel record is a good plea to a 33 Gratt. (Va.) 351; Jones v. Dilworth, writ of scire facias. Bergen v. Will- 63 Pa. St. 447 iams, 4 McLean (U. S.) 125; Hager v. Where the period of the statute of Cochran, 66 Md. 263.

limitations has elapsed from the date of If the original judgment has been re- the judgment, and no fi. fa. was issued, versed, the writ will not lie. Mills v. or, if issued, no levy was made, and no Conner, i Blackf. (Ind.) 7.

steps taken as provided by law to revive A terretenant may defend by show- the same, proceeding by scire facias is ing that the judgment was never a lien barred in some States. Siebels v. on his land. Colwell v. Easley, 83 Pa. Hodges, 65 Ga. 245. Compare Betan

court v. Eberlin, 71 Ala. 461. The pendency of an appeal with su- In a scire facias against heirs and persedeas which does not prevent the devisees to continue the lien of a failure of the judgment lien is no de- judgment entered against an executor fence to a scire facias to revive the within five years of the decedent's judgment. Merchants' Mut. Ins. Co. death, the defendants may contest the v. Hill, 17 Mo. App. 590; Farrelly v. debt, not the lien. Colwell v. Rockwell, Cross, 10 Ark. 404.

100 Pa. St. 133. Where the judgment debtor, on the Discharge in bankruptcy is a proper order to show cause, made affidavit defence to scire facias to revive a that the judgment was paid and satis- judgment, and if not set up the defendfied, it was held error to revive it with- ant will be concluded by a judgment of out hearing testimony. Garrison revival. Thomas v. Towns, 66 Ga. Aultman, 20 Neb. 3u; Cowan v. 78; Murphy v. Crawford, 114 Pa. St. Shields, i Overt. (Tenn.) 64. See also 496. Hartman v. Alden, 34 N. J. L. 518; 2. Humiston v. Smith, 21 Cal. 129; Seymour v. Hubert, 83 Pa. Št. 346. Hughes V. Shreve, 3 Metc. (Ky.) 547;

Upon the trial of a scire facias to Alden v. Clark, 11 How. Pr. (N. Y.) revive a judgment, it is competent to 209; Thurston v. King, I Abb. Pr. (N. show by parol testimony that by reason Y.) 126.

150;

St. 31.

V.

JUDICIAL NOTICE——(Şee FOREIGN LAWS; NOTICE). 1. Definition, 151.

13. Municipal Ordinances, 168. 2. Generally, 151.

14. Geographical Facts, 169. 3. Public Functionaries, Seals and 15. Historical Facts, 174. Acts of State, 152.

16. Selection of Officers, 179. 4. Public Elections, 154.

17. Official Signatures and Seals, 181. 5. Public Statutes, 154.

18. Judicial Proceedings and Terms of 6. Public Treaties, 160.

Courts, 182. 7. Public Institutions, 161.

19. The General Course of Nature, 8. Constitutional Law, 161.

195. 9. Law of Nations, 162.

20. Facts of Uniform Occurrence, 196. 10. Foreign Laws, Customs; Laws of 21. Facts Generally Occurring in the Sister States, 163.

Usual Course of Life, 199. 11. General and Local Customs, 165. 22. Cases in which Judicial Notice 12. Private and Special Statutes, 167.

Was Refused, 200.

1. Definition.— Judicial notice is the exercise, by courts, of knowledge of facts of uniform natural occurrence, immemorial usage, historical sanction, or general notoriety; and, when admissible, so recognizing and acting upon them without averment or proof.

2. Generally.—Courts will usually take notice of whatever ought to be generally known or generally ascertainable within the limits of their jurisdiction. The general principle upon which this class of facts is received, without averment or proof, is that the court knows; and if it is not sufficiently advised, the fact may be ascertained by special enquiry and reference to any authentic means of knowledge.

The judges do not assume any private or technical information of the matter, but they simply recognize the fact as being already sufficiently established. When such fact is of universal application it will be judicially noticed, generally; but where its operation is absolute within certain limitations, it will only be recognized within the jurisdiction to which the same extends. Thus impressed with absolute verity, such facts may be embraced in instructions to juries without infringing upon their province of determining issues of fact. While the rules governing the exercise of this peculiar power by the courts are founded in well settled principles of the law, the subjects requiring such determination are so various and diverse in character, it would seem, those rules cannot, in every instance, be made strictly to apply, and the decision must frequently depend upon the particular circumstances in such

The admissibility of those classes of facts, which are in their nature official, political,

1. Brown v. Piper, 91 U. S. 37; I subject of the realm may fairly be preGreenleaf's Ev. (14th ed ), 6.

sumed to be acquainted with them; and General Principles Upon Which Facts partly, that the matters so noticed are Are Judicially Noticed.—The principle generally quite collateral to and unupon which certain matters are judi- connected with the point in issue, and cially noticed, without any proof being are of such a kind that there is no risk required in respect to them, appears in dispensing with the strict formal to be partly, that they are of such proof, whereas, in requiring it there general and public notoriety that every might be great inconvenience by reason

cases,

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