CHAMBERS against CARSON, 2 Whart. 365

The opinion of the court was delivered by Kennedy, J. Upon a rule to show cause why the writs of scire facias, together with all the proceedings thereon, including the judgments of revival, should not be set aside, it is objected,— First. That the writs of scire facias to revive the original judgment in the scire facias on the mortgage, ought to have been sued out of the Court of Common Pleas of Dauphin County, inasmuch as the mortgaged land lies in that county, ana the original scire facias upon the mortgage was sued out from that court.

That this course ought to have been adopted and pursued, because the act of 1705, authorising the proceeding by scire facias upon a mortgage, requires the writ to be sued out of the Court of Common Pleas, in which the mortgaged land lies; and again, because the act of 1799, establishing the Circuit Courts, and abolishing the Courts of Nisi Prius, in the several counties of the state, except the county of Philadelphia, seems to provide for and authorise it.

The original writ of scire facias upon the mortgage here, was sued out of the Court of Common Pleas of Dauphin County, in strict conformity to the act of 1705 ; but this act has no reference to, and contains no direction for suing out writs of scire facias, for the purpose of reviving judgments obtained in the writs of scire facias thereby authorised to be sued out upon the mortgages themselves.

As to the court from which the scire facias to revive the judgment should be sued out, in case it became necessary, this was left to be regulated and directed by the principles of the common law, which require that it shall be from the court where the judgment shall be obtained, and still remains. At the time when the scire facias was sued here upon the mortgage, it was competent for either party, before the trial in the Common Pleas, to remove such cause for that purpose, into the Supreme Court. This continued to be the case until the act of 1799, above alluded to, was passed.

Anterior to this, the Supreme Court was held only in the city of Philadelphia, but had jurisdiction over the whole state. Courts of Nisi Prius, however, were held by the judges thereof, in the several counties throughout the state, for the purpose of trying all issues of fact joined in causes removed therefrom, and receiving the verdicts of juries thereon.

The prothonotary of the Supreme Court attended in person or by deputy, the courts of Nisi Prius, with all the papers on file in his office, appertaining to the cause, which might be wanting on the trial of it by the jury; and took charge of the verdict when given in at Nisi Prius, which was produced by him to the Supreme Court, when sitting in bank, where it was acted upon by the court, in either setting it aside and granting a new trial, in arresting the judgment, or entering the judgment of the court upon it.

If the verdict and judgment happened to be in favour of the plaintiff, he was entitled, if he chose, to have execution upon the judgment, which was sued out of the Supreme Court holden at Philadelphia, directed generally in the first instance to the sheriff of the county, whence the cause had been removed: and, in such case as the present, could not, at any time, be directed to the sheriff of any other, as it could only be against the mortgaged land, which could not be sold under the levari facias, by the sheriff of any other county than that in which the land lay.

So, when the plaintiff sued out a ca. sa. with a view to proceed afterwards against the special bail, I take it that it was requisite, that the ca. sa. should be directed to the sheriff of the county, from which the cause had been removed into the Supreme Court, as it was fairly presumable the defendant resided there, and would not be found elsewhere. If the plaintiff however, neglected taking out execution for the space of a year and a'day, after obtaining his judgment, he could not regulai’ly do so then, -without reviving it first, by scire facias quare er.ecutionem non.

This being a judicial writ, could only be sued out of the court where the judgment remained upon which it was to be grounded. But it is argued, that by the act of 1799, the judgment in the scire facias upon the mortgage, ought to have been transferred to the Circuit Court of Dauphin County, as soon as this latter court came into being, and upon the annihilation of it, then to the ■Court of Common Pleas thereof, from which the writs of scire facias quare executionem non, ought to have been sued out.

This act, however, only provided for the transfer of actions pending and undetermined in the Supreme Court at the close of the December term thereof, in 1799, to the Circuit Courts of the counties respectively, from the courts of which they had been removed, thence into the Supreme Court. And the 12th

section of that act, provides expressly, “ that in all actions or suits in the said Supreme Court, where judgments shall have been rendered, or decrees passed before or during the said December term next, and in all cases there depending before the said Supreme Court, for their decision on law points, the records, doequets, declarations, and other papers respecting the same, shall be, and remain in the custody of the Prothonotary of the Supreme Court, and be proceeded on in the said Supreme Court, by execution or otherwise, as to justice shall appertain.” Now the original judgment in the present case having been obtained at December term, 1797, in.the Supreme Court, two years before, was of course according to the provision of the

section just recited, to remain in the Supreme Court for execution, to be had of it by the plaintiff, in the usual form theretofore practiced. Accordingly it became necessary to sue out the writs of scire facias, for the purpose of having execution of it; and not as has been suggested by the defendant’s counsel, in his argument, to renew or to continue the lien of it. The judgment here, never created any lien upon the lands or real estate of the defendant, so that there was no lien to be renewed or continued, by reviving it.

The only lien existing here upon land belonging to the intestate df the defendant, was created by virtue of the mortgage, and not by force of the judgment obtained in the scire facias, sued out upon it. The acts of assembly, therefore, referred to and relied on by the counsel for the defendant, directing the course of proceeding by writs of scire facias, for the purpose of continuing the liens of judgments upon the real estates of the defendants therein, have no application to this case.

The acts of assembly limiting the liens of judgments to five years, unless continued by writs of scire facias, sued out and served in the manner therein prescribed, do not extend to, or embrace the lien here, which cannot be considered as arising from a judgment in any way.

This being a proceeding upon the mortgage according to the act of 1705, it is also, therefore, considered as not coming within the provisions of the 25th, 33rd, and 34th sections of the act of the 24th of February, 1834, which have been referred to by the counsel of the defendant, in order to show that the course adopted and pursued here, falls greatly short of what is required by these sections. It has also been alleged, that the writs of scire facias quare executionem non, ought not to have been sued out after so great a lapse of time, without a previous allowance or order of the court.

But we have no rule of practice, restraining a party from suing out a scire facias quare executionem non, after any length of time, without such order. (See Leslie v. Nones, 7 Serg. & Rawle, 419.) It is very possible it might be expedient to have a rule on the subject. In the King’s Bench and Common Pleas of England, they have rules, making it necessary in certain cases, to obtain a rule first, for suing out the writ.

And in either court, if the judgment be above twenty years old, there must be a rule first obtained to show cause, and served on the defendant. 2 Tidd, 1156-7, (8th ed.) It has been urged likewise, that according to the 39th

section of the act of 13th of June, 1836, (Pamph. L. 579,) the last writ of scire facias, at least, being sued out subsequently thereto, ought to have been served on the defendant, as therein directed; and that without this, no judgment of revival ought or could have been regularly entered. This

section declares, that “ in every case in which a writ of scire facias may be issued, it shall be served and returned in the same manner as is therein provided, in case of a summons in a personal action, and judgment for default of appearance, may be taken at the same time, and in the same manner, as in case of a summons as aforesaid, unless it be otherwise especially provided.” This merely prescribes the manner generally, in which a writ of scire facias shall be served; making it a sufficient service, without the presence of two or more witnesses, to read the writ in the hearing of the defendant,' or by giving him notice of its contents, and a true and attested copy thereof; or if he cannot conveniently be found, by leaving such copy at his dwelling-house, in the presence of one or more of the adult members of his family; or if he reside in the family of another, with one of the adult members of the family in which he resides.

But there is no alteration of the law here, as it stood before, in respect to the effect of the return of two nihils to the first and second, or alias writs of scire facias, which have ever been deemed equivalent to a return of scire'feci. Barnet v. Cleyton, (Dyer, 168, a.) Ratcliffe’s case, (Id. 172, a.) Bromley v. Littleton, (Yelv. 113.) Barrock v. Thompson, (Styles, 281, 288, 323.) Clarke v.

Bradshaw, (1 East, 86.) And in Ratclife’s case, two nihils returned upon two writs of scire facias issued to have a charter of pardon of outlawry allowed, were held sufficient, notwithstanding the words of the statute, 5 Ed. 3, c. 12, be that no charter shall be granted, until it appear to the Chancellor by certificate, that the person outlawed, has rendered himself to prison in the court out of which the exigent issued; and he shall not be allowed until, the plaintiff be warned, and the warning certified, to make the plaintiff plead upon the original, if he choose, &c.

Thus making the return of two nihiis equivalent to a service, even where the statute positively required that the party should be actually warned. So in Bromley v. Littleton, where the defendant in error, died pending the writ of error, her executors were held to be made parties to it, by the return of two nihiis to the writs of scire facias, because it amounted to a garnishment. And in like manner with us, two nihiis have ever been held sufficient to authorise an award of execution by the court, either upon a mortgage, or upon a judgment post annum et diem. Warder v. Tainter, (4 Watts, 270.) Colley v.

Latimer, (5 Serg & Rawle, 211.) We feel perfectly satisfied that the application to set the writs of scire facias and the proceedings thereon aside, or to open the judgments of revival, has no merits or good ground whatever to support it. In regard to the grounds and merits of - the defence set up here against the claim of the plaintiff, it may be proper to make some remarks.

The original judgment in the scire facias on the mortgage itself, being obtained in December 1797, and nothing appearing from the record to have been done on it, till July 1834, a space of upwards of thirty-six years, when the first scire facias quare executionem non was issued, one might well presume it had been paid or settled in some way; and might feel, at a loss, if it were not so, even to conjecture the reason of such great delay and forbearance to have any thing entered upon the record, tending to show that it was not satisfied.

The presumption of payment, however, strong and violent as it may seem to have been1" from the great length of time, when the first writ of scire facias was.sued out in 1834, has been most effectually and satisfactorily rebutted by documentary or written evidence of agreements between the parties in relation to the original judgment, that has not been denied, or'attempted to be avoided by any thing that is even colourable.

In the first place it appears that on the very day that the original judgment was entered, the 30th of December, 1797, the late Judge Duncan, whose administrator is the real plaintiff here now, being the friend and brother-in-law of the then defendant, John Carson, who was intermarried with a sister of the Judge, paid the plaintiff, Frederick Pigou, Jr. the amount of the judgment, in consideration whereof the latter assigned it to Judge Duncan by writing under his hand.

In 1808 the defendant, John Carson, by his writing under his hand, recognised Judge Duncan as the assignee of the judgment, and in consideration of his obtaining a credit thereon for £1500, the price of one hundred acres of land,' and £35, the price of a horse, to be entered as of the year 1798, he obligated himself to convey the hundred acres of land to Judge Duncan.

In 1820 John Carson, the original defendant, having died during the interim, Charles Carson, the present defendant, and then as well as now, the acting administrator of his father, the original defendant, made application by letter in writing to Judge Duncan, to aid him in borrowing a certain sum of money of some of the banks in the city of Philadelphia, to pay off other debts owing by and pressing upon his father’s estate, by pledging the mortgaged land for the repayment of it; and wishing to know of Judge Duncan, at the same time, upon what terms he would release the land from the lien of his mortgage, so as to make it a good security to the bank that might loan the money wanted.

Accordingly a loan of money was procured from one of the banks of the city, through the interference of Judge Duncan, upon the defendant’s giving a mortgage upon the land for the repayment of it, and upon Judge Duncan’s agreeing that the payment of his mortgage should be postponed to that given to the bank. And again, in May 1824, Mr. James Duncan, brother of Judge Duncan, on behalf of the latter, and Mr.

Poster, a gentlemen of the bar of Harrisburgh, the residence of the defendant, on his behalf, jointly made out a statement in writing, signed by them, ascertaining and setting forth a balance of five thousand one hundred forty-three dollars and four cents to be due on the judgment at that time to Judge Duncan. Thus all presumption of payment arising from mere lapse of time has been most completely repelled.

And as to the oath of the present defendant, stating his belief that the judgment was paid by his father in his lifetime, by the sale of the hundred acres of land, which, he thinks, would have sold for a hundred dollars per acre, without saying when, and by his mother’s portion of the estate of her father, Stephen Duncan, deceased, which the defendant thinks Judge Duncan got; it is shown by the written agreement between the parties, that the one hundred acres of land were taken and to be credited on the judgment at forty dollars per acre as of 1798; and by a deed of conveyance duly executed in 1802, by John Carson, the original defendant, and his wife, it appears that all her interest in the estate of her deceased father was conveyed and transferred to her brother, James Duncan, in consideration of two thousand dollars received of him, so that the present defendant seems to be under a misapprehension in believing or supposing that Judge Duncan got it.

In short, it may be true, that the present defendant believed, as he states in his affidavit, that the judgment was paid or satisfied by his father in his lifetime, and yet it does not, in the slightest degree, after the production of the written evidence on the partof the plaintiff, tend to prove that the judgment has been paid or satisfied in any way whatever, further than the plaintiff’s evidence shows it to be so. Neither does the deposition of Mr. Fisher, in the least, disprove or contradict the written evidence of the plaintiff as to the balance still due and claimed by him on the judgment. Mr.

Fisher heard, at one time, a dispute between Judge Duncan and Mr. John Carson, the original defendant, about'some land which the latter wanted the former to relinquish his claim to, or, as he said, if the judge did not, .he would not convey the one hundred acres to the judge as he had bound himself to do ; which, as Mr.

Fisher understood, was to be credited and to go towards paying the judgment: but whether the price of the one hundred acres was to be, in full or only part, satisfaction of the judgment,' he does not know,- nor did he hear them say; so that admitting all he says to be true, it is still perfectly consistent with the plaintiff’s claim. The rule is therefore discharged. Rule discharged.