Register v. Layman

SCIRE FACIAS on a recognizance entered into on taking out a writ of certiorari to a justice's judgment. The pleas were performance and payment.

Mr. Guthrie gave in evidence the recognizance, and the decision of the court affirming the judgment on certiorari.

Mr. Rogers made the question whether a scire facias could issue in such a case as this. There has been no practice such as this; no case in which the question has been made.

The writ of scire facias usually issues by virtue of an act of assembly. It must issue upon an entire record; and out of the court in which the record remains. Hence it is usually provided in case of a judgment in an appellate court that the record shall remain, in order to give that court jurisdiction for such a proceeding as this, as in the case of an appeal from a justice's judgment.

On a certiorari the judgment of this court is one of affirmance, and the record is remanded. What is the further remedy in this court? The party might as well take out an execution here, as to sue out a scire facias here to show cause why an execution should not issue. The remedy is by an action of debt on the recognizance.

Mr. Guthrie. — The scire facias is on the recognizance, and not on the judgment of affirmance. That is only evidence of the breach of the condition of the recognizance. The recognizance is a record of this court. (Digest, 217, 358.).

Mr. Rogers. — The only judgment to be executed in this court, is a judgment for costs; the rest remands the record to the justice for execution of the debt.

The Court held the scire facias to be a legal and proper remedy in the case. It is founded on a recognizance taken in this court, which is a record of this court, and the act of assembly, (Dig. 217,) gives this form of remedy to execute recognizances generally.

Verdict for plaintiff.