#### *Williamson v. Crawford.

October Term, 1850,

Richmond.

(Absent Cabell, P., and Brooke, J.)

1. Scire Facias—Statutes—Case at Bar.—The act, 1 Rev. Code, ch. 128, § 65, p. 505, In relation to a *scire facias*to revive a judgment, is not repealed by the act of 29th March, Supp. Rev. Code, ch. 197, § 2, on the same subject.*

2. Pleading and Practice—Scire Facias.†—Upon a *scire facias*to revive a judgment, neither a declaration ■ nor a rule to plead is necessary. And if the writ is made returnable to the rules, and the defendant makes default, there should be an award of execution, which, if not set aside at the next term, becomes a final judgment as of the last day of the term.

At the May term for 1837 of the Circuit court of Henrico county, James Crawford recovered a judgment, in an action of detinue against William Williamson, for two slaves, each valued at 700 dollars, and also for 100 dollars damages for detention of the slaves, and his *costs. No proceedings seem to have been taken upon this judgment until March 1843, when the plaintiff sued out a scire facias to revive it, returnable to the April rules. On this writ the sheriff returned that the defendant did not reside in his county, nor was found in his bailiwick; but as he was informed he was absent from the Commonwealth, and had no known attorney therein.

.At .the April rules the plaintiff sued out an alias writ of scire facias against the defendant, returnable to the May rules; and upon this writ the sheriff made the same return as on the first.

At the May rules, the alias writ having been returned, the clerk entered up a judgment by default against the defendant, according to the writ: and at the next term of the Court, which commenced in the same month, this office judgment was confirmed, and there was a judgment as of the last day of the term, against the defendant, for the two slaves or their alternative value, with the damages and costs of the original action, and also the costs of this proceeding. To this judgment, Williamson obtained a supersedeas from this Court.

The case was elaborately argued here by Patton and Cooke, for the appellant, and A. Johnston and Cabell, for the appellee. The questions discussed were, first, whether the act of 29th of March 1831, Supp. Rev. Code 258, in relation to proceedings upon a scire facias to revive a judgment or decree, repealed the act of 1819, 1 Rev. Code, ch. 128, *'$*65, p. 505, on the same subject; and second, whether, when the scire facias was returned to the rules, the defendant was entitled to a rule to plead.

*

Actof 1819. “On writs of *scire facias*for the renewal of judgments, no judgment shall be rendered on the return of two niliils, unless the defendant resides in the county, or unless he be absent from the Commonwealth, and have no known attorney therein. But such *scire facias*may be directed to the sheriff of any county of the Commonwealth, wherein the defendant or his attorney shall reside or be found, which being returned served, the Court may proceed to judgment thereupon, as if the defendant had resided in the county.”

Act of 1831. “That all writs of *scire facias*which shall issue to revive either a pending suit, or a judgment or decree in any of the Courts of this Commonwealth, where it shall appear by affidavit of the plaintiff or other person, filed with the clerk, that the defendant is out of the Commonwealth, may be served on the defendant’s agent or attorney in fact, if any he have within the Commonwealth, or if he have no such agent or attorney known, by publication for four weeks successively previous to the return day of such Court, in some newspaper published in this Commonwealth.”

†

Pleading and Practice—Scire Facias.—In McVeigh v.Bankof Old Dominion, 76 Va. 268, it is said: “Upon the authority of *Williamson r.*Crawford, 7 *Gratt. 202,*which is recognized in a later case—Bolanz *& al.*v. Commonwealth, 24 Gratt. 38—as accurately expounding the law of this state, the court is of opinion that there is no error in the judgment of the court below. Upon a *scire facias*to revive a judgment, neither a declaration nor rule to plead is necessary.”

See, in accord, citing the principal case, Smith v. Hutchinson, 78 Va. 688. |

BALDWIN, J.,

delivered the opinion of the Court.

The practice of the English courts, in relation to writs of scire facias for the renewal of judgments, as *well as other matters of practice, came to us on the. settlement of the countr}', and has prevailed here, so far as adapted to the organization of our Courts, and compatible with our own legislation. By that practice, execution was awarded on the return of two nihils, and it was recognized by our act of 1792, (1 Rev. Code, ch. 128, § 65, p. SOS,) but was restricted by that act to cases, where the defendant resided in the county, or where he was absent from the Commonwealth, and had no known attorney therein. By the act of 1831, (Supp. Rev. Code, p. 258,) upon the affidavit therein prescribed being made and filed, service of the scire facias was authorized, where the defendant was out of the Commonwealth, upon his agent or attorney in fact, or by publication in some newspaper as therein provided for. But this last mentioned act is permissive only, and in no wise abolishes the previously existing practice. The purpose of the *83writ of scire facias is to give notice to the defendant of an application for award of execution, which cannot be had without an order to that effect, where execution had not been sued out upon the judgment within a year and a day: and the order is made in Court, or at the rules, upon due return of the process, unless good cause can be shewn to the contrary; and it is not a proceeding which requires a declaration or a rule to plead. The default of the defendant in not appearing to shew cause, is a sufficient foundation for award of execution, which if made at the rules, and not set aside at the next succeeding term, becomes a final judgment of the last day of the term. The provisions of the 6th section of ch. 170 of the New Code, are not applicable to the present case, which occurred .before the same took effect.

It seems, therefore, to the Court, that there is no error in the judgment of the Circuit court: and it is considered that the same be affirmed, with costs to the defendant in error.