#### *Richardson’s Adm’r v. Prince George Justices. Poindexter’s Adm’r v. Same.

April Term, 1854,

Richmond.

e. Judgments —Scire Facias—Variance—Case at Bar.— *A*judgment is recovered in the name of B H and three others, justices of P. G. county, for the benefit of the marshal of the Superior court of chancery for the Williamsburg district. The defendant "being dead, a *scire.facias*issues to revive the judgment, which, after setting out the plaintiffs, and the recovery of the judgment for the benefit of the marshal, adds, which marshal was W. Hblb ; This is not a variance.

a. Same—Same — Surplusage — Case at Bar.—In this ease the marshal being dead, the *scire facias*recites that it was awarded at the instance of M his administrator. Though it might have been more regular for the *scire facias*to recite that it was .awarded at the instance and on behalf of the plaintiffs on the record, yet as it would have been good if the averment at whose instance it had issued had been wholly omitted, the recital was mere surplusage, and does not vitiate the *scire facias.*

3, Same—Same—How Regarded—Case at Bar.—Neither the *scire facias*nor any other part of the record, showing what was the character of the obligation or other liability upon which the judgment was rendered, and the defendant’s plea not averring that it was such a statutory bond as required that there should be a relator in any action brought upon it, and that the relator should be the party, having the legal right to sue, it must be regarded as a common law bond or liability subject to be sued on in the names of the payees without a relator, or for the benefit of the holder or any party entitled to the benefit of it; and whether *W*was marshal or M was his administrator, is a question in which defendant has no interest; and it cannot be raised by him by plea in bar to the plaintiffs’ claim.

4. Same - Same -Suspended by Injunction—Surplusage. -The *scire facias*stated the judgment had been suspended by injunction. This was an unnecessary allegation, and may be treated as surplusage; and a plea that the judgment had not been suspended by injunction, offered no bar to the *scire facias.*

*5.*Same—Same—Dissolution of Injunction- immaterial Issue.—The *scire facias*further stated that the injunction h ad been dissolved. A plea that the injunction had not been dissolved, is bad, and an issue made up upon it is immaterial. Therefore, though the court admits improper evidence upon it, offered by the plaintiff, it is not cause for reversing the judgment.

*6.*Same—Death of Judgment Creditor— Pending Injunction.*-The dependency of an injunction to a judgment at law, will not prevent the revival of the judgment upon the death of . either the plaintiff or defendant; and the injunction operates upon the j udgment on the *scire fací as.*to restrain and prohibit the issue of execution thereon.

These two cases are precisely the same except in the names of the defendants below, who are the appellants. The statement of one is therefore the statement of the other.

In April 1847 a scire facias was issued from the clerk’s office of the Circuit court of the county of New Kent, which recited, that whereas Benjamin Harrison, Thomas Cock, Nathaniel Colly and William Baird, justices of Prince Georg-e county, who sue for the benefit and at the cost of the marshal of the Superior court of chancer}' for the Williamsburg district, which marshal was Charles B. Wingfield, at a Superior court of law begun and held for New Kent county on Monday the 4th of October 1830, by the judgment of said court recovered against Holt Richardson and John B. Poindexter, on a motion for a judgment and award of execution upon a bond given for the forthcoming and delivery of property on the day and at the place of sale, taken by virtue of the plaintiff’s execution sued out of said court against the goods and chattels of the defendant Richardson and one Thomas H. Terrell and John H. Christian, the sum of eight hundred and thirty-four dollars and forty-two cents, the penalty of said bond, and their costs by them in that behalf expended. But the said judgment was to be discharged by the payment of four hundred and sixteen dollars and twenty-one cents, with interest thereon, to be computed after the rate of six per cent, per annum, from the 6th day of September 1830 till paid and the costs, one dollar and eighty-six cents. Whereof, &c. And *98whereas a certain Charles L. Wingfield was the said marshal, and since the rendition of the judgment ^aforesaid, the execution of-which has been suspended by an injunction obtained by the said Holt Richardson, the said Charles L. Wingfield and the said defendants Holt Richardson and John L. Poindexter have all departed this life, the said Richardson having died intestate as it is said; and administration on the estate of the said Charles L. Wingfield has been in due form of law granted to P. P. Mayo; and administration of the said Holt Richardson has been in due form of law granted to Theophilus A. Lacy, as we have been informed. And now in behalf of the said P. P. Mayo, administrator as aforesaid of the said Charles L. Wingfield, it is said that although judgment be given as aforesaid, and the injunction granted staying the execution of said judgment has been dissolved, yet execution of the debt, interest and costs still remain to be made. Therefore, at the instance of the said P. P. Majm, administrator of the said Charles L. Wingfield, we *command you,*that you make known to the said Theophilus *A.*Lacy, administrator of the said Holt Richardson, that he be at the clerk’s office, &c., on the first Monday in August next, to show cause,, if any he can, why the said P. P. Ma3'o, administrator of the said Charles L. Wingfield, ought not to have execution against him the said Theophilus A. Lacy, administrator of Holt Richardson, of the debt, interest and costs aforesaid, according to the judgment aforesaid.

The scire facias having been returned executed, the defendant appeared and demurred to it, and moved to quash it; and also tendered five pleas: 1st. Nul tiel record. 2d. That P. P. Mayo was not the administrator of Wingfield. 3d. That the execution of the judgment in the scire facias mentioned was not suspended by injunction. 4th. That at the time of the rendition of said judgment, Charles L- Wingfield was not the marshal . of the Superior court of chancery for the Williamsburg district. Sth. That the injunction *in the scire facias mentioned, by which the said judgment was enjoined, had not been dissolved.

The court overruled the demurrer, and refused to quash the scire facias, and on the motion of the plaintiffs, excluded the second, third and fourth pleas tendered by the defendant, but admitted the first and fifil. And the defendant excepted. There was a general replication to the first plea, and issue; and the plaintiffs replied to the fifil plea, that the said injunction had been dissolved; and this they were ready to verify by the record. And the defendant took issue on the replication.

On the trial of the issue joined on the first plea, the plaintiffs introduced the judgment and award of execution ; and the defendant objected to the introduction of this evidence, without the production also to the court of the forthcoming bond on which the judgment and award of execution were awarded; also the execution on which the forthcoming bond was taken, and the whole record of the suit out of which these had their origin. But the court overruled the objection, and gave judgment on that issue for the plaintiffs.

Upon the trial of the issue on the replication to the fifil plea, the plaintiffs moved the court to try it without the intervention of a jury; to which the defendant objected. But the court overruled the objection, and determined to try the issue without a jury. The plaintiff then offered in evidence a; part of a record of a chancery suit lately pending in the Circuit court of New Kent. This was the proceedings in cause which had been commenced in the Chancery court of Williamsburg, but was afterwards transferred to the Circuit court of New Kent. The part of the record filed commenced with an amended and supplemental bill filed by Holt Richardson in a suit which he had instituted in that court, as administrator of John Forth against William Spraggins and Polly his wife; and the ^object of this supplemental bill was to enjoin proceedings upon a judgment recovered against him on a 'forthcoming bond in the Circuit court of New Kent. But the part of the record nowhere shows who were the plaintiffs, or what was the amount of the judgment. This injunction was granted, and was afterwards dissolved. Upon this evidence the court gave a judgment for the plaintiffs on this issue. And the defendant excepted to the opinion of the court overruling his objections to the evidence upon the issues upon the first and fifil pleas, and also to the opinion of the court overruling his objection to the trial of the last issue by the court without a jury: And applied to this court for a supersedeas, which was allowed.

Lyons, for the appellant.

Steger, for the appellees.

*

Judgments—Scire Facias—Pending Injunction.- In Hutsonpiller v. Stover, 12 Gratt. 592, it is said that the pendency of an injunction to a judgment does not prevent the suing out of a *scire facias.*Citing *Richardson v. Prince George Justices. 11 Gratt. 190.*

See monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

LEE, J.

It is no doubt true that if a scire facias for the purpose of reviving a judgment, be found to vary in a material matter from the judgment in the description which it undertakes to give of it, advantage may be taken of it in the proper mode, and the variance "frill prove fatal. But waiving the question whether a proper mode of making such an objection could be by a general demurrer or motion to quash, I am of opinion that no such variance appears in the present case. It is true the judgment was in the names of four persons described as justices of Prince George county, suing for the benefit of the marshal of the District court of chancery held at Williamsburg, without giving his name, while the scire facias avers that his name was Charles L. Wingfield. But this is no variance. It is intended to furnish an additional means of identification of the person for whose benefit the judgment had been rendered, and to show the right of the party at whose instance the present *99proceeding *was taken. It is an averment in nowise repiignant to, but strictly consistent with, all the terms of the judgment, while the names, sums, dates and other elements of description, which the judgment affords, are found accurately given in the scire facias. The objection that the scire facias recites it was awarded at the instance of P. P. Mayo, administrator of Charles L. Wingfield, instead of Benjamin Harrison, and the other three parties who are the plaintiffs on the record, is one rather of form than of substance. It might have been more regular for the scire facias to recite chat it was awarded at the instance and on behalf of the plaintiffs on the record, but as it would ham been good if the averment at whose instance it had issued had been wholly omitted, I regard it as mere surplusage, and not serving to vitiate; and the rather because the requirement of the process is that the defendant shall show, if anything he can, wh3' execution should not be awarded against him “according to the judgment aforesaid,” thus contemplating conformity to the judgment in the manner of the process sought, while it recognizes the right of the party for whose benefit it was designed to be taken. I think the demurrer and motion to quash were properly overruled.

It does not appear from the scire facias, or in any other part of the record, what was the character of the obligation or other liability upon which the original judgment was rendered. It may have been a statutory bond, made payable to the plaintiffs in their official character, or though payable to them in such character, it may not have been a statutory bond, though good as a common law obligation; or it may have been a bond or other contract, payable to the plaintiffs, in their individual character, the words justices of Prince George county being added as “designatio personarum.” Nor do the defendants’ pleas, or any of 1hem, allege that it was such a statutory bond as required that *there should be a relator in any action brought upon it, and that the relator should be the party having the leg'al right to sue. In the absence of an3' such information as to the character of the obligation, and of any averment that it was of the nature above indicated, we must regard it as a common law bond or liability, subject to be sued on in the name of the pa3?ees, without an3* relator, or for the benefit of any party who may be the holder, or lawfully entitled to the benefit of it. Thus the questions whether Wingfield was marshal and whether Mayo was his administrator, are questions between the latter and the plaintiffs on the record, with which the defendant has no concern, because the demand being treated as a common law and not a statutory liability, and the proceeding being to revive a judgment on such a liability in the name of the payees, a judgment upon this scire facias for whose use soever, will be a complete bar in favor of the defendant to any future action. At most, if the defendant desired to call in question the right of Mayo to use the names of the original parties, and to prosecute the scire facias for his own benefit, the proper mode was to apply to the court for its summary interference by rule. Howard v. Rawson, 2 Leigh, 733, and authorities cited in the opinion of Judge Summers. He could not make such mat'er the subject of a plea in bar to the plaintiff’s action. I think the pleas that Wingfield was not marshal, and that Mayo was not his administrator, tendered immaterial issues, and were properly rejected bj' the court.

The plea that the judgment had not been suspended by an injunction, offered no bar to the scire facias. It but served to point to another matter which might be made the subject of a plea in bar, and which, if not successfully answered, would defeat the action. It is true the scire facias does allege that execution of the judgment had been suspended by an injunction ; but *this allegation was unnecessary, and may be treated as surplusage; and a naked traverse of such a matter offers no sufficient defence to the action. If the defendant deáired to set up the statute of limitations in his defence, it was his dutjto plead it distinctly and directly: He could not be entitled to the benefit of it upon a collateral issue. If the plea were strictl3r true and there never had been an injunction, it does not follow that the judgment could not be revived. And if the defendant had pleaded the statute of limitations, the plaintiffs might have replied some mather (other than the pendency of the injunction) which might serve to take the case out of its operation, but of the benefit of which, upon the issue tendered, they might- be deprived. I think, therefore, this plea also was properly rejected by the court.

The fifil plea tendered by the defendant (that the injunction had not been dissolved) was received by the court, and an issue made up upon it. And if this could be regarded as a good plea, or the issue joined upon it as material, it might admit of question whether the court did not err in admitting the imperfect and incomplete record offered by the plaintiff in evidence, in support of the issue upon his part. Ror although, as has been decided by this court in the cases of White v. Clay’s ex’ors, 7 Leigh 68, and Wynn v. Harman, 5 Gratt. 157, a decree or other extract from the record may be given in evidence without the production of the whole record, yet from the case of Masters v. Varner’s ex’ors, 5 Gratt. 168, we learn that this is to be so understood where the decree or extract so offered itself satisfactorily establishes the fact it is offered to prove. And in this case the portion of the record offered by the plaintiff was scarcely sufficient to identify the judgment the injunction to which was thereby dissolved, as that upon which the scire facias in question had been sued out. But I do not regard *the plea as a good bar, nor the issue joined upon it as material. I can perceive no good *100reason why a party plaintiff, whose judgment has been enjoined, may not be permitted, upon the death of the defendant pending the injunction, to revive it against his personal representative. Such a. proceeding can be no breach of the injunction, the object of which is to restrain the party from enforcing the judgment by execution, and reaping its fruits, until the matters of equity alleged can be heard and considered. All that the court of chancery intends to restrain is execution. The plaintiff may proceed so far as to be able to take out execution the instant the injunction is dissolved. 1 Eden on Injunct. 97. Now, where the defendant dies after the injunction, unless the plaintiff can go on and revive against his representative, he will not be in a situation, upon the dissolution of the injunction, to issue his execution, but must then be delayed till he can sue out his scire facias and obtain the order of revival; and thus, by the supervening death of the defendant, he is placed in a worse condition than when the injunction was allowed; while, if he is allowed to go on and revive his judgment, notwithstanding^ the injunction, he is merely reinstating himself to the right which he then had of issuing his execution as soon as the injunction is dissolved. In fact, the right to sue out execution upon its dissolution, is the very condition-of an injunction to a judgment; and if the- judgment creditor die pending the injunction, the court of chancery will in a summary way impose it as a condition on the complainant to consent to revive at law, under the penalty of having his injunction dissolved if he refuse. Medley v. Pannill, 1 Rob. R. 63. And there can be no "conceivable difference in this respect whether the necessity for the revival is occasioned by the death of the judgment creditor or the judgment debtor. The inconvenience to be remedied *is precisely the same in both cases: and what the court of chancerj' would itself enforce in a summary way by a rule, it surely would not regard as a breach of the injunction when sought to be accomplished by the ordinary process of law. The judgment creditor must take care to stop with the order reviving his judgment. Thus far may he go but no farther; and the judgment of the court upon the scire facias is to be regarded as in strict subordination to the injunction to the original judgment of which it is the mere continuation.

I regard this as the reasonable and sound doctrine upon this subject; and I have seen no case which should be considered as dis-affirming it. It is true Judge Baldwin, in delivering his opinion in the case of Smith’s adm’r v. Charlton’s adm’r, 7 Gratt. 425, 466, intimates that pending a writ of error or . injunction or. cessat, an action of debt or scire facias cannot be brought upon the judgment. He cites no authority for the proposition, and so far as it respects the injunction, it is an intimation thrown out arguendo and by way of illustration. He probably did not advert to the distinction between the nature and effect of an injunction and that of a writ of error or cessat. At all events it was a point not at all material to the decision in that case, and the remark of the judge as it respects the injunction, must be regarded as obiter merely. On the other hand, there are several cases to be found in the English chancery, from which the right to revive a judgment by scire facias upon the death of the judgment debtor pending an injunction may be fairly-deduced. Thus, where there is an interlocutory judgment, as by default or upon demurrer, and an injunction is allowed, the plaintiff may, notwithstanding, go on and ascertain his damages. Morrice v. Hankey, 3 P. Wms. 146. So where the defendant at law had put in a frivolous plea, to which the plaintiff demurred, *and there was an injunction allowed; and pending the injunction, the plaintiff went on and obtained judgment, it was held by Eord Macclesfield that this was no breach of the injunction. Sidney v. Hetherington, 3 P. Wms. 147 n. So where there -had been an award made under a reference which had been made a rule of court, and an injunction was allowed, it was held bjT Eord Roslj’n that the party might go on at law, take his rule to show cause why an attachment should not go for performance of the award, and proceed to make his rule absolute without being guilty of any breach of the injunction, provided he did not execute the attachment. Franco v. Franco, 2 Cox R. 420. And in a case where there was judgment against a defendant as executor quando acciderint, an injunction was allowed, the plaintiff at law pending the injunction, took out a scire facias to enquire after assets: this was held by Eord King to be no breach of the injunction, being only a continuation of the old action on the same record. Morrice v. Hankey, 3 P. Wms. 146. In all these cases the object of. the party was simply to place himself in a condition to sue out execution as soon as the injunction should be dissolved: and such is the purpose for which a party may well be permitted to revive his judgment where the defendant has died pending the injunction.

It is objected that the judgment on the scire facias, awarding execution, is in favor of Mayo, administrator of Wingfield, when it should have been in favor of Harrison and the other plaintiffs on the record. It might have been more regular that it should have been in terms in favor of the latter, for the use and benefit of Mayo, administrator, &c. ; but as the judgment is to be understood with reference to the scire facias on which it is founded; and as that goes for award of execution according to the original judgment, it may be regarded as in effect an award of *execution to be sued out in their names for the use of Mayo administrator of Wingfield, according to the suggestions contained in the scire facias. The objection goes rather to form than to substance, and does not call for a more grave consideration.

I am of opinion to affirm the judgment.

*101The case of Poindexter’s ex’or v. Wingfield’s adm’r is in all respects similar to the foregoing, being a proceeding to revive the judgment against the representative of the other defendant Poindexter, who had also died after the injunction. The same defence was made and the questions arising in this case are precsely the same as those in the former.

I am of opinion that this judgment also should be affirmed.

ALLEN, MONCURE and SAMUELS, Js., concurred in the opinion of Lee, J.

DANIEL, J., dissented. He thought the fifil plea of the pendency of the injunction a good plea; and that the proof admitted by the Circuit court of its dissolution was not sufficient.

Judgment affirmed.