INTRODUCTION cix

goods of the person flying, any law, statute or usage to the contrary notwith-
standing. 92

Whether a plaintiff preceded by capias ad satisfaciendum or fieri facias, he still
had to sue out the writ of execution within a year and a day from the date judgment
was entered. Otherwise the court would conclude prima facie that the judgment
was satisfied and extinct. However, if more than a year and a day had passed,
plaintiff could still sue out a writ of scire facias for defendant to show cause why
the judgment should not be revived and execution had against him. This practice
was probably based upon the extension of 13 Ed. I, St. I, c. 45 to the province.

From the entries in the Liber it appears that the writ of scire facias recited that
plaintiff at a court held on a certain date had recovered a certain debt against
defendant, as well as damages, and that execution had not yet issued forth; where-
upon the sheriff was commanded to make known to the defendant that he be in
court at the next term to show cause, if he had any, why execution should not issue
against him for the said debt and damages, and that the sheriff make return of the
writ at said date.

In the usual case the sheriff returned the writ endorsed "Not found" or "Non est,"
if defendant could not be served, and "Made Known", if service were made. In a
few cases writs were returned endorsed "Cepi" or "Sumoned" or "Agreed." Upon
the return day defendant might appear and imparl to the next court. Then, or
without any previous imparlance, defendant might appear in his own person and
being prayed to answer to the writ might in effect plead "nihil dicit." Whereupon
the court would adjudge that plaintiff have execution against defendant for the
debt and damages for which judgment had already been entered, plus costs and
charges. Apparently if suit was by administrators, the cost of the scire facias would
not be allowed.

In one case, Davis v. Yopp in the January 1697 court, two writs were issued and
returned "Not Found" and Yopp, being called, did not appear. Thereupon the
court adjudged that Davis recover the debt and damages as well as costs and
charges. In Jowles v. Bennett defendant had been served but failed to appear so
the court adjudged recovery for Jowles. In Jowles v. Davis Davis appeared on the
return of the writ and apparently attempted to show cause why execution should
not be had. However, the court, "the truth of the matter between the parties ... be-
ing Seen heard and understood" considered that Jowles have execution, plus costs
and charges. The same procedure was followed in Jowles v. Winkling. In Batson v.
Mills, upon the return of the writ Mills appeared and apparently showed good
cause why execution should not issue, for the truth of the matter in controversy
having been "Seen heard understood and Maturely Deliberated" the court con-
sidered that Batson take nothing by his writ and that Mills recover his costs and
charges. 93

In several cases demurrer was made to the writ. In Brooke v. Tracey's Adminis-
trator, in the February, 1698/9 court James Brooke had obtained a judgment
against Charles Tracey for 5200 pounds of tobacco but execution had not issued
forth against Tracey in his lifetime nor against the administrator, David Small.
Service was made and Small, after an imparlance, demurred to the scire facias.
Upon examination of the matter "twas found that the Cause of Demurrer was
that the clerke had not ishued out the writt of Scire facias aright." Therefore, it
was considered by the court that the writ be quashed, that defendant go without

92. 13 id. 521; 22 id. 463.

93. Infra 296-97, 298, 319, 342.