Common Pleas. WATTERS บ. LID WILL. judgment. At common law, the death of a party in execution T. T. 1847. under a ca. sa. prevented all further execution on that judgment: Foster v. Jackson (a). This decision gave rise to the English Act analogous to 10 Car. 1, sess. 3, c. 9 (Ir.). Both purporting to be declaratory, it has been argued that they show the common law effect upon the first judgment, of death in execution issued upon the second judgment, to be different from that which we insist. But the second sections of both, purporting to be declaratory, establish a distinction by enactment which has no existence at common law. This effect of declaratory statutes, to conclude Courts as to the state of the common law, is contrary to the ultimate decision in Regina v. Millis (b). The effect of a declaratory statute is dwelt upon by Perrin, J., in the same case (c). The statutes 33 G. 3, c. 42, and 35 G. 3, c. 30, s. 31, and the authorities upon them, relate to the effect of arrest under a ca. sa. upon the same judgment, not to the common law effect upon a different judgment. The recitals in these statutes as to the inconvenience of parties, having property, lying in jail without paying their debts, show that it was not their object to enable a creditor to have execution in such a case as the present, in which the debtor ceased to have property at the time of his arrest. We admit that by statute the arrest and death in execution of George Lidwill under the second judgment does not prevent further execution upon it; but that leaves untouched the common law effect upon the first judgment, of the arrest and death in execution under the second. Taylor v. Waters (d) was mentioned. The replication to the sixth plea is bad; it passes over the expression, "still subsisting," in the plea, and avers that George Lidwill was setsed in manner and form as in scire facias; but neither the scire facias or the return aver any estate "still subsisting." In Vernon v. Goodrick (e) the plaintiff was held bound to show title in in his replication. In Carroll v. Cooke (f) the return was held sufficient, because it stated that the party was seised in fee, or of a descendible freeheld. The alternative allegation is not to be found here. Our plea is good. A party having an interest is not to be estopped from protecting it by the way in which the return is framed. In Jefferson v. Morton (g) a term is set up and no objection made. Clift's Entries, 671; Com. Dig. tit. Pleader (scire facias), 3 L. n. 14; Adams v. Savage (h), were cited. (a) Hobart, 52. (c) Jebb & Bourke, 259. (e) 1 Str. 5. (g) 2 Saund. 20. (b) 10 Cl. & F. 534. (d) 5 M. & S. 103. (f) 1 Jebb. & S. 33. (h) 2 Salk. 601. T. T. 1847. WATTERS บ. LIDWILL. Fitzgibbon, for Frederick Lidwill, maintained that the sixth plea was good, and that were it not open to the heir to plead such a plea, he must necessarily occupy a worse position than any other terretenant. Frederick Lidwill had pleaded a term still subsisting in himself, and the plaintiff had not replied a descendible freehold in George Lidwill at the time of the rendition of the judgment still subsisting, but referred back to the scire facias and return, which contained no such averment. In favour of the validity of the plea of the Statute of Limitations, he argued at considerable length. Suppose, he said, George Lidwill had parted with his estate in 1826, it would be hard to say that a new judgment in 1827 should be a lien upon that estate in the hands of a purchaser. The new suit in 1827 did not terminate in an execution on the judgment of 1811, nor could it have done so. It would create great confusion to hold that the new judgment of 1827 was a revival, or quasi revival of the original judgment. Contrasting the 8 G. 1, c. 4, with the present Statute of Limitations, it will be seen that, by the former Act, a proceeding against a person without interest in the lands, would in many cases have kept the judgment alive against the land—a provision carefully omitted in the latter Act, under which two facts only will avail to keep the judgment alive, viz., payment on account by the party liable, or an acknowledgment in writing of his liability. The decisions therefore on 8 G. 1, c. 4, must be excluded from consideration in the present case. Brewster, for Thomas Nugent, a terretenant. Suppose that twenty years having elapsed (under the old law, 8 G. 1, c. 4,) from the rendition of the original judgment, the conuzor sells his lands (the judgment not having been kept alive by payment, &c.), after the purchase an action of debt is brought against the conuzor, who does not plead the statute, and then judgment is recovered. If the argument on the other side be correct, the original judgment would be resuscitated against the lands in the hands of the purchaser, who was not, and could not have been a party to the latter action by which he is thus injuriously affected, and who, at the time of the purchase, was only entitled to a twenty years' search. This could not arise in proceedings by scire facias, which must have been served upon the purchaser as terretenant. The original judgment would not appear upon the registry made in conformity with the statute 7 & 8 Vic., c. 90. There would not be any thing to inform a purchaser making a search, that the judg ment in debt is grounded upon the original judgment; and the judgment in debt very possibly may not be docketed at all. What Common Pleas. WATTERS v. means then would he possess of ascertaining the existence of the T. T. 1847. original judgment? He would not be permitted to inspect the judgment book and roll of the Court in which the original judgment was recovered: In re John Bagot (a): the Act 7 & 8 Vic., c. 90, having directed that no search shall be made except in the office established under it.-[BALL, J. It seems very singular, that because certain judgments have left our office, we cannot direct a search for others.]-The original judgment is now in an undiscoverable state; no third party can get at it. Napier, in reply. The difficulties raised with respect to possible purchasers may be easily disposed of. They are protected by the Legislature, and cannot be affected by any undiscoverable judgment. Any judgment, to affect a purchaser for valuable consideration, must be redocketed under Moore's Act, 9 G. 4, c. 35, or registered under 7 & 8 Vic. c. 90. Even if this were not so, a purchaser would be no worse off here than in other instances; ex. gr. execution may be had at any time upon a judgment, within a year after recovery, and may be continued from year to year for any number of years; thus the right remains, but there is nothing to show that the judgment is still in subsistence. So long as a judgment remains unsatisfied, no stranger can know what is due upon it, he merely knows that it is unsatisfied. There is no such thing as partial satisfaction. If the jugnent in 1827 had been upon scire facias, there cannot be any doubt that Conlan v. Bodkin, and Farrell v. Gleeson, would have been decisive authorities in favour of the plaintiff; and unless there be some distinction between the case of an action of debt upon a judgment, and a scire facias upon a judgment, unfavourable to the plaintiff, those authorities ought to be conclusive here. So far from being unfavourable, the distinction is the other way. In Ottiwell v. Farran, the difficulty with which the plaintiff had to struggle was, that a scire facias is not a new and substantive proceeding (b). If a formal matter, such as suing out a writ of fieri facias, or even a judgment on scire facias, would bar the statute, how much more ought a solemn proceeding, such as an action of debt, in which the debtor could have put forward every available defence? The effect of the revival is to give a new terminus a quo the twenty years may run; the judgment in debt gave such a terminus; it is a mistake to suppose a scire facias to be the only method for reviving a judgment. Execution sued out within a year, as already stated, gives (a) 8 Ir. Law Rep. 295. (b) Vide 2 Saund. 71, note 4. LID WILL. T. T. 1847. a new terminus (a). WATTERS บ. LID WILL. A writ of error has the same effect: Blackstone, in the third vol. of the Commentaries, p. 421, says, that an action of debt on a dormant judgment was the only method of revival at common law. Gilbert, in his history of the Common Pleas, p. 33, says, that to show the judgment unsatisfied "the plaintiff must again come into Court, "which he either does by a scire facias or an action of debt on the "judgment." Debt on judgment lies only where the judgment remains unsatisfied: 1 Selwyn N. P. 11th ed. vii., tit. Debt., p. 616, and authorities there quoted. Therefore, by the recovery in 1827, the original judgment was declared to be unsatisfied; if then it be ⚫ not merged in that of 1827, it is still alive and unsatisfied. That there is no merger is established by Comyn's Digest, tit. Pleader, 2 W. 37, referring to Cro. Eliz. 817, and by Erby v. Erby (c). We have, therefore, the judgment in debt removing every pretence for defence, showing that of 1811 to be unsatisfied and the lien still subsisting; we have a right to bring a scire facias on the judgment of 1811, a present right to receive the identical sum secured by both judgments having accrued to us by the judgment of 1827. When a sum of money is secured by any number of judgments, the last judgment may be taken as the terminus from which time is to be dated. The identity of the judgments, and that they must stand or fall together, may be inferred from Taswell v. Stone (d); Benwell v. Black (e). In Snook v. Mattock (f), Patteson, J., says, “I think "that there is no difference between debt and a scire facias upon a "judgment." Gilbert in his Treatise on the Action of Debt, p. 99, says, "If a man has judgment on scire facias he may bring debt on "that judgment in any other Court, and afterwards choose on which "judgment he will take out execution, because both judgments are "in equal force, and consequently the party may take advantage of "either of them." It is also worthy of remark that the words in the 3 & 4 W. 4, c. 27, s. 40, are "a present right to receive the same,” viz., any present right, and not "the present right,” which might, perhaps, limit the construction. The language of Burton, J., in Blakeney v. Ware (g), and the case of Grady v. Lidwill (in the Exchequer, not yet reported), are directly against the validity of the fifth plea. The replication to the sixth plea is good. The true way to test it (a) Vide Greenshields v. Harris, 9 M. & W.774. (b) 1 Salk. 261, & 2 Saun. 72 d. (c) 1 Salk. 80. (e) 3 T. R. 643. (d) 4 Burr. 2454. (g) 1 Jebb & Sym. 524. Common Pleas. WATTERS v. LIDWILL. is this: Suppose the plea to be that the heir was not seized of a T. T. 1847. descendible freehold still subsisting, and that it concluded to the country, would not the plaintiff be compelled to show that he had a freehold still subsisting? The replication is merely a re-affirmance of the scire facias and the return, these being in the usual form and sufficient: Henry v. Kelly (a); Carroll v. Cooke (b), the present replication cannot be improper. But their sixth plea cannot be sustained, the heir can only plead as terretenant; but a terretenant is not less than an owner of the freehold; here the heir shows himself to be only a termor. Jefferson v. Morton (c), cited on the other side, does not afford any support to their plea, the Sheriff there returned that there was no heir. In Smith v. Angel (d) Lord Holt distinctly laid it down that the heir could not plead a term in delay. In Barret v. Trotman (e) a special plea was held good, which relied on the party being merely a termor, no doubt upon the principle that the common law took no notice of a term for years. The freehold reversion may be got by elegit, and the tenant left undisturbed. Cur. ad. vult. DOHERTY, C. J. In each of these cases the writ of scire facias is brought by the assignee of the assignee of the executors of the conusee of a judgment of Hilary Term, 51 G. 3 (1811), recovered by George Watters deceased against George Lidwill deceased, for £640. 11s. debt, and £2. 13s. 6d. damages; it states the death of George Watters, and that before his death he made his will appointing executors who duly proved the will, and that those executors in Trinity Term, 8 G. 4 (1828), brought an action of debt in this Court. against the said George Lidwill for recovery as well of the said debt and damages as also for the recovery of a certain other debt of £774. 19s. 4d. and £2. 14s. 2d. damages, which George Watters in Trinity Term, 53 G. 3 (1813), recovered against George Lidwill. It then states that in Trinity Term, 8 G. 4, the said executors recovered judgment against George Lidwill in that action of debt for £1420. 16s., Irish currency, making £1311. 11s. 11d., British currency, the aggregate of said several debts and damages, with £16. 18s. 8d. for their costs and charges; and it avers that thereupon a present right to receive the said sum of £640. 11s. debt and £2. 13s. 6d. damages accrued to the said executors, who were then capable of giving a discharge for or release of the same. (a) 2 Hud. & Br. 591. (b) 1 Jebb & Sym. 33. June 12. (e) 3 Lev. 205, |