Cookson and Waddington against Turner

Cookson and Waddington against Turner. Philadelphia, 1811. Tuesday, April 2. There is no necessity for a scire facias to revive a judgment in foreign attachment. THIS was a foreign attachment, in which judgment was entered at March term 1797. A writ of inquiry was executed in February last, when damages were assessed at 2808 dollars; and a motion was now made to set aside the inquisition, upon the ground that the judgment had not been revived by scire facias post annum et diem. Meredith and Rancie in support of the motion. The statute of 13 Ed. 1. c. 45., requires a scire facias in all judgments in personal actions; and the plaintiff cannot have a writ of inquiry after more than a year’s delay upon an interlocutory judgment, without it. Haw v. Cuton,6 Bac. Ab. 107., Scire Facias C, As the present attachment was laid in the plaintiffs’ hands, it was against equity in them to proceed without giving us notice. Dallas and Tilghman contra. The rule of reviving a judgment by scire facias before execution, was intended to prevent a surprise upon the defendant; Mitchell v. Cue; and therefore it does not apply to the case of a foreign attachment, which is a proceeding against an absentee, who if he were present, would not be permitted to give evidence to the jury of inquiry, M'Clenachan v. M'Carty; and whose debt to the plaintiff, the garnishee is not permitted to dispute. A writ of scirefacias would answer no purpose, because there is nobody to warn. 2 Burr. 660. 1 Dall. 375. [MAJORITY — Per Curiam.] Per Curiam. We are of opinion that the case of a foreign attachment differs from other actions. The defendant never was in court; and as there is no person to be warned, a scire facias is not necessary. Motion refused.