without the
necessity of a
scire facias.
(In annuity

deeds).

to be entered up against the said A. B. as aforesaid, is in-
tended and agreed to be a further security to the said C. D.,
his executors, administrators, and assigns, for the said an-
nuity, yearly rent, or sum of £ hereinbefore mentioned;
and that no execution or executions shall be issued or taken
out upon the said judgment, unless and until the said an-
nuity, yearly rent, or sum of £shall be in arrear by the
space of forty-five days next after the same shall become due
and payable; and that in case, and when, and so often as the
said annuity, yearly rent, or sum of £, or any part
thereof, shall be in arrear or unpaid by the space of
days next after any of the said days or times whereon the
same ought to be paid as aforesaid, then and in such case,
and so often as the same shall happen, it shall and may be
lawful to and for the said C. D., his executors, administra-
tors, and assigns, to sue out such execution or executions
upon or by virtue of the said judgment by which the said
annuity so in arrear shall be secured, as he or they shall
think fit, for the recovery of the arrears of the said annuity,
yearly rent, or sum, and all costs, charges, and expenses (if
any), which he the said C. D., his executors, administrators,
and assigns, or any of them, shall bear, sustain, or be put unto
for or by reason of the nonpayment thereof. And it is hereby
agreed and declared that the said C. D., his executors, ad-
ministrators, and assigns, shall, by, with, and out of the mo-
ney to be raised by the ways and means lastly hereinbefore
mentioned, pay, satisfy, and discharge the said annuity,
yearly rent, or sum of £, or such part thereof as shall
so be in arrear, and all costs, charges, and expenses (if any)
to be occasioned by the nonpayment thereof, and shall pay
the residue and surplus (if any) of the money so to be raised
to the said A. B., his executors, administrators, and assigns,
for his and their proper use and benefit. And it is hereby
further agreed and declared between and by the said parties
to these presents, that it shall not be necessary for the said
C. D., his executors, administrators, or assigns, to revive or
cause to be revived the said judgment, or do any act, matter,
or thing to keep the same on foot, notwithstanding the same
judgment shall have been entered of record for the space of

one year or upwards (a); nor shall it be necessary for him or them to issue out any writ or writs of scire facias to assess

(a) According to Mr. Serjeant Williams, it is an established rule of practice, that if a plaintiff has judgment with a cesset executio, or stay of execution for a year, he may after that period take out execution without a scire facias, because the delay is by consent of the parties, and in favour of the defendant. 2 Wms. Saund. 72 c, note (4). In Hiscocks v. Kemp, 3 Adol. & Ell. 676, this rule was called in question, partly on the ground that it was contrary to the express provisions of the statute of Westminster 2, (13 Ed. 1, stat. 1, c. 45), and partly that the practice rested on no sufficient authority. As to the first objection, the Court considered it to arise from a mistaken interpretation of the act, observing that the scire facias in personal actions was given by that statute rather in aid of plaintiffs than in restraint of them. "At the common law," (continued the Court, per Lord Denman, C. J.), "a presumption arose, from a plaintiff's delay beyond a year, that his judgment either had been satisfied, or from some supervening cause ought not to be allowed to have its effect in execution. After such delay, therefore, he was not allowed to issue execution as a matter of course, but was driven to bring a new action on the judgment. The scire facias, which had been used at the common law for the purpose of executing judgments in real actions after a year and day's delay, was therefore adopted by the statute as a less expensive and dilatory course for the plaintiff, and as equally affording protection to the defendant, if he had any reason to shew why the execution should not issue. It is not then in contravention of the statute, to hold that a scire facias, given in lieu of the action on the judgment, is not necessary where such action would not have been so; and what arguments could a defendant have used to induce the setting aside an execution, on the ground of delay, and the legal presumptions consequent thereon, when such delay was shewn to have originated, and the presumptions therefore to fall to the ground, by his own act?"

As to the observation that the practice rested not on sufficient authority, it was answered, "the truth is, as it often happens in points of practice, that the written authority for it is not so much to be found in any one or more express decisions, as to be collected from the analogies of other decided points within the same principle, and from the undisputed dicta of counsel or judges, scattered through the books." 3 Adol. & Ell. 682. Until, indeed, the practice is doubted, it often remains undecided by the Courts; and when once judicially decided, it ceases to be a rule of practice merely, and becomes a rule of law. The rule in question, as laid down by Mr. Serjeant Williams, being in accordance with the practice of the Courts, long considered as established, not inequitable or inconvenient in itself, nor at variance with any legal principle, statute, or decided authority, the Court accordingly decided in favour of it. Hiscocks v. Kemp, 3 Adol. & Ell. 676; and see Powis v. Powis, 6 B. Moore, 517.

For preserving
the benefit of
a judgment,
without the

necessity of a

certificate of

the life of the

party.

damages; and that the said A. B., his heirs, executors, or
administrators, shall not nor will have or take, or attempt,
by any ways or means whatsoever, to have or take any ad-
vantage of the want of reviving or keeping the said judg-
ment on foot, nor of the want of issuing out any writ or writs
of scire facias as aforesaid; and that if he or they shall
attempt so to do by action or other legal proceeding or pro-
ceedings whatsoever, this present agreement shall and may
be pleaded and shewn in bar thereto, any rule or practice of
the courts, or any of them, to the contrary thereof in anywise
notwithstanding. Provided always, and it is hereby agreed
and declared between and by the said parties to these pre-
sents, that after the decease of the said A. B., and full pay-
ment to the said C. D., his executors, administrators, and
assigns of the said annuity, yearly rent, or sum of £-
and all arrears thereof, up to the day of the decease of the
said A. B., and of all such costs, charges, and expenses as
aforesaid, the said C. D., his executors, administrators, or
assigns, shall and will, at the request, costs, and charges of
the heirs, executors, or administrators of the said A. B.,
acknowledge satisfaction upon the said judgment on the
record thereof in due form of law, or do any further or other
reasonable acts, matters, or things that may then be re-
quired in regard thereto.

LXII. And it is hereby agreed, that the judgment to be entered up by virtue of the aforesaid warrant of attorney shall be a security for payment of the said sum of £ and inscire facias or a terest, according to the true intent and meaning of these presents, and that no execution shall be issued or taken out upon the judgment to be entered up as aforesaid, unless (In mortgages). default shall be made in payment of the said sum of £ and interest, or some part thereof respectively, at the times and in manner hereinbefore appointed for payment thereof respectively; And that it shall not be necessary for the said A. B. [mortgagee], his executors, administrators, or assigns, to revive or cause to be revived the said judgment, nor do any act, matter, or thing in order to keep the same on foot, in case the said judgment shall remain entered on record for the space of one year or upwards, without any proceedings

upon the same (a), or in case of the death (b) of the said C. D. [mortgagor], his executors, administrators, or assigns, but yet the said A. B. shall be at liberty and have full and lawful power and authority to issue any writ or writs of execution upon the same judgment, in the same or the like manner as if the same judgment had been revived and kept on foot, or the said C. D. were living, notwithstanding any rule, usage, or practice of the court in which the said judgment shall be entered on record to the contrary; and that the said C. D., his heirs, executors, or administrators, or any of them, shall not nor will have, take, or receive any advantage for want of the said judgment having been revived or kept on foot, or by reason of any other defect therein or in respect thereof.

LXIII. And it is hereby declared and agreed (c) by and Provisions re

(a) Vide art. lxii. note.

(b) Notwithstanding the dictum, or supposed dictum, of Lord Tenterden in Morris v. Jones, 3 Dowl. & Ryl. 605, 2 Barn. & Cr. 243, it has since been held, that an agreement of this kind, waiving the objection of the defendant's death, is not binding upon his representatives, and still less on the Court. Heath v. Brindley, 2 Adol. & Ell. 365.

(e)" And whereas, upon the treaty for the purchase of the said leasehold messuages, &c. it was agreed that the judgment to be confessed upon or by virtue of the said hereinbefore recited bond and warrant of attorney of the said A. B. should be forthwith entered up of record in her Majesty's Court of Queen's Bench at Westminster (d); and that a writ of fieri facias should also be forthwith issued against the said A. B. for the purpose only of being returned nulla bona, and with a view only to avoid the necessity of reviving the same judgment (as far as such proceeding can avoid the same), in the event of default being made in the payment of the instalments hereinbefore covenanted to be paid by the said A. B., and by reason whereof it shall or may be necessary to issue execution against the said A. B."

(d) By one of the rules of the Common Law Courts (H. T. 4 Will. IV. Rule 3), it is ordered, that "All judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in term or vacation, when signed, and shall not have relation to any other day."

specting bond and judgment given for secur

ing the payment

of instalments of purchasemoney, to pre

vent the neces

sity of reviving judgment, and

to regulate the

executions to be

levied under

same.

between the said A. B. and C. D., that a judgment against the said A. B. at the suit of the said C. D., his executors or administrators, shall and may be forthwith entered up of record in her Majesty's Court of Q. B. at W., upon or by virtue of the said recited bond and warrant of attorney of the said A. B., and that a writ of fieri facias shall and may be issued against the said A. B. for the purpose only of being returned nulla bona upon the record of the said judgment; And that the said judgment, so to be entered of record as aforesaid, with such proceedings to be had thereon as aforesaid, shall be considered as a security only for the better and more effectually securing the payment to the said C. D., his executors, administrators, or assigns, of the said sum of £, and interest, by the said A. B., in manner aforesaid, according to the tenour of the said bond of the said A. B., and that no further or other execution or executions shall be issued or taken out upon the said judgment, unless and until one or more of the said respective instalments, or some part or portion thereof, shall be in arrear for six calendar months next after some or one of the days or times hereinbefore limited and appointed for payment thereof as aforesaid: Provided always, and it is hereby declared and agreed by and between the said A. B. and C. D., and the said A. B. for himself, his heirs, executors, and administrators, doth covenant, promise, and agree, to and with the said C. D., his executors, administrators, and assigns, that when and so often as the said several instalments hereinbefore covenanted to be paid by the said A. B., or any or either of them, or any part or parts of any or either of them, shall be behind and unpaid by the space of six calendar months next over or after any one of the days or times hereinbefore mentioned or appointed for payment thereof, then and so often and in every such case it shall and may be lawful to and for the said C. D., his executors, administrators, and assigns, to sue out execution or executions upon or by virtue of the said intended judgment, for the recovery, not only of the arrears of the said instalments, but also of the whole residue of the said principal sum of £, and interest, notwithstanding the same may not, according to the instalments aforesaid, be then due and payable, and all costs of suit, sheriff's fees, poundage, and other incidental expenses, and also all costs, charges, and