英文法律词典 S-10

SCINTILLA¹ JURIS, estates; A spark of right. A legal fiction, resorted to for the purpose of enabling feoffees to uses to support contingent² uses when they come into existence, thereby³ to enable the statutes⁴ of uses, 27 Henry VIII., to execute them. 4 Kent's Com. 238, et seq., and the authorities there cited, for the learning upon this subject.

SCIRE FACIAS, remedies, practice. The name of a judicial⁵ writ⁶, founded upon some record, and requiring the defendant⁷ to show cause why the plaintiff should not have the "advantage of such record; or, when it is issued to repeal⁸ letters-patent, why the record should not be annulled⁹ and vacated. 3 Sell. Pr. 187; Grah. Pr. 649; 2 Tidd's Pr. 982; 2 Arch. Pr. 76; Bac. Abr. h. t.

2. It is, however, considered as an action, and in the nature of a new original. Skin. 682; Com. 455.

3. The scire facias against a bail¹⁰, against pledges in replevin, to repeal letters-patent, or the like, is an original proceeding¹¹; but when brought to revive a judgment¹² after a year and a day, or upon the death or marriage of the parties, when in the latter case one of them is a woman; or when brought on a judgment quando, &c., against an executor, it is but a continuation of the original action. Vide 1 T. R. 388. Vide generally, 11 Vin. Ab. 1; 19 Vin. Ab. 280 Bac. Ab. Execution, H; Bac. Ab. h. t. 2 Saund. 72 e, note, 3; Doct. Pl. 436 Bouv. Inst. Index, h. t.

SCIRE FACIAS AD AUDIENDUM ERRORES. The name of a writ which is sued out after the plaintiff in error has assigned his errors. F. N. B. 20; Bac. Ab. Error F.

SCIRE FACIAS AD DISPROBANDUM DEBTTUM. The name of a writ in use in Pennsylvania, which lies by a defendant in foreign attachment¹³ against the plaintiff, in order to enable him, within a year and a day next ensuing the time of payment to the plaintiff in the attachment, to disprove or avoid the debt recovered against him. Act relating to the commencement of actions, s. 61, passed June 13th, 1836.

SCIRE FECI, practice. The return of the sheriff, or other proper officer, to the writ of scire facias, when it has been served; scire feci, "I have made known."

SCIRE FIERI INQUIRY¹⁴, Eng. law. The name of a writ, the history of the origin of which is as follows: when on an execution de bonis testatoris against an executor the sheriff returned nulla bona and also a devastavit, a fieri fac-ias, de bonis propriis, might formerly¹⁵ have been issued against the executor, without a previous inquisition finding a devastavit and a scire facias. But the most usual practice upon the sheriff's return of nulla bona a to a fieri facias de bonis testatoris, was to sue out a special writ of fieri facias de bonis testatoris, with a clause in it, "et si tibi constare, poterit," that the executor had wasted the goods, then to levy¹⁶ de bonis propriis. This was the practice in the king's bench till the time of Charles I.

2. In the common pleas a practice had prevailed in early times upon a suggestion in the special writ of fieri facias of a devastavit by the executor, to direct the sheriff to inquire by a jury, whether the executor had wasted the goods, and if the jury found he had, then a scire facias was issued out against him, and unless he made a good defence thereto, an execution de bonis propriis was awarded against him.

3. The practice of the two courts being different, several cases were brought into the king's bench on error, and at last it became the practice of both courts, for the sake of expedition, to incorporate the fieri facias inquiry, and scire facias, into one writ, thence called a scire fieri inquiry, a name compounded of the first words of the two writs¹⁷ of scire facias and fieri facias, and that of inquiry, of which it consists.

4. This writ recites the fieri facias de bonis testatoris sued out on the judgment against the executor, the return of nulla bona by the sheriff, and then suggesting that the executor bad sold and converted the goods of the testator to the value of the debt and damages recovered, commands the sheriff to levy the said debt and damages of the goods of the testator in the hands of the executor, if they could be but if it should appear to him by the inquisition of a jury that the executor had wasted the goods of the testator, then the sheriff is to warn the executor to appear, &c. If the judgment had been either by or against the testator or intestate, or both, the writ of fieri facias recites that fact, and also that the court had adjudged, upon a scire facias to revive the judgment, that the executor or administrator¹⁸ should have execution for the debt, &c. Clift's Entr. 659; Lilly's Entr. 664; 3 Rich. Pr. K. B. 523.

5. Although this practice is sometimes adopted, yet the most usual proceeding is by action of debt on the judgment, suggesting a devastavit, because in the proceeding by scire fieri inquiry the plaintiff is not entitled to costs, unless the executor appears and pleads to the scire facias. 1 Saund. 219, n. 8. See 2 Archb. Pr. 934.