Page:Federal Reporter, 1st Series, Volume 4.djvu/787

, , BEOWN V. CHESAl'EAKE A OHIO CANAL ^0, ITS �, inetead of three, and the word "discharge" of parties is used instead of "change." Under the old law it wàs always held necessary to have a scire facias if there was within the three years a change of parties; and, as the actof 1862isrepealed, it must be now necessary under the act of 1874, if there be a change Within twelve years, unless the use of the word "dis- charge" of parties instead of the word "change" is to have the effect of altering this long-established rule. �It waa contended in argunient that the word "discharge" had been used ).n the act advisedly, and was intended to refer to defendants only, as they were the only parties who could be said to be discharged from a judgment; and that as the law of 1874 makes no exception with regard to change of plaintiffs, it is a peremptory direction that execution may issue at any time within 12 years, without regard to any change of plain- tiffs. �It seems to us quite probable that either the word "dis- charge" was used inadvertently, or is a misprint for "change ;" but if it is not, and is to be construed as applying to defend- ants only, then the law of 1874 has left the case of a change of plaintiffs entirely unnoticed. An execution cannot issue in the name of a dead plaintiff, and unless by special stat- ute, as in the repealed act of 1862, some summary method is provided, the only method known to the courts of Mary- land by which a new party entitled to stand in the place of a deceased plaintiff can become a party to a judgment, and issue execution thereon, is by scire facias. This has been the common law for centuries, (Foster on Scire Facias, 99,) and the rule has a strong foundation in justice and equity. By this writ the defendant is warned to appear in court before the seizure of his property, and show any de- fences he may have, — defences of which the new plaintiff may never have had any opportnnity of knowledge, — and also an opportunity is given him of requiring the new party to show how and by what right he claims to have become entitled to the judgment. Barry v. Hoffman, 6 Md. 78. It is not to be presumed that the legislature of Maryland intended indi- rectly to abolish so ancient, well-established, and universal a ����