Page:Federal Reporter, 1st Series, Volume 4.djvu/788

 lie FEDERAL REPORTER. �method of proceeding, when they have not in terms declared Buch intention. �J^ow far the court of appeals of Maryland have been from giving countenance to the suggestion that any statute passed by the legislature is to be construed as interfering with the "writ of 8ci. fa., vfhen it does not in terms do so, may be seen from the decision of that court in the case of Kirkland v. Krebs, 34 Md. 93, in which it was held that the stay laws, prohibiting duriag a certain time ail writs of execution, did not suspend the issuing of writs of scire fadas, although the only judgment on the sci. fa. would be "Jiat executio," thus awarding an execution which the stay law had prohibited. �These considerations would, we think, dispose of this ob- jection to the present writ, even were it coneeded, as argued, that the writ of scire facias to revive a judgment cannot issue in any case, when it is not necessary or required to enable execution to issue. But to this proposition we do not assent. �The statute of Westminster, 2nd, (13 Edw. I. St. 1, c. 45,) granted this writ in order that the plaintiff, in a personal action, if he did not have execution within a year and a day, might not be obliged, as he was by the common law, to bring a new action upon his judgment. This new remedy was considered to be in addition to, and not in substitution of, the former remedy, and it has been held that he might, if he chose, still bring his action on the old judgment, (Pos- ter on Scire Facias, 5 ;) and so, too, if the plaintiff unneces- sarily within the year and a day sued out a writ of sci. fa., it was never held that the writ would not lie ; the only pen- alty was that he could not have his capias until he had ob- tained his new judgment of "Jiat executio" on the sci, fa. Foster on Scire Facias, 27, note x. The court of ap- peals of Maryland would seem to have recognized this as an established rule in a case that came before them under the act of 1862, c. 262. �Under that act attachments by way of execution were al- lowed at any time within twelve years, but if issued more than three yeara after the date of the judgment they were to be fubject to the same defences as in cases of scire facias. Un- ����