Kirby v. Cash

Mr. Justice Gordon

delivered the opinion of the court, March 22d 1880.

The writs of scire facias, in the cases mentioned in the case stated, were issued to December Term, 1877, within about ten days of five years from their entry. They were served on Cash’s assignee as terre-tenant, and there was a return nihil habet as to the other defendants. On the 7th of January 1879, alias writs were issued and service made upon D. S. Pratt, M. C. Wells,. James Bryant and James McIntyre, terre-tenants.

The learned judge of the court below, following the case of The Westmoreland Bank v. Rainey, 1 Watts 26, held that, as to the terre-tenants, the alias writs were too late, and, so, ordered judgments to be entered for the defendants.

This was erroneous, as being in direct conflict with the case of Lichty v. Hochstettler, 10 Norris 444. In that case the judgment was entered on the 27th of February 1872; a scire facias was issued on the 2d day of February 1877, which was served on the defendant alone. To April Term, 1878, an alias was issued and served on the terre-tenants. We held, reversing the court below, that this service was in time to continue the lien as to these terretenants. After a careful examination of all the authorities, we came to the conclusion “ that the Acts of 1798 and 1827 ai’e statutes of limitation ; that if the process issues a single day within the time it saves the bar; that with this process, though not named in it, the terre-tenant may be connected by an alias, and that the time, the reasonable time, within which this may be done is the statutory period of live years.”

It will be seen that these two cases are strikingly similar, the only point of difference being that, in the case cited, service was made of the first scire facias on the defendant, whilst, in the case in hand, it was made on one of the terre-tenants. This, however, is of no significance; for, as was ruled in In re Meason’s Estate, 4 Watts 341, and, as will also appear by the act itself, the issuing of the scire facias alone continues the lien of the judgment for the period of five years from the date of such issue, and within that period all whom it is intended to charge with that lien may bo brought in and judgment had against them.

The judgment is reversed. And it is ordered that judgments in the two cases mentioned in the case stated be entered against the defendants and in favor of the plaintiff.