Fitzhugh ex rel Mackall v. Blaice

9 F. Cas. 192, 2 D.C. 37, 2 Cranch 37

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1811
• Status: Published

Opinion

The Court

(Fitzhugh, J., absent,)

was of opinion that the scire facias was not a new suit; and that the judgment upon it was such a judgment in a suit pending in a court in Maryland, on the 27th of February, 1801, as would justify the clerk of this Court to issue an execution upon the original judgment thus revived, under the 13th section of the act of 27th February, 1801.

Mr. Law then contended, that if the scire facias was not a new suit commenced after the date of that act, the exemplification should have been of the whole record, including the original judgment and the proceedings which led to it, and not of the proceedings upon the scire facias alone.

Mr. Law also objected that the execution does not pursue the original judgment. It is for a certain sum to be released on the payment of such sum as Leonard Mackall, for whose use the execution is docketed, shall say is due ; which is no part of the original judgment.

The CouRT (Fitzhugh, J., absent,) quashed the execution, on the ground that the exemplification of the original judgment was not filed before issuing the execution; and because the release was uncertain.