SCIRE FIERI INQUIRY
(bouvier) | SCIRE FIERI INQUIRY, 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
facias, de bonis propriis, might formerly 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 levy 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 writs 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
administrator 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.
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