Barrow vs. Bailey-Opinion of Court. mencement of an original action, and in which it is in the nature of an original action. Co. Lit., 296, a. Burr. vs. Atwood. 1 Salk. R., 89; as where it is brought on a recognizance, or by the government to repeal letters patent, or to resume the grant of a franchise. Foster, 12. But in other cases, where the writ is founded upon the judgment of a court of record, and it is intended to bring in a new party, or to have execution upon the judgment, it is a judicial writ, to warn the defendant to plead any matter in bar of the execution. In these cases, it is only a quasi continuation of the former suit, brought merely to revive the former judgment, and may be properly called a writ of execution. 2 Tidd Pr. (8th Ed.,) 1140, Phillips vs. Brown, 6 Term R., 284. It is, however, in all cases considered in the nature of an action, because the defendant may plead to it in any matter in bar of the execution upon the original judgment. O'Brien vs. Ram. 3 Mod. R., 189. The scire facias in the present case, was, therefore, a judicial writ to continue the effect of, and have execution of the former judgment, and this is fully illustrated by the form of the judgment rendered thereon. The statute 8 and 9, Will. 3, says Sergt. Williams, does not direct any judgment to be entered for the damages assessed for the further breach, &c.; therefore it should seem there can only be one judgment, namely, the old judgment for the debt, and, 5, s., damages for the intention, and, 40, s., costs, together with the costs of increase. And in Hankins vs. Broomhead, (3 Bos. & Pul. R., 607,) it was so held in the Exchequer Chamber, and a second judgment for the damages assess ed upon an inquisition, was reversed as erroneous. I Wm. Saund. R. 580. The form of the judgment upon scire facias, in such a case, on a return of scire feci, where the defendant pleaded thereto in bar of execution, is thus given in Tidd App., 515; Barrow vs. Bailey-Opinion of Court. "Therefore it is considered, that the said plaintiff "have his execution against the said defendant of the dam"ages aforesaid, according to the force, form, &c. And "it is also considered by the court here, that the said "plaintiff do recover against the said defendant for his "costs and charges by him laid out about his suit in this "behalf, on occasion of the said defendant having pleaded "to the said writ of scire facias, by the court here ad"judged," &c. It is upon two returns of nihil, then that fact is stated and the default recorded, and execution being awarded, there is no judgment for the costs of the suit and proceedings therein. Our statute, to which allusion was made upon the argument, provides for the mode and manner of serving original process, that which commences or institutes a suit for the first time; and is silent as to the service of mesne process, such as a scire facias, which is the continuation of a suit already instituted. Resort must, therefore, be had to the common law for the rules to govern the subject; and on examination, all the books of practice inform us that two writs of scire facias, with returns of nihil to each, are deemed equivalent to one writ returned scire feci. See Tidd Prac., 1124, 2 Sellon Pr., 196, citing 2 inst., 472, and Andrews vs. Harper, 8 Mod. R., 227; 2 Arch. Pr., 88, citing Yelv. R., 88-122. And this principle is recognized by the courts of several of the States of the Union. In New York, in Cumming vs. Eden, 1 Cowen R., 70; in Pennsylvania, in Chambers vs. Carson, 2 Whart. R., 9; in Indiana, in Kearns vs. The State, 3 Blackf. R., 334; and in North Carolina, in Woodfork vs. Broomfield, 1 Murph. Rep., 187. In some of the States it is recognized by statute, with some modifications, as Virginia, Ohio and South Carolina. See Lee vs. Chilton, 5 Munf. R., 407 Barrow vs. Bailey-Opinion of Court. Dunlevy vs. Ross, Wright R., 287, Grimke, Ex., vs. Magrant, 2 Brev. R., 202. Upon this point, the service of the writ of scire facias, Mr. Sellon observes, that although the intent of the sci. fa. is to give the party against whom execution is about to issue, notice or warning thereof, yet by the general practice it is wholly defeated, for the defendant may be summoned or not as the party thinks fit; and indeed the usual way is to revive the judgment without giving the party any notice." 2 Sellon Pr., 199. The allowance of such a course of practice unexplained, would seem to speak a reproach upon that system of law which claims to be founded on reason and natural justice; and the explanation sems to consist in the distinctive difference between the force and effect of an award of an execution upon a return of scire feci, and an award upon two returns of nihil, in other words, without notice to the defendant. In the first case, if the defendant does not appear, but suffers judgment to go by default, he is forever concluded from any plea or defence which he might have urged. Day vs. Guilford, (1 Lev. R., 41.) But if the Sheriff returns nihil, on which an execution is awarded, the defendant shall have an audita querela, in which he may present his defence, for, not being warned, he was not bound to appear. See Fitz. Nat. Brev., 104. According to modern practice, where there has been no scire feci, but only two nihils, the court will often relieve the party upon motion, and not put him to an audita querela. Anon, 1 Salk Rep., 93, Wicker vs. Creamer, 1 Salk. R., 264, Wheaton vs. Richardson, 2 Stra. R., 1075. If any reason exists for thus allowing an award of execution upon two returns of nihil, it is not stated in any case or book to which the court has had access; but it is quite probable that it may have arisen from the respective principle before stated, that the scire facias can only issue out of the court in which the Barrow vs. Bailey-Opinion of Court. judgment was rendered, and in which the record remains; the application of which might oftentimes defeat a party of his remedy, if personal service was required in cases where the defendant had withdrawn himself and his property from the jurisdiction in which the judgment was rendered, or had secreted himself and his property within the same. At all events, the law has made such provision for permitting the defendant in such case to open the judgment and present his defence by audita querela, or upon motion, that the practice cannot work any injustice. It might be questioned whether, as the judgment of November, 1843, for $40,000, the penalty of the bond, was a subsisting judgment, standing by force of the statute as a security for further breaches, if the proceedings on scire facias had been irregular, or if the plaintiff had sued out an execution on the judgment endorsed to levy the sum due. thereon, without an effort to revive by sci. fa., it would be an irregularity which the appellant here could take advantage of. In Moseley vs. Doe, ex dem. Edwards, (2 Fla. Rep. 429,) where an execution had been issued on a judgment, after the lapse of more than a year and a day, without revival by sci fa., it was ruled by this court, that it was an irregularity only, of which the defendant in execution alone could take advantage. But here it is wholly unnecessary to pass upon the question, as the proceeding on scire facias was strictly regular, according to the rules of law, and consequently the writ of fieri facias awarded thereon, is a legal and valid process, which being returned nulla bona by the proper officer, the respondent in the court below was well entitled to seek the aid of a Court of Equity. The main question in this case is upon the sale and conveyance before mentioned, which is impeached as fraudulent and void as to creditors. Barrow vs. Bailey-Opinion of Court. meditated or The existence of any actual fraud, of any intentional design on the part of the debtor and grantor, Henry Doggett, known to, or participated in by, the appellant, to hinder, delay or defraud creditors, is denied by the answer. Yet, without imputing any moral turpitude to either of the parties to this sale and conveyance, if those facts and circumstances are found to exist, and to have attended the transaction which virtually and indirectly operate the same mischief, and which would, in contemplation of law, be deemed badges of fraud, or presumptions of ill faith, the result is the same; the inference of fraud arises and the law pronounces the transaction, upon principles of public policy, fraudulent and void as to creditors. This is termed legal or constructive fraud. Gibson VS. Love, (4 Fla. R., 264, et seq.,) 1 Story Eq., § 258, 259, 349, 353, et seq. In Hadden vs. Spader, 20 Johns' Rep., 554, Platt, J., says: "The defendant denies that there is "any fraudulent combination to delay or defraud creditors, "but in the same answer he admits a series of facts from in "which both law and equity impute fraud." And so Hendrick vs. Robinson, 2 John. Chancery R., 301, the Chancellor observes:-"The purchasers and vendors say "that this was an honest and bona fide sale, but do not the "facts which they all admit outweigh the declaration? "And can a mere assertion be compared to the unequivo"cal language of the facts and the necessary inference of "law?" Our statute of January 28th, 1823, aginst conveyances "to delay, hinder or defraud creditors," (Thomp. Dig., 215,) is a transcript from the British statute of 13th Elizabeth, c., 5, which latter act has always received a favorable and liberal interpretation in all the courts both of law and of equity, in suppression of the fraud. It declares all fraudulent conveyances to be void; and whether a conveyance |