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and prosecute the same to the removal of such person from office." 2
It has been said that the jurisdiction here conferred is limited to those actions in which the sole question as to the title to an office arises from the denial to citizens of the right to vote on account of their race, color, or previous condition of servitude.3
A civil action in the nature of a quo warranto to try the right to exist as a corporation or to annul a corporate charter may be removed to the Circuit Court of the United States, if the defendant has a defense founded upon the Constitution or a statute of the United States.1
A writ of error from the Supreme Court of the United States will issue in a case otherwise within its appellate jurisdiction to the judgment of a State court, removing or refusing to remove a person from a State office in an action in the nature of a quo warranto, even when the office is that of Governor of such State. In such a case where a judgment of the State court removes a State officer and thereby vacates the office, and a writ of error from the Supreme Court is allowed for the reversal of the judgment, the person appointed to the vacancy with knowledge of the grant of the writ of error on the part of the judge of the Supreme Court of the State making the appointment, but before the filing of the writ in the clerk's office where the record remains, is guilty of no contempt of the Supreme Court in assuming to perform the duties of the office." It has been held that an action of quo warranto to try the title of a citizen of another State to an office in a corporation of the State where the suit is brought, cannot be removed into a Federal court because of a difference of citizenship between the defendant and the relator. Orders have been granted by a District Court to compel persons claiming still to be district. attorney and marshal to deliver the official books and papers in their possession to others who had been appointed by the President to succeed them, and whose title they disputed.
2 U. S. R. S., § 186. Cf. U. S. R. S., § 2010, repealed by 28 Stat. at L. 36; Ex parte Warmouth, 17 Wall. 64.
3 Johnson v. Jumel, 3 Woods, 69. 4 Ames v. Kansas, 111 U. S. 449; State of Illinois v. Illinois Cent. R. Co., 33 Fed. R. 721.
Boyd v. Nebraska, 143 U. S. 135. See the vigorous dissenting opinion of Mr. Justice Field in the latter case. "Foster v. Kansas, 112 U. S. 201.
7 Place v. Illinois (C. C. A.), 69 Fed. R. 481.
8 In re Parsons, 150 U. S. 150; In re
5 Foster v. Kansas, 112 U. S. 201; Nissinger, Ibid.
In an action in the nature of a quo warranto to try the title to an office, the amount of salary for the term as to which the dispute exists is the value of the subject-matter in dispute.
The Supreme Court of the District of Columbia has jurisdiction to try the title to a municipal office in the District by an action in the nature of a quo warranto.10 The extent of the jurisdiction of the Supreme Court of the District of Columbia to issue the writ of quo warranto is uncertain." It has been held that a writ of quo warranto to try the title to an office cannot be issued except at the instance of the United States, even by the consent of both parties.12
A writ of quo warranto in a Territorial court to test the right of the defendant to exercise the functions of a Territorial judge, cannot be brought in the name of the Territory. It must be brought in the name of the United States.14
§ 368b. Writs of scire facias.-A scire facias is a judicial writ founded on some matter of record, as a judgment, recognizance, or letters-patent, on which it lies either to enforce the execution of them or to vacate or set them aside.1 In England a scire facias was the usual proceeding to repeal a patent, and was brought in chancery where the patent was of record.2 In the United States a writ of scire facias is not in use as a chancery proceeding; and the appropriate method to obtain the vacation of a patent is by a bill in equity brought by the United States. In one case a writ of scire facias to forfeit the title of a corporation to lands was maintained. Although in strictness a scire facias is not an original but is merely a judicial writ, in a certain degree it is in the nature of an original, and is so far an original that the defendant may plead to it, and that in the common law a plea of a release of all causes
9 Gorman v. Havird, 141 U. S. 206. 10 U. S. v. Addison, 6 Wall. 291. 11 See the remarks of Mr. Justice Bradley in the Proceedings before the Electoral Commission, p. 43.
12 Wallace v. Anderson, 5 Wheat. 291.
2 Atty. Gen. v. Vernon, 1 Vernon, 277, 282; King v. Butler, 3 Levinz, 220; Mowry v. Whitney, 14 Wall. 434, 440.
3 Mowry v. Whitney, 14 Wall. 434; U. S. v. Am. Bell Tel. Co., 128 U. S. 815; U. S. v. Stone, 2 Wall. 525. See 13 Territory v. Lockwood, 3 Wall. Pennsylvania ex rel. Atty. Gen. v.
Boley, 1 Weekly Notes, 302.
4 Vermont v. Society for the Propagation of the Gospel, 1 Paine, 652.
§ 3686. 12 Sellon's Pr. 187; Winder v. Caldwell, 14 How. 434, 442.
and executions was a good plea in bar to a scire facias, and concluded “if the plaintiff ought to have or maintain his action," etc. It has been held that a writ of scire facias founded upon a claim to a mechanics' lien filed in accordance with the act of March 2, 1883,6 may be maintained without any declaration, provided that the writ recites the bill of particulars of the plaintiff's claims as filed; that a Federal court in Pennsylvania has jurisdiction to grant the writ of scire facias sur mortgage, according to the form of practice prescribed by the State statute; and that in Illinois a writ of scire facias will not lie to foreclose a mortgage not duly acknowledged.' The writ of scire facias was issued to revive and obtain execution against the taxing district of Shelby county, which was the successor of the city of Memphis, on a judgment recovered against the city of Memphis before the repeal of its charter.10 In that case, the order upon the return of the scire facias awarded execution for the amount of the original judgment, and simple interest, "which is, however, to be calculated in the marshal's office on the execution as in all cases." 11 A scire facias has been issued to show cause why execution should not be taken de bonis propriis; 12 and to enforce the liability of the indorser of a writ for costs.13 The right to a writ of mandamus for the enforcement of a judgment is equivalent to the right to issue an execution thereon for the purpose of an application to revive the judgment on scire facias." The writ to collect a judgment of the Federal court when issued against the representatives of one of the original parties, or against the indorser of a writ, is a continuance of the original action,15 and an ancillary proceeding which can be maintained irrespective of the citizenship of the parties or the amount in controversy.16
"The writ of scire facias is no more an execution than an ac
5 Fenner v. Evans, 1 T. R. 267; Winder v. Caldwell, 14 How. 434, 443; 2 Sellon's Pr. 187.
64 St. at L. 659.
11 Grantland v. Memphis, 12 Fed. R. 287, per Hammond, J.
12 Teasdale v. Branton, 2 Hayw. 377. 13 Pullman's P. C. Co. v. Washburn,
7 Winder v. Caldwell, 14 How. 434, 66 Fed. R. 790. 435, 443.
8 Black v. Black, 74 Fed. R. 978.
9 Kenosha & R. R. Co. v. Sperry, 3 Biss. 309.
19 Grantland v. Memphis, 12 Fed. R. 287.
14 Wonderly v. Lafayette County, 74 Fed. R. 702.
15 McKnight v. Craig's Adm'rs, 6 Cranch, 183, 187.
16 Pullman's P. C. Co. v. Washburn, 66 Fed. R. 790; supra, § 21.
tion of debt would have been." 17 It has been held: that in a scire facias to revive a judgment in an ejectment, the statement that the term recovered is yet unexpired is sufficient; and that there is no need of stating in the writ the term as laid in the declaration, nor the facts which show its continuance; 18 that to a scire facias to revive a judgment in ejectment it is not necessary to make the executor or administrator of the deceased defendants parties, but that the judgment must be revived against the heirs of the defendant in ejectment and the terretenants; 19 that after a conveyance by the lessor of the plaintiff in ejectment to a third person of land for which judgment has been obtained, a scire facias or writ of habere facias must issue in the name of the original plaintiff in the original judgment.20 A scire facias to show cause why a forfeiture of lands for failure to perform a condition in the grant requiring cultivation should not be enforced, containing an express averment that the lands had not been cultivated, was held sufficient." Averments in such a writ tending to show a violation of its charter by a corporation in matters not affecting the grant of such land, were disregarded as irrelevant, since such matter, it was held, could only be pleaded in a direct proceeding to vacate the charter of the corporation," and a general allegation of non-performance of the conditions of the grant of the lands was construed as having reference to the violations which were specifically pleaded. A demurrer to a writ of scire facias to revive a judgment in ejectment raises only questions of law on the facts stated in the writ; and consequently no presumption from lapse of time against the judgment on which the writ was issued can be considered, in a State where there is no Statute of Limitations to the revival of a judgment, and lapse
17 Deneale v. Stump, 8 Pet. 526, 528, 531, per Marshall, C. J.; Hatch v. Eustis, 1 Gall. 160; McKnight v. Craig's Adm'rs, 6 Cranch, 183.
18 Lessee of Walden v. Craig's Heirs, 14 Pet. 147, 151.
murrable because issued in the name of the assignor; but it is sufficient if the writ shows that it was issued on behalf of, and to the use of, the assignee, and permission may be given to amend the writ by striking out
19 Lessee of Walden v. Craig's the name of the assignor. Wonderly Heirs, 14 Pet. 147.
V. Lafayette County, 74 Fed. R. 702.
21 Vermont v. Society for Propagation of the Gospel, 1 Paine, 652. 22 Ibid.
20 Penn v. Klyne, Pet. C. C. 446. Under the practice in Missouri, a writ of scire facias to revive a judgment which has been assigned is not de
of time can operate as a defense only by way of evidence.24 The State Statute of Limitations is a defense to a scire facias to revive an action not founded upon a statute of the United States, or an action by the receiver of a national bank to collect a stockholder's subscription.25 Where there is no declaration, a demurrer will lie to a writ of scire facias itself.26 The declaration upon a scire facias is usually a copy of the writ.”
The failure of the defendant in a scire facias against bail to join in a demurrer interposed to one of his two pleas was held a waiver of such plea.28 Upon a writ of scire facias to revive an action or a judgment against the personal representative of a deceased defendant, such personal representative can only plead what the decedent could have pleaded," unless there be some matter which there was no opportunity to plead in the original action.30 Upon a scire facias to revive a final or interlocutory judgment, the defendant cannot avail himself of matters of defense which occurred previous to the original judgment. Nor plead a general denial. A payment which might have been pleaded to the original scire facias to revive a judgment cannot be given in evidence on a second scire facias.33 To a scire facias to revive a judgment in ejectment, for the term and damages, the defendant cannot plead a conveyance by the lessor of the plaintiff, made subsequent to the judgment. If an heir sells after judgment against the executor upon the plea of plene administravit found for him, and before scire facias against the heir, the purchaser may, in the name of the heir, plead to the scire facias assets in the hands of the executor. As a general rule the practice of the State where
24 Lessee of Walden v. Craig's How. 212; Allen v. Fairbanks, 40 Heirs, 14 Pet. 147, 152. Fed. R. 188.
25 Butler v. Poole, 44 Fed. R. 586. So held of a State statute which by its terms was applicable to actions upon a judgment. Browne v. Chavez, 181 U. S. 68; supra, § 373.
26 Vermont v. Society for Propagation of the Gospel, 1 Paine, 652. 27 Ibid.
28 Morsell v. Hall, 13 How. 212. 29 McKnight v. Craig's Adm'rs, 6 Cranch, 183, 187; Morsell v. Hall, 13
30 Hatch v. Eustis, 1 Gall. 160. 31 U. S. v. Thompson, Gilp. 614; Morsell v. Hall, 13 How. 212; McKnight v. Craig's Adm'rs, 6 Cranch, 183; Pennock v. Gilleland, 1 Pittsb. 37.
32 Wonderly v. Lafayette County, 77 Fed. R. 665.
33 Hatch v. Eustis, 1 Gall. 160; Wilson v. Hurst, Pet. C. C. 441; Wilson v. Watson, Pet. C. C. 269.
34 Penn v. Klyne, Pet. C. C. 446.