Can a writ of execution be obtained by scire facias?

Saskatchewan, Canada


The following excerpt is from Stubbs v. Allen, 1934 CanLII 182 (SK CA):

In this case of Holmes v. Newlands, the proceedings by scire facias were instituted although no presumption of satisfaction of judgment had arisen by lapse of a year and a day. The report shows that, before proceeding by scire facias, the plaintiff had, of his own motion, caused a writ of execution to be issued upon the judgment, and subsequently an alias writ. This alias writ had not been returned when the plaintiff caused the writ of scire facias to issue upon the judgment, and the defendant, contending that the alias writ of execution ought first to have been returned, moved to set the scire facias aside for irregularity. But the objection was overruled on the ground that the defendant might plead to the writ the taking of his goods, if any were taken, under the alias writ of execution. This case establishes therefore two points of practice under the old procedure: (1) That proceedings by scire facias might be instituted upon a judgment although, the plaintiff having issued execution within a year and a day, the presumption of satisfaction had not arisen; and (2) That the mere existence of an unreturned writ of execution did not vitiate the scire facias proceedings.

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