Randolph County IL Archives Court.....Cox, V McFerron 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:14 pm

Source: Reports Of Cases Illinois
Written: 1819-31

July Term 1820.

Thomas Cox, Appellant, v. John McFerron, Appellee.

APPEAL FROM RANDOLPH.

A return of two nihils to a scire facias to foreclose a mortgage, is 
equivalent to an actual service.

This was an action commenced by scire facias in the Randolph circuit court, by 
McFerron against Cox, to foreclose a mortgage executed by the latter to the 
former. There were two nihils returned, upon which, the court on motion gave 
judgment for McFerron. The point made was, whether the return of two nihils on 
a scire facias was equivalent to the actual service of process, when the 
defendant can be personally served.

Opinion of the Court. It appears, that by the common law, all writs of scire 
facias were proceeded on in the same manner by the return of two nihils; this 
was discretionary with the party issuing the process. Our statute gives this 
writ to the mortgagee, and, no doubt, in giving the writ, all the attributes 
that belonged to it at common law, were given also. It is to have a common law 
operation, and possess the common law incidents.

We are of opinion that the return of two nihils, is equivalent to a service, 
and authorized the court to render judgment as in cases where there has been 
an actual service. The judgment is therefore affirmed. (1)

Judgment affirmed.

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(1) When the statute has provided remedies by writ of scire facias, summons in 
the nature of a scire facias, which were unknown to the common law, and which 
are of a personal character merely, the same must be executed like any other 
ordinary process—by personal service on the parties. McCourtle v. Davis, 2 
Gilm., 306.

Two nihils, in case of scire facias upon a record, or recognizance, are 
sufficient to give the court jurisdiction of the persons of the cognizors, and 
to authorize judgment of execution. Choate v. The People, 19 Ills. R., 63. 
Sans v. The People, 3 Gilm., 327. Besimer v. The People, 15 Ills. R., 440.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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