SCIRE FIERI INQUIRY - The Law Mind Legal Dictionary

SCIRE FIERI INQUIRYAuthored

The Law Mind • 1209 words

Definition

A scire fieri inquiry is a formal inquisition or proceeding, historically used in English law, to determine whether an executor had committed a devastavit — that is, whether the executor had wasted or misapplied the assets of the testator's estate. The inquiry served as a prerequisite step before a court would issue a fieri facias de bonis propriis, a writ directing execution against the executor's own personal property rather than the estate's assets.

The procedural sequence worked as follows: a creditor obtained a judgment against an estate and then sought to collect by issuing a writ of execution de bonis testatoris (against the goods of the testator). If the sheriff returned nulla bona — meaning no goods of the testator could be found — and also certified a devastavit, the question arose whether the executor had wrongfully dissipated estate assets. The scire fieri inquiry was the mechanism for formally resolving that question. Only after the inquisition found a devastavit could the court proceed to hold the executor personally liable and issue execution against the executor's own property.

The term itself is a compound drawn from two distinct writs: scire facias (a writ commanding a party to show cause) and fieri facias (a writ of execution commanding a sheriff to levy on goods). The scire fieri inquiry occupied the intersection of these two processes — it was neither a pure show-cause proceeding nor a pure writ of execution, but an investigative inquest that unlocked the transition from one to the other.

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Common Confusion

SCIRE FIERI INQUIRY vs. SCIRE FACIAS and FIERI FACIAS: The name of this proceeding invites confusion with each of the writs from which it derives. A scire facias is a writ requiring a party to appear and show cause why a judgment should not be executed or revived; it is a proceeding against the judgment debtor or a third party regarding the validity or continuation of a judgment. A fieri facias is the standard writ of execution directing the sheriff to levy on the defendant's goods to satisfy a judgment. The scire fieri inquiry is neither of these. It is a subsidiary inquisition — an evidentiary proceeding to establish the predicate fact of a devastavit — that preceded the issuance of a fieri facias de bonis propriis against the executor personally. Researchers who encounter any of these three terms in historical records should not treat them as interchangeable. They are sequential steps in a now-abolished enforcement chain, and conflating them will produce a misreading of the procedural posture of the underlying dispute.

SCIRE FIERI INQUIRY vs. DEVASTAVIT: A devastavit is the underlying wrong — the executor's misapplication of estate assets. The scire fieri inquiry is the procedural mechanism for finding that a devastavit occurred. The inquiry produces the finding; the devastavit is the substance of that finding.

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Why It Matters in Research

This term appears almost exclusively in pre-twentieth-century English sources and in American decisions and treatises from the colonial period through the mid-nineteenth century, when English common law writ practice was still operative in many American jurisdictions. Researchers will encounter it primarily in:

(1) English Chancery and common law reporters from the seventeenth through nineteenth centuries, particularly in probate and creditors' rights contexts;
(2) American equity and probate decisions from the early republic, especially in states that retained English writ practice before the adoption of code pleading;
(3) Treatises on executors and administrators, where the devastavit doctrine and its enforcement machinery are discussed systematically.

The critical research trap is treating the scire fieri inquiry as a live procedural tool. It is entirely defunct. The writ system of which it formed a part was abolished in England by the Common Law Procedure Acts of the mid-nineteenth century and supplanted in American practice by code pleading regimes beginning with New York's Field Code of 1848 and spreading through subsequent state and eventually federal procedural reform. Modern creditors seeking to hold an executor personally liable for devastavit proceed by motion or independent action under applicable probate and civil procedure rules — not by inquisition.

A second research consideration: the scire fieri inquiry is substantively connected to the broader executor liability framework. Understanding it requires familiarity with de bonis testatoris writs, the nulla bona return, the fieri facias de bonis propriis, and the devastavit doctrine as a whole. A researcher who encounters the term in an isolated case report without that surrounding context will misunderstand what was at stake procedurally.

Finally, Bouvier's entry is the most useful of the three historical sources for this term because it provides the sequential procedural narrative. Black's entries are brief and offer only the bottom-line description. Neither Black's edition supplies the procedural predicate that makes the inquiry intelligible.

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Historical Dictionary Support

All three source dictionaries identify the scire fieri inquiry consistently as an English law writ used to recover a judgment amount from an executor. On that basic description, the sources agree without meaningful variation between the first and second editions of Black's.

Bouvier's is the outlier — in the most useful sense. Its entry extends into the procedural history: it explains the chain from the initial execution de bonis testatoris, through the nulla bona and devastavit returns, to the historical availability (Bouvier notes this was a former practice even at the time of writing) of issuing a fieri facias de bonis propriis without a prior inquisition, and implicitly, the scire fieri inquiry's role as the formal mechanism for establishing the devastavit finding when such prior inquisition was required. The entry is fragmentary as reproduced here, but even in truncated form it reveals more procedural architecture than either Black's edition.

What all three sources miss, and what modern researchers need to supply from external materials, is the chronological framing. None flags clearly that this writ was already obsolete in English practice during the period Black's and Bouvier's were compiled, nor do they situate the American reception and abandonment of the practice. Treatises on executors' liability — including later editions of Williams on Executors and the American works of Woerner on Administration — provide that context and are the appropriate secondary authorities for understanding the scire fieri inquiry in depth.

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Jurisdictional Note

The scire fieri inquiry was an English common law institution. American reception of the writ was uneven: jurisdictions that retained English common law practice recognized it; those that moved early to statutory probate systems modified or abandoned the machinery entirely. By the time code pleading had spread across most American states in the latter half of the nineteenth century, the inquiry had no surviving procedural home. It has no modern application in any U.S. jurisdiction.

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Encyclopedia Cross-Reference

Law Mind Encyclopedia — Writs (for the writ system within which this proceeding operated)
Law Mind Encyclopedia — Executors and Administration (for the devastavit doctrine and executor personal liability)
Law Mind Encyclopedia — Judgment Enforcement (for the fieri facias and successor modern enforcement mechanisms)

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SCIRE FIERI INQUIRYmain

Black's Law Dictionary • 1891

In English law. The name of a writ formerly used to recover the amount of a judgment from an executor. Scire leges non hoc est verba earum tenere, sed vim ac potestatem. To know the laws is not to observe their mere words, but their force and power; [that is, the es- sential meaning in which their efficacy re- sides.] Dig. 1, 3, 17; 1 Kent, Comm. 462. Scire proprie est rem ratione et per causam cognoscere. To know properly is to know a thing in its reason, and by its cause. We are truly said to know anything, where we know the true cause thereof. Co. Litt. 1836.

SCIRE FIERI INQUIRYmain

Black's Law Dictionary (2nd Ed.) • 1910

In English law. The name of a writ formerly used to recover the amount of a judgment from an executor. Scire leges non hoc est verba earum tenere, sed vim ac potestatem. To know the laws is not to observe their mere words, but their force and power; [that is, the essential meaning in which their efficacy resides.} Dig. 1, 3, 17; 1 Kent, Comm. 462. Scire proprie est rem ratione et per causam cognoscere. To know properly is to know a thing jn its reason, and by its cause. We are truly said to know anything, Where we know the true cause thereof. Co. Litt. 183b.

SCIRE FIERI INQUIRYmain

Bouvier's Law Dictionary • 1928

In Eng- lish Law. The name of a writ formerly used to recover the amount of a judgment from an executor. The history of the origin of the writ is as follows: When on an execution de bonis testatoris against an executor the sheriff returned nulla bona and also a devastarit, 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 to a fieri facias de bonis testatoris was to sue out a special writ of fleri facias de bonis testatoris, with a clause in it. "et si tibi constare poterit," that the ex- ecutor had wasted the goods, then to levy de bonis propriis. Tais was the practice in the king's bench till the time of Charles 1. In the common pleas a practice had prevailed in early times upon a suggestion in the special writ of fleri 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. The practice of the two courts being different, several cases were brought into the he 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 naine compounded of the first words of the two writs ol scire facias and fieri facias, and that of inquiry, of which it consists. This writ recites the fieri facias de bonis testa- toris sued out on the judgment against the ex- ecutor, the return of nulla bona by the sheriff, and then, suggesting that the executor had sold and convertel 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 levied thereof, 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, etc. 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, etc. Clift, Entr. 650; Lilly, Entr. 664. Although this practice is sometimes adopted, yet the most usual proceeding is by action of debt, on the judgment, sug- gesting a devastavit because in the pro- ceeding 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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