Opinion of the Court.

Mr. William B. Childers for plaintiff in error and appellant.

Mr. Bernard S. Rodey for defendant in error and appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

The writ of scire facias has been, among other things, customarily used to obtain execution on a judgment which has become dormant. At common law it lay in real actions and on a writ of annuity, if the plaintiff did not take out execution within a year and a day, and it was given, under the same circumstances, in personal actions, by the statute of Second Westminster, 13 Edw. I, St. 1, c. 45, before which act, the plaintiff was put to a new action on his judgment. Foster on Scire Facias, 2, and cases cited.

The writ in this case was taken out to obtain execution of the judgment in question. That judgment was recovered October 7, 1885, and no execution had been issued thereon. The writ was dated September 30, 1895. The statute provided that "actions founded upon any judgment of any court of the Territory of New Mexico," and "upon any judgment of any court of record of any other Territory or State of the United States, or of the Federal courts, may be brought within seven years from and after the rendition of such judgment and not afterward: Provided, That actions may be brought upon any existing judgment, which, but for this proviso, would be barred within one year from and after the passage of this act and not afterward; and all actions upon such judgments not commenced within the time limited by this act shall be forever barred." It thus appears that this judgment was barred according to the terms of the act some years before the writ was issued, but it is contended that although that was so, the bar did not apply to the writ of scire facias, by the use of which the judgment could be revived and an execution issued upon it notwithstanding the lapse of time.

It is argued that scire facias is not included in the words "all actions," barred by the statute, because a proceeding by scire facias is not an action, and because to hold it to be would

Opinion of the Court.

be inconsistent with another statutory provision that actions should be commenced by "the filing in the proper clerk's office of the petition, declaration, bill or affidavit." Compiled Laws, 1884, § 1867. But we think that the averments in the writ are equivalent to a petition or declaration; and while it is true that a scire facias for the purpose of obtaining execution is ordinarily a judicial writ to continue the effect of the former judgment, yet it is in the nature of an action because the defendant may plead to it; and in many cases it has been classified as in substance a new action. Foster, 13; Coke Litt. 291a; Fenner v. Evans, 1 T. R. 267; Winter v. Kretchman, 2 T. R. 45; Holmes v. Newlands, 5 Q. B. 367; Owens v. Henry, 161 U. S. 642; Kirkland v. Krebs, 34 Md. 93; Potter v. Titcomb, 13 Maine, 36; Gonnigal v. Smith, 6 Johns. 106; Cameron v. Young, 6 How. Pr. 372; Murphy v. Cochran, 1 Hill, 339.

In Fenner v. Evans a scire facias had been issued to revive a judgment entered prior to the act of 17 Geo. III, c. 26, and execution had been taken out upon it. The scire facias and the execution were both set aside, the court holding that scire facias was an action within the second section of that act providing "that no action shall be brought on any such judgment already entered," etc.

By section forty of chapter twenty-seven, 3 & 4 Will. IV, it was provided that "no action, or suit, or other proceeding, shall be brought, to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same. And it was

held that no scire facias could be sued out to revive such a judgment after the lapse of twenty years. Foster, 14, 29; Farran v. Beresford, 10 Cl. & F. 319; Farrell v. Gleeson, 11 Cl. & F. 702. In these cases it was ruled that scire facias on a judgment was not a mere continuation of a former suit but created a new right.

In many jurisdictions provision is made for the revival of judgments by scire facias within a specified time, but our at

Opinion of the Court.

tention is called to no such provision in these statutes. The reference to revivor in such cases treats scire facias, if used as an action. It was enacted by the act of 1887, now §§ 3085 and 3086 of the Compiled Laws of 1897, that it should not be necessary "to bring proceedings in any court to revive a judgment having been already obtained before a court of competent jurisdiction in this Territory, except in cases where such judgment had been rendered for a period of five years or more, " and that

an execution might issue at any time, "on behalf of any one interested in such judgment referred to in the above section, within five years after the rendition thereof, and without the necessity of bringing an action to revive the same." Assuming that scire facias lies under the code of New Mexico to revive a judgment, it is included in the word "action" in this section, and we think it may properly be assumed to have been used in the same comprehensive sense in the act of 1891, prescribing the limitation on "all actions founded upon any judgment."

We agree with the Supreme Court of New Mexico that the construction contended for is unreasonable and would defeat the manifest object of the legislature, and that, after a judgment is barred under the statutes of New Mexico, a scire facias giving a new right and avoiding the statute cannot be maintained.

Writ of error in No. 165 dismissed; judgment in No. 247 affirmed.

Statement of the Case.

HANCOCK MUTUAL LIFE INSURANCE COMPANY v. WARREN.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 196. Argued and submitted March 19, 1901.-Decided April 8, 1901.

Orient Insurance Company v. Daggs, 172 U. S. 557; Waters-Pierce Company v. Texas, 177 U. S. 28; New York Life Insurance Company v. Cravens, 178 U. S. 389, approved and affirmed. Section 3625 of the Revised Statutes of Ohio dealing with the subject of answers to interrogatories in applications for policies of life insurance, applicable to all life insurance companies doing business in the State of Ohio, and in force at the time the policy of insurance sued on in this case was issued, was within the power of the State over corporations, and not in violation of the Constitution of the United States.

THIS action was brought in the Common Pleas Court of Delaware County, Ohio, on a policy of insurance issued September 27, 1895, by the John Hancock Mutual Life Insurance Company on the life of George E. Warren and for the benefit of William M. Warren. The insurance company resisted payment on the ground that the policy had been fraudulently obtained by the decedent, in that the answers made by him in his application made a part of the policy, and which were expressly warranted to be complete and true, the policy providing that if any of the statements were untrue it should be void, were false, and that he made them for the purpose of defrauding the insurance company, which would not have issued the policy had it known of the falsity of the answers.

Section 3625 of the Revised Statutes of Ohio provided that: "No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is wilfully false and was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer the policy would

Opinion of the Court.

not have been issued; and, moreover, that the agent of the company had no knowledge of the falsity or fraud of such answer." Rev. Stat. Ohio, 1898, p. 1900.

The trial judge charged the jury as follows: "This law being in force at the time this policy of insurance was taken out, is applicable to the policy of insurance involved in this case. And is applicable to the questions and answers in the application that by the terms of the policy are made express warranties as well as those that are not." The defendant duly excepted to that portion of the charge, and to other portions of the same purport. The defendant also requested the court to give the jury the following instruction: "The policy or contract upon which this action is based and the application made by George E. Warren for the same, constitute a warranty that all answers by said Warren contained therein are true, and if any one or more of said answers is untrue, though made without actual fraud, and under an innocent misapprehension of the purport of the questions and answers, no contract of insurance is thereby made, and the contract is void ab initio, and your verdict will be for the defendant." The court declined to give this instruction, and defendant duly excepted.

The jury returned a verdict for the plaintiff, and judgment was entered thereon, which was affirmed by the Circuit Court, and finally by the Supreme Court of Ohio. The John Hancock Mutual Life Insurance Company v. Warren, 59 Ohio St. 45.

Mr. George K. Nash, Mr. W. Z. Davis and Mr. Louis G. Addison for plaintiffs in error submitted on their brief.

Mr. John S. Jones for defendant in error. and Mr. F. M. Marriott were on his brief.

Mr. W. B. Jones,

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

In State v. Ackerman, 51 Ohio St. 163, it was ruled that as foreign insurance companies and associations, whether incorporated or not, before commencing business in the State, were