#### 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 *29two 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.

(1)

When the statute has provided remedies by writ of scire facias, or 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. McCourtie 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.