John McLean

“ From lapse of time and favourable circumstances, the existence of a deed may be presumed, or that an obligation has been discharged; but this presumption always arises under pleadings which would render the facts presumed proper evidence. A demurrer raises only questions of law, on the facts stated in the writs of scire facias themselves. No evidence is heard; and, consequently, there is no ground for presumption from lapse of time.
Can the demurrer be sustained on the ground of the marshal's return that Shockey and Rose, defendants in the judgments, are dead? ”

“ But demurrers cannot be interposed which shall treat the fact of their decease as matter of record; and which may prevent the plaintiff from issuing other writs in the cases.
In every view which we can take of the questions properly arising on the demurrers, we think the Circuit Court erred in sustaining them.
As the subject matter of dispute is land over which the administrators or executors of the deceased defendants have no control, we do not perceive the necessity or propriety of making them parties in the writs. ”

“ They were judgments on which executions might issue for the damages and costs. And the amendments having relation back to the expiration of the demises, gave vitality to both the judgments, the same as if the terms had originally been stated at fifty years.
It is admitted that the service of process, or notice, is necessary to enable a Court to exercise jurisdiction in a case; and if jurisdiction be taken where there has been no service of process, or notice, the proceeding is a nullity. It is not only voidable but it is absolutely void. ”