Cumming v. Devisees — 1 Cow. 70

Majority

p. 70

Cumming against The Devisees and Tertenants of Eden.

Headnote

Devisees, &c. by motion, are'’noT war-nod on a sci. a° pUa° in7 a.y batement. ^ are equal to a scire fed, vvhere the tertenants, &c. tiie wdv'otl™ erwise, where How^the return should be in the last ease. In proceeding by two nihils, the al. sci.fa. the sheriffs fice four days,

exclusive both of the day of its being lodged there, and of the return day.

Burr, for the defendants, moved to set aside the writs of scire facias and alias scire facias, issued in this cause, with a^ subsequent proceedings, for irregularity, The sci. fa. recited a judgment against Eden ¿y Pelatreau i that Eden is since dead ; and directed the Sheriff to make known to Rachel, the widow of Eden ; Sally Ann, Elizabeth and Rebecca, daughters of the said Rachel, and J0JM Pelatreau, devisees of Eden ; and also to the tertenants of all the lands, &c. in his bailiwick, of which Eden, &c- was seized, &c. This writ was tested May 18th, 1822, returnable the 1st Monday oí August thereafter, and returned thus : “ The within named defendants have nothing in my bailiwick, whereby I can cause them to know, as within I ’ J ’ am commanded, nor are they or either of them found in the game M. M. Noah, Sh’ff.” The writ was filed 5th Au-y gust, 1822. An alias sci. fa. then issued, in the same form, tested August 5th, 1822, returnable the 9 th of the same

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month, on which the same return was indorsed. The same day a rule to appear and plead was entered, and a default for not appearing taken oh the 14th, upon which a judgment was afterwards perfectéd, in January last, and execution issued, &c. The Under Sheriff swore that he returned the writs nihil, by direction of the plaintiff’s attorney.

Burr, objected, 1. That the alias sci.fa. had not lain four clear days in the Sheriff’s office. That this is necessary, he referred to Tidd, 1040, and Forty v. Hermer, (4 T. R. 583.)

2. The writ does not command the Sheriff to warn the heirs, but only the devisees and tertenants. In support of this objection, he referred to Bac. Mr. scire facias, C. 5 ; Tidd, 1033 ; 2 Wms. Saund. 8 n. and id. p. 72.^[1]

3. A return of nihil is not good against tertenants or devisees, but the Sheriff ought to return, either that there are none, or that they have been personally summoned. {Tidd, 1038. 2 Wms. Saund. 72 r.)

I. Smith, contra,

said, that in this proceeding, the practice as laid down in 2 Sell. Prac. 197, had been consulted and pursued. The writ had lain four days in the Sheriff’s office, as there directed. As to the objection that the heir was not summoned, he read an affidavit, shewing that Eden’s whole estate had been devised. He insisted, in answer to the 3d objection, that tertenants and devisees are not an exception to the general rule, which prevails in the proceeding by sci. fa. that two nihil s are equivalent to a scire feci.

Burr, said there was always an heir at law, for the purposes of a sci. fa. The will may be void ; and the heir should always be brought in. When here, he may either plead riens per descent, if the will be good, or, if void, he should be warned, in order to subject the land to an execution.

It is objected that the sci.fa. should have been against the heirs as well as tertenants, &c. the former being

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liable to contribution. But such an objection cannot bé' . • J urged in this form. It should have been pleaded in abate- merit. The case of Whitney v. Camp et al. ( 3 John. Rep, 88 ,) *s a decisive answer to this ground. It is equally well settled that two nihils are equal to a return of scire feci ; and the rule applies to a proceeding against heirs, devisees and tertenants, provided they are named in the writ. But where it is against the heirs, devisees and tertenants, generally, without naming them, it is not sufficient to return nihil, but the Sheriff must return, whether there are any such persons in his bailiwick. He must say either that there arc, none, or that he has warned thejln to appear, naming and describing them, as tenants of all the lands in his bailiwick, &c. or certain lands in his bailiwick, &c. and that there are no others. (Tidd's Prac. 1038. 2 Wins. Saund. 72, r. Panton v. Hall, Carth. 105. S. C. 2 Salk. 598.)^[1] The writ, in this case, being general against the tertenants, the return of nihil simply, was, therefore, not sufficient to warrant the

(b) (b) The exception made in Tidd's Pract. and Saund. Rep. cited in this case, that where the writ is general, nihil will not do, is grounded on books of entries there referred to, which contain, simply, the form of the return in such case, viz. Co. Ent. 622, a. Herne, 327; Dalt. Sher. 559; Thes. Brev. 269,96, 279,288; Lill. Ent. 385, 386; with Carth. 105, and 2 Salk. 598 ; sanctioning these forms. They also refer to the form of nihil against an heir and terretenants, or against them severally, in Thes. Brev. 253, 271, 283. Lill. Ent. 385; Tidd’s Pract. Forms, 457; Off. Brev. 278,282, 286 ; and of nihil as to the heir, and scire feci to the terre-ienants of one defendant, and nihil as to the heir and terre-ienants of another, Tidd's Pract. Forms, 457. There seems to be no adjudged case, until the present, which, in terms, either sanctions or denies two nihils, in a proceeding against terre-ienants, &c. This question was discussed by Mr. Campbell and Mr. Henry, in Morton v. Croghan, 20 John. 111 , 117, and the absurdity of allowing two nihils, in such a case, much insisted upon; and Mr. Butler and Mr. Talcott, (A. G.)p. 114, on the other side, admit, that in such a ease, the terre-ienants may be let in to defend, on disclosing a good defence. But the cause turning on another point, this question was not decided. The form of the nihil, on the general writ, is thus : “ There are not any heirs, or tenants of the lands or tenements, whereof the within named C. D. was seized, at the time of the rendition of the judgment within mentioned, or ever after, in my bailiwick, whereby 1 can give notice to them, or either of them, as within I am commanded.’? Imp. Sh. 486, and vid. Tidd's Pract. Forms, 287, Alb. ed. Now it is clear, that the sheriff could make no other return than this, except scire feci; for *73 •if there be heirs, or lertenanls, in his county, or, if they reside elsewhere, and have lands in his county, it would be false, on its face, to make the common return of nihil, viz. “ They have nothing in my bailiwick, where, or by which, I can give them notice, as within I am commanded, nor are they found within the same.” (Imp. Sh. 485, and vid. Tidd’s Pract. Forms, Alb. ed.286.) Whereas, if the heirs and tertenants be named in the writ, the proceedings seem to stand on the same footing, in this particular, as those on any other sci". fa. where the defendants are designated. They may well be heirs, or ierre-tenants, as to lands in other counties, and reside there; and the-Sheriff may say, that they are not Sound, and have nothing in his bailiwick, &c. This distinction, therefore, mentioned by the Court, seems to arise from the nature of doing business. Two nihih may, in the latter case," amount to a scirefeci, with the same propriety as in other cases, where, if the party have a good defence, relief, by audita querela, is matter of right, against the judgment and proceedings consequent upon not appearing. (Barcock v. Thompson, Styles, 281,288, 323.) Or, where the fact is clear and the application recent, the defendants may be relieved on motion; though otherwise, where the fact is disputed, or there has been along acquiescence, or the ground of relief be proper for trial. (Vid. 2 Wms. Saunders, 72 u,. and the cases there cited.)

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|>iamtiff’s second writ, and subsequent proceedings. But, if tlie return were good, the 2d writ did nót lie a sufficeint time in the Sheriff’s office. The rules and practice of the Court of King’s Bench, are ours, in those cases not provided for by the rules of this Court. The length of time during which a sci. fa. shall be left in the office of the Sheriff, depends upon the general rule in that Court. (5 Geo. 2.) That rule declares, that every writ of scire facias, of which notice shall" be given to the defendant, shall be left in the office four days before the return, exclusive of the day of the return; and that every writ of alias scire facias shall be left in the office four days, exclusive, before the return. In Wilson v. Farr, (4 Barnw. & Alders. 357,) that Court decided, that, under this rule, the latter four days must be exclusive of the day on which the writ is lodged with the Sheriff, and of the return day also. Testing this case by that decision, to which we assent, the plaintiff has, clearly, been irregular. Here were but four days, including the return day of the alias scire facias.

Motion granted.