Majority
p. 106The Executors of Morton against The Terre-tenants of Croghan.
Headnote
Where a ^torproceeds to enforce his lien on real estate, and it becomes necessary, for that purpose, to revive the judgment, he must make all the terre-tenants, or persons having a fee in the land., parties to the scire facias, in order that they may be compelled to contribute jointly to the payment and satisfaction of the judgment.If, in such case, some of the terre-tenants appear and plead, and others make default, and the plaintiff enters a nolle prosequi, as to those who appeared and pleaded, and takesjudgmeni by default against the others, it is a discontinuance as to all the defendants; and he must pay costs, as in a case of discontinuance. But it is otherwise, in actions of tort, where the plaintiff has his election, to sue jointly, or severally ; or in assumpsit, or debt, where one of the defendants pleads matter of personal discharge, which does not go to the action of the writ, as bankruptcy or infancy*
SCIRE FACIAS to revive a judgment recovered in October, 1770, in the Supreme Court of the then province of New-York, in favour of John Morton against George Crogh an, for 10,500 pounds of debt, and 81. 4s. 3d. damages and
p. 107
costs. In the year 1804, and after the death of both the parties, the plaintiffs, as execfitors of Morton, revived the judgment against the heirs of Croghan ; and one thousand dollars were made on an execution issued after such revival, which execution, as to the residue, was returned nulla bona. The judgment was, also, revived for the residue, by the plaintiffs against the heirs, in 1809 | and again, in 1818. The'present action was commenced in December, 1817, by scire facias, to the sheriff of JYew-York, against the heirs and terre-tenants of Croghan, which writ was returned nihil. A testatum scire facias was then issued to Otsego county, to which the sheriff returned, that he had summoned G. W. JPrevost, and three others, the heirs, and Samuel Cooper, and fourteen others, (of whom Abraham Hartwell was one,) the uerre-tenants of said George Croghan, to be, fee. which were all the heirs and tenants of said George Croghan in Ms bailiwick. The heirs and terre-tenants-appeared by their respective attorneys. Upon the application of the terre-teaants, the plaintiffs were required, by rule of Court, to file security for costs. To the declaration, which was in the usual form, the heirs pleaded riens per descent, and the terretenants, (except Hartwell, who, in the mean time, had died,) pleaded that Seth Cools, and others, (five hundred and forty-five in number,) whose names, placesmf residence, and lands, were specified at length in the plea, were tenants of certain lands in the county of Otsego, whereof George Croghan was Seised, at the rendition of the judgment, and were not named in the writ of testatum scire facias, nor returned as tenants, wherefore they prayed judgment, if they should answer the said writ, &c. This plea was verified by affidavit. In consequence of this plea, the plaintiffs issued a writ of scire facias to the sheriff of the county of Otsego, reciting •¿he former writs, and setting forth the sheriff’s return; the appearance of the heirs and terre-tenants; the declaration; the death of Hartwell; and that the tenants had pleaded that three hundred and thirty-three persons, (naming them,) and also divers others, by them specified, were tenants, &c. and were not named, nor returned, and commanding the sheriff to summon those three hundred .and thirty-three persons, (and of whom Seth Cools was one,) to be, fee, and to
p. 108
show why execution should not be made of the lands, where-0f t]iey were tenants.
The sheriff of Otsego, returned to the "last writ, that he had summoned three hundred and eleven of those named, and as to the remaining twenty, nihil. Of those summoned, two hundred and seventy-six appeared; the others, thirty-five in number, (of whom William James was one,) not appearing, their defaults were entered. Against the twenty returned nihil in the last writ, an alias scire facias, reciting the last writ, and the sheriff’s return, was issued, to, Otsego county, which was also returned nihil; this being deemed equivalent to a scire feci, defaults were regularly entered against them, for not appearing.
The terre-tenants last summoned being served with a declaration, two hundred and thirty-five pleaded, that there were thirty-six other persons of the county of Otsego, naming them, who were terre-tenants of lands held by George Croghan, at the rendition of the judgment, and who were not named, &c., and praying judgment, &c., (as in the former plea.) Rufus Hawkins pleaded in abatement, that Seth Cook, one of the tenants impleaded in the first dilatory plea, and named in the second writ of scire facias, issued to the county of Otsego, was dead, and that he died before the issuing of that writ, viz. in March, 1819.
Robert Carr pleaded, that Abraham Hartwell, one of the terre-tenants first summoned, was dead; that he died after the issuing and return of that writ, viz. on the 10th February, 1818, leming Luther Hartwell, his son, and heir at law-, to whom the houses and lands, whereof Hartwell was tenant, descended ; that the said Luther Hartwell was not named in the proceedings, and praying judgment, and that the writ may be quashed.
Ephraim Carr pleaded, that Samuel Cooper, one of the terre-tenants first summoned, was dead; that he died after the pleading of the plea, by the said Samuel Cooper and others, (first dilatory plea,) to wit, of the 15th February, 1819, and praying judgment, and that the writ may be quashed.
To the three last mentioned pleas in abatement, the plaintiffs demurred, and the defendants joined in demurrers. Thirty-seven others pleaded non-tenure, which plea was re-
p. 109
piled to by the plaintiffs, and issue joined. In the mean time, one hundred and sixty-nine persons of those impleaded in the first dilatory plea, appeared voluntarily by their attorney. and pleaded non-tenure, to which the plaintiffs replied, and issue was joined.
Against the remaining forty-five, impleaded by the first dilatory plea, another writ of scire facias was issued to Otsego county, which was returned nihil, and an alias scire facias being returned against them, in like manner, their defaults, for not appearing, were entered. The five hundred and forty-five, first impleaded, being thus disposed of, the plaintiffs filed an affidavit of that fact, and entered, in October, 1820, a rule, requiring the surviving tenants, first summoned, to answer further in twenty days; a notice of which rule was served on their attorney, on the 12th October, 1820. The tenants, first summoned, then applied to the Court for an order, that the rule to answer further be set aside, and that the several writs of scire facias, and all proceedings thereon, be set aside, with costs; which motion was founded upon an affidavit, stating, that Abraham Hart-well and Samuel Cooper, returned as tenants, were dead. That Seth Cook, one of the terre-tenants, named in the second scire facias, issued to the county of Otsego, was dead, and that he died before the issuing of that writ. That Abraham Marvin and Gaius Smith, two other of the terretenants, named in the last mentioned writ of scire facias, had died since the return thereof, and that pleas in abatement, grounded on the deaths of those persons, were pending.
This motion was argued in January term, 1821, by R. Campbell and J. W. Henry, for the terre-tenants, and J?, IT. Butler, {Burr, E. Williams, and Wan Burén, same side,) for the plaintiffs. The Court held the matter under advisement until the next May term, but, in the mean time, the plaintiffs, on the 9th day of April, 1821, and before the expiration of the limitation in the act, entitled “ An act concerning judgments and executions,” docketted a judgment against 109 persons, whose defaults for not appearing had been previously entered, viz. 36 upon a return of scire fid, and 73 upon two returns of nihil, entering upon the record a nolle prosequi, as to the heirs, and all the terre-te*
p. 1101. The writs of scire facias have all been issued without first obtaining the leave of the Court for that purpose, though the judgment was of more than twenty years standing. (Lansing v. Lyons, 9 Johns. Rep. 84 . Bank of New-York v. Eden, 17 Johns. Rep. 105 .) These defendants being now before the Court, for the first time, are entitled to make this objection, and to move to have the writs quashed. 2. No proceedings have been had against the personal representatives of Croghan, previous to issuing the scire facias against the heirs and terre-tenants. The judgment, therefore, against the terre-tenants, is irregular. (Tidd’s Pr. 1032. Fitz. N. B. 595. Bac. Ab. tit. Scire Facias, C. 5. Carth. 107. 2 Saund. 72 o. 72 p. notes. Whitney v. Terre-tenants of Crosby, 3 Johns. Rep. 86 .) It may, perhaps, be objected, that this should be taken advantage of by plea, and not by motion ; but we have found no precedent for such a plea. The statute relative to judgments and executions, directs the execution to be first issued against the goods and chattels of the debtor. (1 N. R. L. 502, 503. sess. 36. ch. 5. s. 9.) 3. But admitting that the proceedings were regularly commenced, the writs have abated by the deaths of various terre-tenants. The statute (1 N. R. L. 519. sess. 36. ch. 56. s. 9.) does not apply to such a case, and the plaintiffs have no right to suggest these deaths on the roll. Where all proper parties are before the Court, and one dies, there is no good reason why the suit should abate, when the cause of action survives ; but where the heirs of the deceased must
nants who had appeared. In consequence of this proceedjng) the motion argued at January term, 1821, was not deter mined by the Court. The, defendants, against whom judgment had been entered, now moved, upon the grounds stated in the argument, that the judgment be set aside$ the surviving terre-tenants, first summoned, also moved that the bond filed as security for costs, should be delivered up, to be prosecuted by them; and the terre-tenants, who had appeared and pleaded the second dilatory plea, also moved for costs against the plaintiffs.
It. Campbell, for the defendants.
p. 111fee made parties, there a new suit is necessary. The rale of the common law is, that the death of one terre-tenant abates the whole proceedings, unless where the survivors have the whole interest, by survivorship; for every tenant to the land is entitled to have contribution from the other tenants of the land; and, therefore, unless all the tenants are warned, the others are not obliged to answer: and if the defendant does not take advantage of the omission by a plea, he will be concluded, and cannot call on the others for contribution, and execution will go against his land alone. (2 Saund. 9. note 10.) The second scire facias names parties who are liable to contribute, and have not been brought before the Court. It recites the death of Abraham Hartwell, one of the tenants. If the plaintiff names the terre-tenants, and omits one, the suit is abated; for he can have a better writ. (6 Bac. Ab. tit. Scire Facias, C. 5.) Again; if the writ is general, and the sheriff returns that he has summoned A. B. and C.s it is bad, for he ought to return all the tenants. Again; Seth Cook, named in the writ as one of the tenants, was dead when the writ issued. His death must abate the writ in toto j for it is false on the face of it. (Com. Dig. tit. Abatement, E. 17. Vin. Ab. tit. Abatement. A. pl. 22. 2 Saund. 72 i. Bac. Ab. tit. Abatement, L.) 4. As to those tenants against whom judgment has been entered upon the return of two nihils, the judgment is wholly irregular. The return of a nihil to a scire facias against terre-tenants, is a perfect nullity, and will not authorize any proceedings against them. It is absurd to charge a person as a terre-tenant, when the sheriff returns that he has no land, nor any thing by which he can be warned, (Vin. Ab. tit. Scire Facias, (I.) 1 Brod. & Bingham’s Rep. 381. 2 Wm.Bl. 995. 1141.) Again; a year elapsed after the plea, and before a second writ issued; and between the time of the plea and the issuing of the writ, B. P., one of the tenants, aliened his land, and removed, Now, can a nihil retened by the sheriff to this writ, bind the purchaser from B. P., or the new tenant ? 5, The plaintiffs have entered a nolle prosequi as against above four hundred of the tenants, who had been brought
p. 112before the Court, and have entered a judgment against the others) thus throwing the burden of the whole debt upon them. This nolle prosequi, we contend, operated in the nature of a and discharged all the defendants, so that no judgment could be entered against any of them. The exceptions to the general rule are, when the discharge is merely personal, as in the case of bankrupts, infants, or executors. There would be manifest injustice and hardship in making these few tenants pay the whole debt, without having any right to call on the heirs, or other tenants, for contribution. Serjeant Williams, in his note to Salmon v. Smith, (2 Saund. 207 a. n. 2.) has collected all the cases on this subject. (1 Wils. 89. Cro. Eliz. 762. Tidd’s Pr. 632. Robertson v. Smith, 18 Johns. Rep. 459 .) There is, too, a nolle prosequi as to the heirs of some who were liable in the first instance. 6. At all events, the defaults ought to be set aside, as the defendants have sworn to merits; and most of those who were summoned give sufficient excuses for not appearing ;■ and two of the defendants, William James and Isaac Lewis, deny all notice. As to those against whom nihils have been returned, and who were not summoned, they are entitled to be let in to defend, as a matter of course. As to the question of costs, he contended, that the plaintiffs had subjected themselves to pay costs to all the defendants discharged by the entry of the nolle prosequi. The nolle prosequi was the same as a discontinuance; and se within the statute relative to costs. (3 Term Rep. 511. 17 Johns. Rep. 263 . 3 Bos. & Pull. 115.) 1. As to the first objection; it should have been made by the persons first summoned, in January, 1818; persons brought in subsequently cannot make it. Where a judgment has been once revived, within ten years, though obtained long before, the plaintiff may have a second scire facias, without motion, osleave of the Court; and that, too, against different persons. (Hardisty v. Barney, 2 Salk. 598. 2 Sellon’s Pr. 116. 2 Saund. 12 g. note 7.) There have been revivals of this judgment against the heirs, in 1806, 1807, and 1809. This
Butler, and Talcot, (A. G.) contra.
p. 113is evidence, prima facie, that the debt remains unpaid; and affidavits of the fact were filed soon after the commencement of the suit, in reference to the application for security for costs. The writs against the present defendants were issued in consequence of the plea put in by the sixteen tenants first summoned, that there were other tenants who ought to be summoned, so that the plaintiffs were compelled to proceed, by the express award of the Court, or be non-prossed. 2. It no where appears that C. had any personal representatives. And if it did, the objection cannot be made, at this time, and by these defendants. The judgment has been several times revived against his heirs, and part of the debt has been made of the lands in their hands; yet no such objection was raised. It must be presumed that there were no personal representatives, or that they had no assets. At any rate, the defendants are in default, which precludes them from making the objection. (Whitney v. Camp, 3 Johns. Rep. 86 .) 3. That the proceedings have abated by the death of any of the tenants, is a matter which cannot be determined on motion. The law has prescribed an appropriate plea for such a case; and what a party can plead, he cannot bring up on motion. (James v. Penrise, Loft’s Rep. 65.) Hartwell, and the other two tenants whose deaths are relied on, (except Co ok,) died after appearance, and their deaths abated the proceedings as to them only. That was the case on scire facias, even at common law. (Vin. Ab. tit. Abatement, M. a. pl. 16. Com. Dig. tit. Abatement, H. 35. 42 Assiss. 262. case 22. 10 Co. 134. Cro. Car. 518.) Besides, our statute, (1 N. R. L. 519.) in spirit at least, if not in express terms, applies to this case, as well as to any other ; and the deaths have been properly suggested on the roll. If the death of one tenant,' pending the suit, abates it as to all, it will be utterly impossible to revive a judgment against numerous tenants. The deaths of these persons appear on the record, and the defendants may bring their writ of error. As- to Cooh, the sheriff has returned nihil; and the allegation of his death contradicts the return, which is not allowed on a scire facias. But we contend, that his death abated the suit as against himself only. It is true, the rule
p. 114is laid down in some of the Digests, and elementary bookst as stated by the defendant’s counsel; but its accuracy may well be doubted ; and if correct, it does not apply to a scire facias. A misnomer of one defendant renders the writ equally false; yet, in that case, the writ is good against those rightly named. (Blackman’s case, 8 Co. 179 b. 1 Chitty’s Pl. 441.) The cases cited in the Digests and Abridgments, in support of the rule, are very ancient; and such a mistake will hardly be deemed fatal, at the present day. But in many of the old cases, it has been held, that the death of one defendant before writ purchased, abates the writ as to him only. (Pollard v. Jekyll, Plowd. 89. Vin. Ab. tit. Abatement, Q a. S a. T a.) Whatever may have been the practice in other cases, the rule has-not been applied to scire facias, which being a judicial, not an original writ, the rule is not so rigorous as in other cases. (Read and Redman’s case, 10 Co. 134.) The objection has, indeed, been taken, in several instances ; but the writ has been held good as to the tenants surviving. ( Vin. Ab. tit. Abatement, S a. p. 65—68. Bac. Ab. tit. Execution, G. 4 Hen. VI. 3. 19 Hen. VI. 9. 41 Edw. III. 13. 3 Hen. VII. 1. 6. case 2. 38 Edw. III. 20. Cro. Car. 518.) The mode of proceeding, in modern times, by scire facias against terre-tenants, is, not to name them; and the persons returned by the sheriff can plead in abatement, that there are others who ought to be summoned ; but this plea merely suspends the proceedings until the others are brought into Court. (Jefferson v. Morton, 2 Saund. 6. 9. notes.) Again •, a scire facias may be amended, when it is not brought to charge bail. The Court may, then, allow the writ, in this case, to be amended, by striking out the name of Cook. (Underhill v. Devereaux, 2 Saund. 72 r.) 4. We admit, that the defendants against whom judgment has been entered on the return of two nihils, are entitled to be let in to defend, if they disclose a good defence. (2 Saund. 72 u. notes.) Here, the defendants have not set forth their defence. But if the judgment should be set aside as to them, it ought to stand as to the others. Even in assumpsit, a judgment may be set aside in part; ( 2 Caines’ Rep. 254 .) and the proceedings are severable. (Cro. Car. 518.)
p. 1155. The nolle prosequi appears on the record, and if it discharges all the defendants, the judgment is erroneous, and may be reversed by writ of error. But we contend, that it discharges those only against whom it was entered, (Salmon v. Smith, 1 Saund. 207. n. 2.) In England, by the common law, land could not be sold on execution, but was put into the possession of the creditor, until, out of the rents and issues, he had satisfied his debt. Here the statute gives an execution against the lands of the debtor; and the sheriff, in case of terre-tenants, is to levy the debt out of the lands alone. In England, it was necessary to bring in the co-tenants, in order to save to the others their right to a contribution$ but, under our statute, the right of contribution does not exist. Contribution, in England, relates to the rents and issues. (3 Co. 14. Harbert's case.) Why compel all these terre-tenants to be brought in, when, if they were before the Court, all the lands possessed by them could not be sold, but enough only to satisfy the judgment ? And if the land held by the first terre-tenants who were summoned and appeared, was amply sufficient to satisfy the judgment, it would be idle to bring the others into Court. This is not the case of a joint contract, where a nolle prosequi, as to one, discharges all the defendants, unless upon the infancy, &c. of the one. There is no contract whatever between the plaintiffs and the terre-tenants: the lands in their possession are alone liable. It is analogous to an action of ejectment, in which a nolle prosequi as to one, discharges him only. (2 Saund. 207.) Such is the case, also, in real actions. (12 Mod. 654.) The pleas, here, were severable ; and no case can be stated in which the defendants have less privity with each other. ( Cro. Car. 518.) Many of the defendants pleaded non tenure ; none of them pleaded any thing going in discharge of the judgment. As to the right of contribution against the tenants discharged by the nolle prosequi, it does not appear that the lands of those tenants were ever liable to the judgment. They have pot admitted the fact, as the present defendants have done, by suffering a default, But admitting that they are liable to contribute, ought the plaintiff’s execution to fee delayed, until contribution is adjusted and enforced b-‘~
p. 116tween the tenants ? In England, where lands are extended against terre-tenants, contribution may be enforced, pari passu, with the execution of the elegit; and that, whether the tract of land be large or small. Execution is, therefore, delayed, until all are brought in. (3 Co. 14.) But here, where lands in the hands of different tenants, and to any extent, may be sold-on execution, it is impossible to effect an equal contribution at the sale. Here are about 600 tenants, occupying more than 25,000 acres of land. The whole could not be sold; nor more than one lot, if that would produce sufficient to pay the debt. (Wood v. Merrill, 1 Johns. Ch. Rep. 505 . Jackson v. Newton, 18 Johns. Rep. 362 .) It would have been no benefit to the present defendants to have had the execution awarded against all. They would still have been obliged to proceed against the others; and, therefore, no objection exists to discharging a number of them by nolle prosequi. Our statute has pointed out a mode of enforcing contribution, peculiarly applicable to our practice; (1 N. R. L. 503.) and by which these defendants may compel the others to contribute. They have, also, a remedy at common law, by the writ de contributions faciendo ; (5 Vin. Ab. tit. Contribution and Average, p. 561.) or they may file a bill in Chancery. 6. As to the defendants who were returned by the sheriff scire feci, the return cannot be contradicted. (2 Str. 813. 2 Salk. 601. Cro. Eliz. 872. 1 Wm. Bl. 394. 2 Wm. Bl. 873. 3 Vin. Abr. 323.) Neither James nor Lewis reside in Otsego county, and probably service could be, and was, made on their tenants. That the defendants who were summoned have a good defence,- will not authorize the setting aside the judgment, after default. A terre-tenant, who makes default on a return to a scire facias, cannot be let in to make a defence, however meritorious his defence may be. This is the established rule in England, and in this State. (Jackson v. Robbins, 16 Johns. Rep. 579 . in Error, and cases there cited, per Kent, Ch. 3 Vin. Abr. 322. Cooke v. Berry, 1 Wils. 98. Whitney v. Camp, 3 Johns. Rep. 87 . 2 Saund. Rep. 72 u. note.) None of the defendants are entitled to costs. In scire fa-, das, the plaintiff is not liable to costs, on becoming nonsuit,
p. 117or suffering a discontinuance, as to a part of the defendants, if he obtains a judgment against some of them. The statute, (1 N. R. L. 345. s. 10.) applies only where there is a discontinuance as to all the defendants. (Hullock's Law of Costs, 142. 2 Str. 1105. 2 Burr. 1284.) Besides, after a plea in abatement, a plaintiff may discontinue without costs; (Tidd's Pr. 612.) and that, too, in scire facias. (Poole v. Broadfield, Barnes, 431. Hullock, 303. 1 Str. 638. 2 Saund. 72. note.) The judgment is a lien, or it is not - If a lien, it is upon all the lands of G. Croghan, and which were sold by him to these terre-tenants. The right of contribution, therefore, must exist; otherwise, where several are bound, the creditor may select any one, or more of them, to bear the burden, and discharge the whole debt. Where there is a common burden imposed on several persons, the right of contribution exists between them, on the plainest principles of morality and justice. (2 Saund. 51 a. note. Id. 72 p. note.) The doctrine of contribution is more necessary and just here, where lands are sold under execution, than in England, where they are held under an elegit. Our statute does not vary the common law doctrine, but embraces this most equitable and salutary principle of contribution, by allowing to a person, who has paid the whole of a judgment, where others are equally liable with him, a scire facias, to obtain contribution from the others. A return of two nihils to a scire facias, where the-debt is personal merely, is absurd enough, and violates one of- the clearest principles of justice, that no person shall be made to answer, until he has been summoned to appear. But in regard to a charge on land, if the sheriff returns that the tenant has nothing by which he can be summoned, how can the Court charge his land, as a terre-tenant, when, by the return, it appears that he has no land whatever. Here are tenants who have not been summoned, or warned at all, who have received no notice whatever; and they come, at the first day, and ask leave of the Court to be let in, to plead. Suppose one tenant comes in and pleads payment of the whole debt; must there not be a curia advisare
Henry, in reply.
p. 118It has been said, that, because there was a revival of the judgment once against the heirs, without the leave of the Court, a scire facias may go against the terre-tenants without leave. But the default, or acts of heirs, who are, also, terre-tenants, cannot affect or compromit the rights of the other terre-tenants. If the death of Hartwell does not abate the suit, then his legal representatives must be brought into Court by scire facias, which has not yet been done. The law on this subject is very fully and clearly laid down by Serjeant Williams, in his notes to Jefferson v. Morton, (2 Saund. 9. notes 8, 9, 10.) An imparlance is to be given to the tenants warned, until the other tenants are brought in. The judgment, therefore, in this case, has been premature and irregular. As, in an action against two joint tenants, if one only appears, you cannot proceed, until the other comes in. A lien on land does not survive; and, if it did survive, why have the plaintiffs proceeded against the legal representatives of some of the deceased tenants ? A nolle prosequi is equivalent to a discontinuance; and the defendants are entitled to costs. (Cooper v. Tiffin, 3 Term Rep. 511. 17 Johns. Rep. 268 .)
vult, until that plea is tried ? And, if found for the defend-an^ must not the plaintiff go without day, as to all the de~ fendants ? Then, we say, this judgment must be set aside as irregular. It cannot stand in part, and be set aside in part. It was premature. One of the pleas h,ad been demurred to. Can the plaintiff be permitted to leave any of the defendants he pleases out of Court, and proceed against the rest ? (Lord Raym. 600. Str. 783. 2 Bac. Abr. Error.) Several of the tenants have pleaded non-seisin.
delivered the opinion of the Court.
Motions have been made for relief, in several cases, on the applicati. n of the terre-tenants, on different grounds, and on different notices, adapted to the different classes of cases. There is, however, one ground of relief common to all of them, and if that is tenable, it supersedes the necessity of discriminating the cases. The application for relief comes from persons against whom judgment has been enter
p. 119
ed by default, at the January term, 1821, either on the return of two nihils, or upon returns of scire feci. In the former cases, there are affidavits of merits, and of surprise, from want of actual notice; and, in the latter, generally, of an intention to defend, and accounting for the omission to do so. The principle relied upon is, that with respect to those who have appeared and defended, being upwards of four hundred terre-tenants of the same lands on which the judgment is a lien, a nolle prosequi was entered on the 9th of April, 1821 ; and it was also entered as to the heirs of Croghan.
It has been insisted, that the entry of the nolle prosequi, as to a part of the terre-tenants, is a discontinuance of the action, as to all the others ; and that it is in. the nature of a retraxit, enuring to the benefit of those who did not defend, from whatever cause.
The law applicable to this question, is laid down with entire precision and accuracy, by Serjeant Williams, in his 4th note to 2 Saund. 51 a. He says, that although the judgment survives, as to the personalty, yet it does not as to the real estate; for, at common law, the plaintiff might take the goods of the survivor in execution by a fi. fa.; but the plaintiff, under the statute of Westminster 2, must sue out an elegit against the lands of the survivor, and the heir and terre-tenants of the deceased; and that where the lands of several are charged with a debt, it shall not be wholly on the survivor ; as, if a recognisance be acknowledged by several, the lands of them all are thereby become chargeable and execution must be equally made; and if one dies, the creditor must bring a scire facias against his heir and terretenants, and also, against the survivors; but it is otherwise where the lands are not bound; as, if two enter into a bond, and one dies before judgment, the survivor shall be charged alone. He states the case where judgment in debt was had against two, and one died; the plaintiff brought scire facias against the survivor only; the defendant pleaded, that the other had left lands and an heir, upon whom they had descended, and demanded judgment, if he should be compelled to answer, without the heir being warned; the plaintiff demurred, and judgment was given, that the defendant
p. 120
should answer, for that the judgment was against the person; and although, now, by the statute of Westminster 2, which gives the scire facias and elegit, he may charge the lands and make the judgment real, yet, it is at his election, to proceed in the personalty, if he will; but if he will take out execution upon the real lien, the charge must be equally against both, and the scire facias against both. Serjeant Williams refers to several cases in support of this doctrine, and they fully support him, particularly Sir William Harbert's case, 3 Co. 11. Many cases are there noticed, that where the charge is upon the land, which was in the hands of several persons when the charge was created, as in the ease of a recognisance, the conusee cannot extend the land of one conusor only, but all must be equally charged. So, if there be only one conusor, if divers persons purchase the lands subject to the recognisance, one only of the conusors shall not be charged, for he stands in equal degree with the others. The case of Sir John Langford is there stated, which was thus: Four men were bound in a recognisance, and afterwards one died, and his heir being within age, a scire facias was brought against the three survivors to have execution, who pleaded, that the heir of the conusor, who was dead, was within age, and as during his minority he could not be charged, and the survivors ought not to be charged, they prayed judgment. The fact not being denied, it was awarded, that the parol should demur, and the judgment was affirmed in error. So, if two men aliene lands with warranty, the lands of one only shall not be rendered in value $ neither, if one dies, shall the lands of the Survivor only be rendered in value, but the charge shall be equal on them both ; for a joint lien binding the lands shall not survive, or lie only on the survivor. Coke cautions the reader to note, that where it is said, before and often, in our books, that if one purchaser only be extended for the whole debt, he shall have contribution, it is not thereby intended that the others shall give or allow him any thing, by way of contribution; but it ought to be intended that the party who is alone extended for the whole, may, by audita querela, or scire facias, as the case requires, defeat the execution, and thereby he shall be restored to all the mesne profits» and
p. 121
compel the conusee to sue execution of the whole land 5 so in this manner every one shall he contributory, that is, the land of every terre-tenant shall be equally extended. The case of Edsar v. Smart, (Sir T. Raym. 26.) is, also, to the same point. There, a judgment was against two; one died, and a scire facias issued against the survivor; there was a plea, that he who died had an heir, who was in full life» On demurrer, the plaintiff had judgment. Wyndham, J. said, that the reason why this execution should be against the survivor, was, because the plaintiff hiay take a fi. fa. if he will, and perhaps he will not charge the land. Twisden, J. was of the same opinion; and he said, if upon this scire facias, the plaintiff takes an elegit, the defendant may have an audita querela, or he may suggest this matter, on the return of the elegit, and have a supersedeas. In Pennoir v. Brace, (1 Salk. 320.) Holt, Ch. J. held, that a capias, or fi. fa., being in the personalty, might survive, and might ho sued against the survivors, without a scire facias ; otherwise of an elegit, for there the heir is to he contributory.
I apprehend the law to be well settled, since the statute of Westminster 3., that where the judgment creditor proceeds to enforce his lien on the realty, and for that purpose, it becomes necessary to revive the judgment, he is bound to make every person having a fee in the land, a party to the proceeding ; and, in this case, the judgment against Croghan, being a lien on the real estate, in the hands of the terre-tenants, the plaintiffs are required by law to make all the terre-tenants parties to the scire facias, to the end that they may be made jointly contributory to the satisfaction and payment of the judgment. This has been shown to he the established principle, .under the statute of Westminster 2., which gave the creditor his remedy by the execution of elegit, under which he held the moiety of the debtor’s lands, until he was satisfied his debt and damages. At common law, the fi. fa. went merely against the goods and chattels of the debtor; such an execution, therefore, related merely to the personalty; hut, under our statute, which subjects the lands and tenements of the debtor to be sold, absolutely, for the satisfaction of the debt, it is, ordinarily, an execution partly in the personalty, and partly in the realty j
p. 122
and, in the present instance, it is entirely in the realty, tbs' the goods and chattels of the terre-tenants cannot be affected by the judgment, or any execution under it. The same principle which required the elegit to issue against all who ought to bear the burden, applies with much more force to the fi. fa. against the lands; for, in the former case, they were not to be sold, but a moiety only held, until the debt was paid; whereas, in the latter case, they are liable to be taken away for ever from the debtor. Besides, the principle is most just and equitable ; if the creditor, having the lien, can select a few, as in this case, to bear the whole burden, they may, probably, be crushed by its weight; but, if he must render them all contributory, the individual burden may be borne without ruin.
It was supposed, on the argument, that our statute, (1 N. R. L. 503.) giving remedy by way of contribution, where several persons are bound by a judgment, and one pays more than his share, had a bearing on this question. I apprehend that it has none. It merely provides for the case of an undue proportion of a judgment having been paid by, or levied upon the lands of one of the persons liable to a judgment. It does not profess to settle any principle, whereby the one may be subjected to pay more than his proportion, but merely gives a remedy where the case occurs. It seems to follow, from the principles to which I have referred, that the plaintiffs cannot have proceeded correctly, in entering a nolle prosequi against those who have appeared and pleaded, tailing judgment against such as have not pleaded t, and that they cannot be allowed to enforce the judgment thus taken.
The next question, under these circumstances, is, what relief is to be afforded to those against whom judgments have thus been taken, and what is the effect of the nolle prosequi ? The law has undergone a change in relation to the right of a plaintiff to enter a nolle prosequi, and as to the effect of it. It may be entered as to one of several defendants, in actions of tort, without affecting the plaintiff’s right to proceed against the others ; for, in such cases, the plaintiff has his election to sue them severally or jointly. So, where one of the defendants pleads matter which goes to
p. 123
Ms personal discharge, in an action necessarily joint, as in aassumpsit, or debt, such as bankruptcy, that he was never •executor, and, under the decisions of this Court, infancy, and such pleas as do not go to the action of the writ; in these cases, a nolle prosequi may be entered as to one defendant ; but where all the defendants are necessarily parties, and the plaintiff was obliged to make them parties, as in the proceedings against the terre-tenants, a discontinuance as to some, is a discontinuance as to all. In the case of Noke and Chiswell v. Ingham, (1 Wils. 89.) the action was upon promises. Noke pleaded a plea that was found against him, and judgment was rendered thereon. Chiswell pleaded a discharge as a bankrupt, and, as to him, a nolle prosequi was entered; and, on error, the Court affirmed the judgment, on the ground that it was a personal*discharge, and not a plea to the action. Denison, J. said, that if one defendant was to plead a plea that was to go to the action of the writ, he thought it might then have, a different consideration ; and, I think, Seijeant Williams, in his second note to 1 Saund. 207. evidently intimates, that in the case put by Denison, J=, it would be fatal. Mr. Tidd (Tidd’s Pr. 632.) comes to the same conclusion. In Chandler v. Parkes and Danks, (3 Esp. N. P. Rep. 76.) where, in an action for work and labour, one defendant pleaded the general issue, and the other infancy, to which last plea a nolle prosequi was entered, Lord Kenyon nonsuited the plaintiff, on the ground that the action was gone. This seems to be the inevitable consequence, in this case; for here, the plaintiff, being under the necessity to make all the terre-tenants parties, and to proceed against them all, until he was satisfied, has by his own act disabled himself from doing so. He cannot proceed against part of the terre-tenants, and discontinue as to part 5 and, having discontinued, he can proceed no further. The defendants are, then, entitled to their motion to set aside the defaults and judgments against such of the terretenants as have not pleaded, on the ground that the plaintiffs have entered a nolle prosequi as to such as have appeared and pleaded 5 and they are entitled, also, to be paid the costs of this motion.
The only remaining question is, whether the plaintiffs are
p. 124
liable to pay the costs, as in a case of discontinuance, as to sucjj 0f the defendants with respect to whom a nolle prosequi has been entered; and whether judgment is to be given for such costs, or the defendants are to be put to a prosecution of the bond given under the direction of this Court.
The 11th section of the act concerning costs, (1 N. R. L. 345.) gives the defendant costs, if the plaintiff suffers the suit to be discontinued; and it is a transcript of 8 Eliz. ch. 2. s. 2. In Cooper v. Tiffin, (3 Term Rep. 511.) the Court held, that a nolle prosequi could not be distinguished, in reason, from a discontinuance; and that the practice had been, to give costs in such cases. Tidd’s Pr. 630. is to the same effect. The motion is in the alternative, either for a judgment for costs, or for a rule that George W. Prevost, the assignee of the judgment, pay the costs ; and that the bond of Andrew Edmonston, filed as security for the payment of costs, to James Cooper, George Pomeroy, and others, be given up to the defendants, to be prosecuted. I incline to the opinion that the latter course would be most appropriate. Several other points were discussed on the argument, but the necessity of considering them is obviated by the opinion already expressed.
Motion granted accordingly.