Nesbit v. Manro ex rel. Warfield ( 1840 )

Chambers, J.,

delivered the opinion of the court.

Whether the scire facias against a terre tenant be an original proceeding, or a continuation of a former proceeding, on which point there is some obscurity in the authorities, we think the amendment was properly allowed under the circumstances of this case, so as to make the writ conform to the directions of the attorney, whose instructions are satisfactorily proved.

We are of opinion however, that the judgment of the court below, is not warranted by the amended scire facias.

The sevrefacias is in the nature of a declaration, and it should contain upon its face, such a statement of facts, as to.justify-. the process in respect to the form in which it issues, and the persons who are made parties to it.

In this writ, there is not only a want of facts in the recital to-justify the form in which the -process issued, but the facts recited show, that other parties should have been made. It states, that a judgment had been recovered by the plaintiff, against two defendants, and that it remained unexecuted, and on the authority of this state of facts, proceeds against the terre tenants of one of those defendants, as the proper persons, against whom alone, to- enforce the execution of the judgment.

No suggestion is made of the -death of the original defendants, or either of them; and they must be presumed therefore to be in full life, and if alive, were necessary parties.

The principle upon which an original party to the judgment if living, or his representative after his death, is to be made a party to a scire facias, is not that of contribution, as amongst different terre tenants. Neither the original defendant- or his heir, could claim contribution from terre tenants; but they are regarded as the persons most competent to know, and to prove the satisfaction of the judgment. We think the appellants might well demur to this scire facias, as manifestly insufficient on its face, to authorise the plaintiff to enforce his execution against them alone.

It is altogether unlike the case of a terre tenant, who is charged without naming other terre tenants, who ought to be made co-defendants. In such a case, the proceedings on their face, disclose-the fact, that the defendant proceeded against is liaable; but they do not show, that other persons are also liable, and the facts and circumstances upon- which- the obligation to share the liability is- supposed to depend, must necessarily be brought to the notice-of the court by plea; and this plea, must be in abatement, because it is not to discharge the defendant entirely, but only to lessen the amount of his responsibility.

No additional amendment could now be made to give to the writ a legal form; and in no event, could the appellee be enabled to recover in this oase, if it were returned to the court-mi Washington county, therefore we deem it unnecessary to .order a procedendo.

JUDGMENT REVERSED, AND JUDGMENT EOR APPELLANTS WITH COSTS.