Lusk v. Davidson , 3 Pen. & W. 229 ( 1831 )

Per Curiam.

By the third section of the act of 1798, it is ordered, that the scire facias shall be served on the terre-tenant, and on the defendant in the judgment, where he can be found. In the view of the legislature, then, the terre-tenant was the principal party, and the defendant, though ostensibly otherwise, but a party secondarily if at all concerned; and it is more reasonable to say that the provision for service of the defendant is but directory, and that the provision for service of the terre-tenant is peremptory. Every law that establishes a particular procedure, is, strictly speaking, directory; but it does not follow, that a part of the procedure, which is designed to protect one of the parties from collusion by the other, may be dispensed with. Every dictate of justice suggests, that the terre-tenant ought not to be bound by a judgment, whose operation is on the land exclusively, without having had a day in court; and we should strain a principle of construction already carried sufficiently far, were we to take for granted, that the legislature did not mean the provision for his protection to be enforced at all events. It is plain, therefore, that notwithstanding the judgment of revival confessed by the defendant, the lien is gone.

Judgment reversed, and judgment rendered for the terre-tenant.