20 Johns. 106 | N.Y. Sup. Ct. | 1822
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
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
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
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
The only remaining question is, whether the plaintiffs are
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.