Maus against Maus, 5 Watts 315

The opinion of the Court was delivered by Kennedy, J. The first and second errors are bills of exception to the opinion of the court in admitting evidence objected to by the counsel of the plaintiff in error. It seems that Elizabeth Maus, one of the terre-tenants and plaintiff in error, claimed a part, if not the whole of the land, which she held, immediately from George Maus, who derived his title thereto from Philip Maus, the intestate debtor.

Any admissions therefore, made by George Maus, while owner of the land, tending to support the claim of the plaintiff below against it, would be admissible evidence against Elizabeth, the same as against George himself, had he continued to have held the land, and been warned as tenant under the scire facias. We therefore perceive no error in admitting the evidence.

The third error is, an objection made by the counsel for the plaintiff in error, to the court below permitting the scire facias, after the argument of the counsel had been concluded on the trial of the scire facias, to be amended upon the application of the counsel for the defendant in error, who was the plaintiff below, by changing the amount of the judgment, as recited therein, from 50 pounds to 363 dollars and 83 cents. The debt in the original judgment, obtained in 1813, against Philip Maus, in his lifetime, was 50 pounds.

This judgment was revived by scire facias, in 1S13; and the judgment of 1813 was revived by scire facias, in 1819; and that of 1819, was revived by scire facias, in 1829. The judgment given in a scire facias sued out here, upon a judgment in debt, is not merely an award of execution for the amount of the original judgment as it is in England; but having

an act of assembly, which authorises the recovery of interest upon the whole amount of the original judgment, including both debt and damages allowed for the detention thereof, from the date of its rendition, in order to meet this a judgment of quod recuperet is given for the aggregate amount of the first judgment, including both debt and damages as a principal, and interest thereon up to the time of entering it and an award of execution accordingly.

The amount, for which, the judgment is thus entered in the first scire facias, forms a new principal, upon which interest commences, running until paid or revived again by a scire facias sued out, not on the original judgment, but upon the one given in the first scire facias, in which a judgment is again entered for the amount of the judgment given in the preceding scire facias, with interest thereon to the day of entering it.

Accordingly every succeeding scire facias that is sued out, recites the judgment on the last preceding scire facias, and the judgment given therein is for the amount of the judgment so recited with interest thereon from its date to the entry of the new judgment.

By this course the scire facias is made to subserve a double purpose, to wit; first, that of continuing the lien of the original judgment down and connecting it with the judgment entered in each succeeding scire facias, so that the origin of the lien still continues to be the same, while the amount thereof is constantly increasing by lapse of time and the costs accruing upon the several judgments of revival; and second, that of recovering interest upon the original judgment, which can only be done in England by bringing an action of debt on it.

But the plaintiff by doing so, does not gain the benefit of the lien of the original judgment in the new action brought upon it with a view to recover the interest due thereon. Where no defence is made in the scire facias, it is the business of the prothonotary, upon the judgment’s being entered to calculate the interest, and thus ascertain the amount for which the judgment ought to be entered, and to set it down upon the record thereof.

And should he happen to commit an error in doing so, either by making it more or less than it ought to be, there is no doubt but it may be corrected afterwards at almost any time, before being paid. It is never too late to amend the record merely for the purpose of correcting a misprision of the clerk. This is every day’s practice and will be done after writ of error brought on account of it. Green v. Miller, 2 B. & Adolph. 781. Mansly v. Steacy, 4 Taunt. 588.

In such cases where there is always something to amend by, no injury can accrue from the practice to any one; as for instance, where the clerk has entered the judgment, “ de honis propriis” instead of “ de bonis testatoris,” it would be intolerable to reverse for such mistake; the court will direct the entry in such case to be amended instead of the judgment to be reversed. Green v. Bennet, 1 T. R. 782. So, a writ of scire facias will be directed to be amended by the record and made to conform to the judgment upon which it was intended to be sued out. Brasswell v. Jeco, 9 East 316. Perkins v.

Petit, 2 B. & P. 275. And indeed courts seem to have carried the practice of amending the record -still farther in order to give the plaintiff the benefit of his recovery where the record shows that by a trial upon the merits he has entitled himself to it. Accordingly, after-judgment in ejectment from Ireland affirmed, the-court amended the declaration by enlarging the term, though the-record had been remitted to Ireland. Vicars v. Heydon, (Error) Cowp. 841.

We feel satisfied that the court below committed no» excess of authority in permitting the amendment to be made; on, the contrary, we think it was their duty to do what they did. It was at most but a mere correction of clerical errors. The fourth error, we think, has something in it. The verdict of the jury charged the three-fourths of 343 dollars, upon the lands holden respectively by Elizabeth Maus, Joseph Maus and Susanna Strawbridge; the first two of whom were warned as terre-tenants, but as to the third, Susanna Strawbridge, it does not appear how she came to the notice of the jury.

In this there is probably some mistake, or something which ought to have been placed upon the record,, that has been omitted. The court, however, set aside the finding of the jury, not only as to Susanna Strawbridge, but likewise, as to-Joseph Maus; thus, throwing the whole three-fourths of the 343' dollars upon the land of Elizabeth alone. In England, the lands of the defendant to the judgment bound by it, which come afterwardsinto the hands of several purchasers, must upon execution sued out, be all extended and charged equally.

This any one of the purchasers, has a right to claim and to insist on, upon the principle of his being, entitled to contribution. Hence, if a scire facias be sued out, upon which only one of two terre-tenants is warned by the sheri £f, he who. is warned may plead the fact of there being another tenant, whose land is also bound by the judgment, and that he has not been warned;. and thus compel the plaintiff to sue but another scire facias for the purpose of warning and making the other tenant a party to the proceeding, and the first cannot be compelled to answer further, until this shall be done. See Jefferson v.

Morton, 2 Saund. Rep. 8 c, et seq. and also, note (10) by Sergeant Williams, page 9 a. I do not know, however, that the tenant warned by the first scire facias would have the same right here, though I do not mean to say, that he would not; but there is certainly a difference between the mode of taking lands in execution in England and here.

There the creditor, if he resorts to the lands of his debtor, is obliged to receive payment of his judgment out of the rents, issues and profits thereof, and if they be in the hands of several purchasers they must all be extended and charged equally, as already mentioned, for the purpose of dealing equitably with the tenants, by making each contribute his proportion and no more, to the payment of the judgment, And if the creditor should take out execution against the land of one alone, the tenant of the land taken in execution, may have relief by an audita querela, and compel the creditor to go against all the lands, unless he has suffered himself to be served with a scire facias as the only terre-tenant, and omits to plead that there are others, giving their names, &c. as mentioned above, in which case if execution be awarded against his land, he can have no relief or contribution.

See Sergeant Williams, note (10) 2 Saund. 9 a. But here the judgment creditor has a right to obtain payment by a sale of any distinct, separate portion of the lands, provided the rents, issues and profits of it beyond reprizes, be found insufficient to pay the debt within the space of seven years, notwithstanding the judgment be a lien upon twenty different lots or tracts of land, in the hands, severally of as many different purchasers.

But still the tenant whose land is taken and sold to pay the debt, if he stands in equalijure with the remaining nineteen tenants, will be entitled to contribution; and may recover it, if in no other mode, by an action on the case against each, for his proper proportion, according to the relative value of his land. Or it may be, that if he pays off the amount of the judgment, and thus prevents a sale of his land, that the court would permit him to use the judgment for the purpose of obtaining or securing to himself contribution.

It may be of the first importance, indeed, to a party in some cases, who has paid more than his proportion of the debt, to have the judgment as a security at least, by means of which he may ultimately obtain contribution.

And, although the court cannot of itself directly undertake to settle and determine the sum of money, that each of the tenants shall contribute, yet it can direct an issue to be formed for the purpose of ascertaining that, and every fact by a jury, that may be material and necessary to be known and established, so that the court may be able to direct the proceeding upon the judgment in such a manner as to compel each to pay his due proportion.

Under the particular circumstances of this case, however, it does not appear to be absolutely necessary, that we should decide whether one of two or more tenants of different tracts of land, bound by the same judgment, upon being warned by a scire facias sued out thereon, can compel the plaintiff to warn the others, and make them parties to the suit, before he shall proceed further in it. For he has of his own will warned them all here, and having done so, can he afterwards relinquish the proceeding against one or more without giving it up as to all of them? Can the court even grant him leave to do so?

May it not prejudice the right of the party against whom the suit is continued and prosecuted as regards his obtaining contribution in case he should be compelled to pay?

It certainly may, for if the suit were to be prosecuted against all, and finally it should be adjudged that the lands of all were liable, this would be one step gained by each towards maintaining his right for contribution against the others, in case he should be made to pay the debt; because, on settling the question of contribution among them, none of them would be permitted to deny the fact of his land having been equally liable with that of the others to the payment of the judgment: the judgment would be considered conclusive evidence on that point; and it also appears to me, that it would be prima facie evidence of their being bound to contribute to the payment of the debt according to the value of their respective lands.

Being only prima facie evidence, however, for this purpose, it may, to be sure, be repelled by other evidence showing, that they do not stand in equalijure.

For instance, one of three, being compelled to pay the whole debt, might be the heir of the defendant to the judgment, and hold his land by descent, while the other two were purchasers of their lands from the debtor for a valuable consideration; it is certain, that upon this being shown, the presumption arising from the circumstance of the execution of the judgment being awarded against the lands of the three, the first, upon paying the judgment, or upon his land alone being sold for that purpose, acquired a right to contribution, would be completely repelled: because, as against the latter two, he would have no equity at all, having paid nothing for his land.

But still it cannot be denied, but the award of execution in the scire facias against the lands of all, who are warned as terre-tenants, is some evidence, say, at least, one link in the chain necessary to be made out, to support a claim for contribution by any" one of them who shall have been compelled to pay the judgment, or more of it than his due proportion.

Without the aid of such evidence, then it might frequently happen, that in the course of a very short time perhaps at the very time of his being compelled to pay the money, he would be wholly unable to maintain his claim for contribution, but by means of it he is enabled to establish incontrovertibly the joint liability of their lands, which otherwise he might not be able to do.

But under another view-suggested above, it may be of the utmost importance to one terre-tenant, when there are more, that all should be made parties to the scire facias, and that there should be an award of execution against the lands of all, because notwithstanding his land alone may be taken in execution, and he compelled to pay the whole of the judgment, still he may obtain the benefit of the judgment, under the direction of the court, to enable him to recover contribution from the others, who may be insolvent, and therefore without the benefit of the judgment, which is the first lien upon their lands, he would be completely remediless.

Now from this view of the doctrine and principles which seem to be applicable to the case before us, it is evident, that Elizabeth Maus, the plaintiff in error, may be injured, and perhaps greatly too, by the course that has been adopted and is about to be pursued.

For, although the evidence adduced on the trial, may not have been sufficient in the opinion of the court, who doubtless judged correctly as to it in this respect, to authorise a verdict against Joseph Maus or Susanna Strawbridge, if she was properly before the jury, which, however, does not appear to have been the case, yet upon another trial, Elizabeth, if she is not able to show that her lands are held free of the judgment, may prove by additional evidence, which unquestionably she has a right to do, if she can, that the lands holden by Joseph Maus and Philip Strawbridge, who seem to have been warned, but lost sight of altogether on the trial, are equally liable to pay the judgment with her own.

If this were the case of a claim founded upon a tort, where the right of contribution could not exist among the defendants, setting aside the verdict as to some of the defendants only when it was against all, might possibly be right enough, but here the case is altogether different, as we have shown. The court we think ought either to have set the verdict aside as to all or else as to none; so that the footing upon which the defendants stood, both in relation to the judgment and to each other, might ultimately have been decided by a jury under the advice of the court, as long as any one of them desired it.

We also think that it is not competent for the plaintiff, in the judgment, to entera nolle prosequi, as to one or more of the terre-tenants, without doing so as to all, or if he persists in doing so, it will operate in favour of all. We think, therefore, that the fourth error has been sustained, and that the judgment of the court below must be reversed on account of' it.

The question attempted to be raised by the fifth error, which' is the only remaining one that has been assigned, is not presented by the record, and therefore, cannot be noticed; but I think it probable that the case of Fetterman and Murphy, in 4 Watts, is conclusive of it. Judgment reversed, and a venire de novo awarded.