E. T. 1852. GEORGE D. FOTTRELL, Assignee of JOHN CLANCY, v. THE HEIR AND TERTENANTS OF ARTHUR A. GRIFFITH. The That after April 26, 27. Asci. fa. issued by the assignee of a judgment, directed the Sheriff to make known as well "to the heirs of the conusor of the said judg ment, as also to the several tenants to the lands and tenements which were of the said conusor, &c., to show if they have or know any thing to say for themselves Demurrer to a scire facias, to revive a judgment against the heir and tertenants of the conusor, and to the return thereto. scire facias stated the recovery of a judgment in the Court of Exchequer, in Hilary Term, in the fifty-fifth year of the reign of George the Third, by John Clancy against Arthur Achmuty Griffith, for a certain debt of £575. 8s. 4d. of the late Irish currency, as also for £2. 12s. 1d. of the same currency for damages. the recovery of the said judgment, the said John Clancy, by deed duly executed according to the form of the statute, assigned the judgment debt and damages aforesaid, according to the form of the statute in such case made and provided, to George Drevar Fottrell, in Michaelmas Term, in the 15th year of the reign of her present Majesty, Queen Victoria. That the said Arthur Achmuty Griffith ages aforesaid was dead, and died seised in his demesne as of fee or of a descend- be made, &c., ible freehold of divers lands and tenements in the county of the said Monaghan, and that execution of the judgment yet remained to Sheriff be done. The scire facias then proceeded in these words:-"We "therefore command you that by honest and lawful men of your "bailiwick you make known as well to the heirs of the said Arthur 'Achmuty Griffith, deceased, as also to the several tenants to the "lands and tenements which were of the said Arthur Achmuty "Griffith, deceased, in the aforesaid term of Hilary, in the fifty"fifth year of the reign of his late Majesty, King George the 66 wherefore the debt and dam ought not to according to re covery." The re turned that he had "made known to the within-named A B and C, heiresses-at law of the said conusor, and also to D and E, tenants to. the lands and premises within-mentioned." Held, that though the words, "the lands," in the sci. fa. meant "all the lands," they had not that signification necessarily in the return, and that it was therefore bad on special demurrer, for ambiguity. Held also, it is sufficient in a sci. fa. at suit of assignee of a judgment, to pray judgment "according to the said recovery," without the addition of the words "and assignment." Quare-Necessary to specify the lands by name, in the return. FOTTRELL v. GRIFFITH. E. T. 1852. " Third, aforesaid, or whereof he was at any time afterwards seised Exchequer. "in your bailiwick, to whomsoever they have come, that they and "every of them may be before the Barons of our Exchequer at "the Queen's Courts, Dublin, on the 12th day of December, instant, "to show if they have or know any thing to say for themselves, "wherefore the debt and damages aforesaid ought not to be made "of these lands and tenements, and rendered to the said George "Drevar Fottrell, according to the said recovery, if to him it shall 66 seem expedient; and then have you there the names of those by "whom you shall make it known to them, and this writ: witness," &c. The Sheriff made the following return to the scire facias :"By virtue of this writ, by James Graham and John Murphy, "honest and faithful men of my bailiwick, I have made known "to the within-named Margaret Griffith, and Rachael Achmuty "Griffith, heiresses-at-law of A. A. Griffith, and also to John Gillespie, and James Gillespie, and Marshall Moore, tenants to "the lands and premises within-mentioned, that they be before the "Barons of the Exchequer on the day and at the place within"mentioned, to show as within-mentioned: so answers," &c. 66 A demurrer was taken to the scire facias and return by James Gillespie, mentioned in the return, as to the lands and premises whereof the said James Gillespie was so returned tertenant; and the said James Gillespie, according to the form of the statute, stated amongst others the following causes of demurrer to the scire facias and return:-That the time and place of the assignments of the said judgment by said deed are not averred in the said scire facias, or that the memorial of said deed was duly executed pursuant to the statute. That the Sheriff was not commanded by the said writ to summon the several tenants of all the lands and tenements in his bailiwick which were of the said A. A. Griffith, deceased, at the time of the rendition of the said judgment, or whereof he was at any time afterwards seised. That the said writ of scire facias prays execution according to the recovery of the judgment aforesaid merely, and omits to pray execution for the said George Drevar Fottrell as assignee, according to the form and effect of the said assignment of the judgment aforesaid. That the said George Drevar Exchequer. FOTTRELL GRIFFITH. Fottrell is not designated in the said writ in his proper character as E. T. 1852. assignee of the said judgment. That the said writ varies and departs from the usual and accustomed forms of such writs. That the return to the writ was framed as if the said writ were a special writ under O'Neill's Act, and was applicable to a proceeding under said Act only. That the return assumed that Margaret Griffith and Rachael A. Griffith, therein described as heiresses-at-law of A. A. Griffith, were named in the writ of scire facias, although no such persons in fact are therein named. That the return does not state that the Sheriff summoned all the tenants to the lands and tenements in the return mentioned. That the Sheriff does not in his return state there were no other tenants of the said lands and tenements in the return mentioned, or that there were no tenants of any other lands or tenements within the bailiwick of the said Sheriff, and also that the return did not follow the exigency of the said writ of scire facias. That the return did not specify by name, or other sufficient description, the lands and tenements therein mentioned, or the lands and tenements whereof the said Arthur A. Griffith was seised at the time of the rendition of the said judgment, or over which he had a disposing power which he might have exercised for his own benefit, without the assent of any other person. That the Sheriff did not by his return certify that there were not any other heirs, or any other tenants of the lands and tenements, rectories, rents or hereditaments, whereof the said Arthur A. Griffith, or any other person, to the use of or in trust for him, was seised in fee, or of a descendible freehold, or over which the said Arthur A. Griffith had a disposing power which he might, without the assent of any other person, exercise for his own benefit at the time of the rendition of the said judgment, or at any time afterwards, within the bailiwick of the said Sheriff. That the said return is on the face of it defective and evasive, and does not supply sufficient information to enable the said James Gillespie to plead to the action. Also that the return varies from the established forms of returns in such cases, and is in other respects uncertain, &c. E. T. 1852. FOTTRELL V. GRIFFITH. M Blain opened the demurrer. The judgment appears on the face of the sci. fa. to be barred by the Statute of Limitations. There is no allegation of a judgment of revivor: Ferguson v. Livingston & Wife (a). Neither is it averred in the scire facias that the judgment had been assigned, and that it was recoverable by the force of such assignment. In the form in Ferguson's Forms, p. 354, the following words are contained :— 66 66 According to the form of the said recovery and of said statute." The omission of the words "recovered against," in a writ of scire facias, was held fatal on special demurrer: Moriarty v. Wilson (b). The right of a party suing must be proved as it is averred: M Sweeny v. Longfield & others (c). Jebb, J., says "These "words, 'as incumbent of the parish of Templeroe,' are an allegation "of the right in which the taking of the distress is avowed, and "limit the defendant to the proof of a taking in that right. So, "where a plaintiff declares as executor, he can only recover in that capacity; and if he merely describe himself executor, his title "must be in his own right." A scire facias should conclude with the averment, “quare executio fieri non debet," and if the words “fieri non debet" be omitted, the omission is fatal: Com. Dig. Pl., p. 523. If the words, "according to the recovery," were altogether omitted, the sci. fa. would be bad, as a violation of established forms. The return is framed as if it were a return to a writ of sci. fa, under 26 G. 3, c. 31; for it refers to persons supposed to be named in the writ, using the words, "the within-named." There should have been either an allegation that the tenants summoned are the tenants of all the lands, or a negative clause stating there were no other tenants of the lands or tenements of the conusor : Tidd's Forms, p. 483, Appendix to 9th ed.; Panton v. Hall (d). In the note (7) to Jefferson v. Morton & others (e), the case of Panton v. Hall is referred to; and the rule in that case is laid down as follows:-" 2 Salk., p. 598, Panton v. Hall. The return "of the Sheriff was held ill, because it was that A, B and C (a) 9 Ir. Eq. Rep. 202. (b) 1 Ir. Law Rep. 52. (c) 2 H. & Br. 194. (d) Carth. 105. (e) 2 Saund. 9. 66 were tenants of lands, instead of tenants of all the lands in his "bailiwick; but the present return seems proper without the word "all, because it is afterwards averred that there were no other "tenants of the conusor in his bailiwick whom he could warn." This case is also referred to in Com. Dig., Pleader, p. 528, and in 2 Tidd's Practice, p. 1124, 9th ed. Consistently with the return, there may have been other heirs-at-law of the conusor of the judgment. That the return is a departure from the established forms, and bad on that ground: M'Nevin v. Dalton (a). O'Callaghan, with D. Lynch, in support of the pleading. With respect to averring that execution was sought as assignee of the judgment, it is not necessary; having stated the fact of the recovery and assignment of the judgment, it is sufficient then to pray execution, without alleging that it is according to the assignment and recovery. The case of executors is different, as there the character is representative, or en autre droit, and the judgment of revivor is different in its results from that by the original conusee or assignee; yet it has been decided that even in the case of a sci. fa., by the executor of the conusee, whereby the defendant was called on to show cause why the plaintiff should not have execution against the heir, according to the form of the recovery, without stating "as executor," the averment is sufficient: Haynington, executor, v. Cairnes (b). The same point was ruled in Vance and another, executors of Falls, v. Brassington (c).—[PIGOT, C. B. You need not trouble yourself any further on that point.]—The main point then is on the return, whether the omission of the word "all" is fatal to it, there being no negative words. But it is submitted that the return here is equivalent to a return of the tenants of "all" the lands, which would be sufficient. The scire facias itself states "the lands and tenements of Arthur A. Griffith, within the county of Monaghan;" those words must mean "all" the lands. [PIGOT, C. B. We are agreed that the words of the scire facias must be taken to mean all the lands, as it is its business to include (b) 5 Ir. Law Rep. 333. (a) 4 Ir. Law Rep. 406. (c) 1 Ir. Jur. 8. E. T. 1852. FOTTRELL v. GRIFFITH. |