Cumming v. Devisees
New York Supreme Court
Burr, for the defendants, moved to set aside the writs of scire facias and alias scire facias, issued in this cause, with a^ subsequent proceedings, for irregularity, The sci. fa. recited a judgment against Eden ¿y Pelatreau i that Eden is since dead ; and directed the Sheriff to make known to Rachel, the widow of Eden ; Sally Ann, Elizabeth and Rebecca, daughters of the said Rachel, and J0JM Pelatreau, devisees of Eden ; and also to the tertenants of all the lands, &c. in…
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Burr, for the defendants, moved to set aside the writs of scire facias and alias scire facias, issued in this cause, with a^ subsequent proceedings, for irregularity, The sci. fa. recited a judgment against Eden ¿y Pelatreau i that Eden is since dead ; and directed the Sheriff to make known to Rachel, the widow of Eden ; Sally Ann, Elizabeth and Rebecca, daughters of the said Rachel, and J0JM Pelatreau, devisees of Eden ; and also to the tertenants of all the lands, &c. in his bailiwick, of which Eden, &c- was seized, &c. This writ was tested May 18th, 1822, returnable the 1st Monday oí…
1Opinion of the Court
Curia.
It is objected that the sci.fa. should have been against the heirs as well as tertenants, &c. the former being *72liable to contribution. But such an objection cannot bé' . • J urged in this form. It should have been pleaded in abate-merit. The case of Whitney v. Camp et al. (3 John. Rep, 88,) *s a decisive answer to this ground. It is equally well settled that two nihils are equal to a return of scire feci ; and the rule applies to a proceeding against heirs, devisees and tertenants, provided they are named in the writ. But where it is against the heirs, devisees and tertenants,…
2Cited by2 opinions
- United States v. MacKSupreme Court of the United States · 1935
- Bronk v. BeckerNew York Supreme Court · 1837