Green v. Bailey

3 N.H. 33

• Court: Superior Court of New Hampshire
• Decided: October 15, 1823
• Status: Published

Opinion

Richardson, C. J.

At common law, after a full and perfect execution had by extent returned and of record, there could be no re-extent upon any eviction ; but if an extent were insufficient inlaw, in that case there might, at common law, be a re-extent. Coke Litt. 290, a.—2 Croke 338, Crawley vs. Lydgeat — Tidd’s Prac 950.

It has always been held, in this state, that, if an extent be Insufficient upon the face of it to pass the land, the judgment remains unsatisfied ; and that an action of debt will lie to enforce the payment of it. This point was decided in this county, December term, 1815, in the case of Chase vs. Chase ; & see 1 N. H. Rep. 371, Sullivan vs. M'Kean.—4 Mass. Rep. 402, Ladd vs. Blunt.—9 ditto 92, Tate vs. Anderson.

In the present case, it does not appear that there is any defect in the extent. But it is admitted by the pleadings, that the debtor liad no interest in the land at the time the extent was made : and the question is, whether, in such a case, debt lies upon the judgment ?

The statute of 32 Henry VIII., Chap. 5, provided a scire facias for a case of this kind. 2 Tidd’s Prac. 941, 951.-Coke Litt. 289, b. And our statute provides the same remedy. 1 N. H. Laws 183. A like remedy is provided by the statute of Massachusetts. Statute of 1785, Chap. 6. It is a rule of law, that when a statute has created a new right, and has also prescribed a remedy for the enjoyment of the right, he, who claims the right, must pursue the statute remedy. 5 Mass. Rep. 514, Smith v. Drew.—7 ditto 202, Bigelow vs. C. & C. T. Corporation.—3 ditto 307, Gedney vs. Tewksbury.—5 John. Rep. 175, Almy vs. Harris.

It would seem then, that, when a party has extended his execution upon land, not the debtor’s, his remedy is a scire; facias, and not an action of debt. It has, however, been decided otherwise in Massachusetts. 14 Mass. Rep. 378, Gooch vs. Atkins.—12 ditto 195, Green vs. Hatch. And as the provisions of the statute there are substantially the same as those of our statute, these decisions may be considered as directly in point. But unfortunately the grounds of these decisions do not appear in the reported cases, and the principles, upon which they are to be supported, seem to us not to be very obvious.

In addition to the reason above stated, why debt cannot be .maintained, that the remedy given by the statute, creating the right must be pursued, there arc one or two oilier reasons, which seem to us to have some weight. The wrii of scire facias is limited by the statute of December 22, 1308, to be brought within twenty years ; and it is further prov ided By statute, that if it shall appear that the creditor has no just cause for an application for a scire facias, the debtor shall be entitled to double costs. Now if debt can be maintained, the debtor will be deprived of the advantages which these provisions were intended to give him. And we are of opinion that there must he .

Judgment for the defendant,