&c., bounded, &c., he then, at S aforesaid, by his deed of bargain and sale, of that date, by him duly executed and acknowledged, did bargain, sell and convey in mortgage to the said D [defendant] the said premises, to have and to hold the same to her, and her heirs and assigns forever, upon this condition, that if the said R, his heirs, executors, administrators or assigns, should pay to the said D, or her executors, administrators or assigns, the sum of $-, with lawful interest therefor, in one year from the said date thereof, now past, according to the condition of his bond given her that same day, then that deed, as well as said bond, to be void. And the said R saith, that she there, on &c., entered into the said house and land, for and because the aforesaid condition of his said deed was broken, and hath continued possession thereof to this day; and that he afterwards, on &c., in order to redeem said house and land, tendered and offered to said D the sum of &c., for the payment of the sum then due from him to her, upon and by virtue of said bond, for securing the payment of which, said house and land were conveyed in mortgage to said D as aforesaid, and all costs which she had incurred about or respecting said house and land, and of all sums of money which she had disbursed and expended in necessary repairs, over and above what the rents and profits thereof amounted to, upon a just computation; and then and there requested her to accept the same, and to deliver possession of the premises to him, and to discharge the said mortgage thereof, by release, quitclaim, or some other legal conveyance. And the said R says, that the said sum of &c., so by him tendered to the said D, did then and there exceed the whole principal and interest then due on and by virtue of said bond, and which said house and land were conveyed to her, to secure the payment of as aforesaid, and all costs which had been incurred by her, on account of said house and land, and debt, together with all sums of money disbursed and expended by said D in repairing said house, and the buildings and fences on said land, and advancing and bettering said premises, over and above what the rents and profits thereof, received by her, did then amount to, upon a just computation; and yet she wholly denies the right of redemption of said premises to him, the said R; and she continues to hold him out of the same, to his damage, as he says, $2000; wherefore he brings this suit, and prays your honors to consider his case in equity, and that, upon his producing and lodging in

court all such sums of money as your honors shall find to be due to the said D, he may be restored to the title and possession of his dwellinghouse and land aforesaid. Whittemore v. Very, Nov. Term, 1801. See the late statutes. W. PRESCOTT.

NOTE. Where there is a mortgage conditioned for the payment of several sums of money, at several times, and the mortgagee enters for the first default of payment, in order to foreclose, the mortgagor, can only redeem by paying or tendering the whole amount due on the mortgage, and not merely the amount of the sum, for the non-payment of which the entry was made. Mann v. Richardson, 21 Pick. 355.

If the whole sum is not due, the court, upon payment of so much as is due, will make a special decree, leaving the mortgagee in possession, until the further sum shall become due. Ibid. See 5 Pick. 259.

But suppose a mortgage to be given for $1000 to be paid Jan. 1, 1840, and for the sum of $1000 to be paid Jan. 1, 1847, and on default of payment of the first sum the mortgagee enters to foreclose, is it to be understood that the mortgagor, in order to redeem in 1842, must tender the sum of $1000 to become due in 1847, as well as the sum due in 1840 ? No, he tenders the first sum, and the mortgagee, after accepting it, is entitled to retain possession, at common law, until the second breach (viz. in 1847) takes place. After the second breach, he ought to give notice, that he shall hold possession for the purpose of foreclosing, and the foreclosure will then take place at the expiration of three years from the time of that notice.

SCIRE FACIAS.

Scire Facias on the Absconding Act, 1738, ch. 16, sec. 4.

WHEREAS L and S, by the consideration of our Court of C. P., holden at &c., on &c., recovered judgment for the sum of $-damages, and costs of suit, taxed at $—, against the goods and effects of F A [an absconding and absent debtor] in the hands of M, as agent and trustee of said F. And whereas said L and S afterwards, at &c., on &c., purchased out of the clerk's office of our said court, our writ of execution upon that judgment, in due form of law, returnable into said court then next to be holden at &c., directed. to the sheriff &c., commanding him to serve, execute, and return the same, according to the precept thereof. And whereas the said writ of execution was afterwards, at &c., on the same day, delivered to one Y, then and ever since one of our deputy-sheriffs for said county of &c., who thereafterwards on the same day, required the said M to discover, expose, and subject the goods, effects, and credits of the

said F, in his hands, to be taken in execution for the satisfaction of the said judgment, which the said M then and there refused to do; whereupon the said Y returned the said execution into our Court of C. P., holden at &c., on &c., and returned thereon, that he had made diligent search after the goods, chattels, rights, and credits of the said F, whereon to levy the said execution, and could not find in his precinct, nor in the hands of said M, nor would the said M show or disclose any to him, whereon to levy the said execution; by means of all which, the said L and S are in danger of losing all benefit from said judgment, so recovered as aforesaid; and having supplicated us to grant a remedy in that behalf; willing therefore that justice be done to all our citizens, we command you that you make known to the said M, if he may be found in your precinct, that he appear before our justices of our Court of C. P. &c., to answer to the said L and S, and show cause, if any he hath, why judgment should not be entered up against him, for the said sum, as of his own proper goods and estate, and execution be thereupon awarded accordingly. And have you there this writ, &c. Witness, &c. PARSONS.

NOTE. The part between crotchets may be omitted under the Trustee Act.

Scire facias, by administrator de bonis non v. Executor for waste.

Whereas F, of &c., as administrator of the goods, chattels, rights, and credits of S, late of &c., not administered upon by R, former administrator thereon, before the justices of our Court of C. P., holden on &c., at &c., by the consideration of said justices, recovered judgment against the goods and estate of D, late of &c., testate, in the hands of H, as he was executor of the last will and testament of the said D, for the sum of $- damages, and also $- for costs and charges, by him about his suit in that behalf expended, as to us appears of record; and although judgment thereof be rendered as aforesaid, yet execution of the said damages. and costs doth yet remain to be made. And the said F, in his said capacity, on &c., sued out his writ of execution, in due form of law, on the same judgment, against the goods and estate of the said D in the hands of the said H, returnable into the clerk's office of the said court, within three months then next ensuing; and delivered the same on the same day, at &c., to be duly served, to W, then and ever s.nce one of the constables of the said town of &c., and

who there, on &c., made return accordingly of the same writ of execution, into the said office, in the words and figures following, viz. "Essex B-, January 15, 1795. By virtue of this precept, I have made diligent search and inquiry, and cannot find any goods or estate of the said D, the testator within named. And so I return this execution in no part satisfied;" and signed the same with his, the said W's, christian and surname, and the addition of his said office. And the said F, the said administrator, thereupon hath made suggestion to us, that the said H hath wasted the goods and estate of the said D, the testator; whereof the said F, the said administrator, hath made application to us to provide a remedy for him in that behalf. Now, to the end that justice be done, we command you that you make known unto the said H, that he be before our justices of our said Court of C. P., to be holden at &c., on &c., to show cause, if any he has, wherefore the said F ought not, in said capacity, to have his execution against him, the said H, for his damages and costs aforesaid; and further to do and receive what our said court shall then and there consider. And then and there have you this writ, with your doings therein. Hereof fail not. Witness, &c. DANE.

NOTE. A Scire Facias is a judicial writ and must pursue the nature of the judgment. Therefore, when the judgment is against two, Scire Facias must be so also. 2 Salk. 598.

Scire facias against administrator, on suggestion of waste. [Concise form.]

Whereas R, of &c., before our justices &c., by the consideration of our said justices, recovered judgment against the estate of G, late of &c., in the hands and under the administration of S, of &c., administrator &c., for the sum of $―, for costs and charges &c.; and although judgment be thereof rendered, and execution accordingly granted thereon, yet the same is returned by N, then and ever since a deputysheriff of &c., that he had made diligent inquiry for the estate of the said G, in the hands of the said S, but could find no estate in his hands to satisfy the said execution; and so he returned the same in no part satisfied. And whereas the said R, by his petition to our inferior court &c., held &c., suggested that the said S had wasted the said estate of the said G, to the value of the sums aforesaid, and sufficient to satisfy the same, and prayed that a writ of scire facias might issue against him to show cause, if any he have, why

execution should not be awarded against his own estate, and for want thereof, against his body, for the sums aforesaid; which our said court ordered accordingly. Now to the end, &c. R. DANA.

Scire facias against bail.

Whereas A, of &c., by the consideration of our justices of our Court of C. P., holden at &c., on &c. within and for &c., recovered judgment against E, of &c., for the sum of $-damages, and $- costs of suit; whereof the said E is convicted, as appears to us of record; and judgment thereof was given; and execution for the damages and costs aforesaid, in due form of law, was granted thereon, to the said A, bearing date the &c., directed to the sheriff of &c., and returnable into our Court of C. P., to be holden at &c., within &c., on &c., which said writ was thereafterwards committed to G, then and ever since a deputy-sheriff of &c., to be executed and returned according to law. And afterwards, viz. on &c., at &c., the said G made return of the same writ of execution into our said Court of C. P., holden at &c., on &c., with his indorsement thereon, in the words and figures following [here insert the return,] as by the writ of execution, now on file in the clerk's office of our said court, of record appears. And the said A avers that the said E hath avoided, and that the same judgment remains in full force, not satisfied, reversed, or annulled; and whereas, heretofore, when the said E was taken by the original writ, on which said judgment was given, viz. on &c., at &c., S, of &c., by his bond to our sheriff of &c., under his hand and seal duly executed, then and there became, and was bail and surety for the said E, upon the said original writ, not only for the said E's appearance at the court to which the said writ was returnable, and answering to the said A, in his plea therein declared; but also for the said E's abiding the final judgment thereon, and not avoiding; as by the bail-bond, bearing date the &c., in court to be produced, appears: nevertheless, the said E did not appear at our said court, when and where the same original writ was returnable; nor did he answer to the plea of the said A, therein declared against him; nor has he any way abided or performed the judgment aforesaid of our said court thereon; but hath avoided, and a return of non est inventus hath been du'y made on the writ of execution issued against him on said judgment as aforesaid ; and the same remains wholly