#### Speight vs. the heirs, devisees and terrretenant of Wade.

nPÍIíS was a sci. fa» against the children of Thomas Wade arid - - Holding Wade, who were the sons of Thomas the testator^ So subject tne real estate of Thomas the testator, in their hands, to the satisfaction of a debt recovered, against hi* executoi 5. The defendants to the sci. fa, pleaded nothing by descent on ike day of the sci.fi. taken out. The plaintiff replied, that, lands descendl sdor were devised.to them. Demurrer and joinder t. the pleadings on'the part oi terrstenants arc omitted here, hut noticed in the argument, they were to this-effect, that the lands in their pos» session were not bound by: any judgment obtained against the tes<-’tdior in his lije time, &•.

Hay watch in'suppon. of the demurrer. The plea is nothing by descent on'the day of she sss. fa,-**'.he replication is, in. substance^, *188that the-y had ]aric!s before the date of the sci.fa. by descentand upon this there is a demurrer. The fact may be, that the lands have been recovered from the heir by some person having a better title, or sold by f. fa. for ths debt of the ancestor. — . The plea of nothing by descent on the day of the isssuing of the writ, was at the common law, a good plea to protect the heir against the action of a creditor of the ancestor.— Ba. Ab. Heir F. 2 Neis. Ab. PI, 7. PI. fl. Hob. 248. 3 Ley. •189. '5 Mo. 122, In England this was remedied by the Sand 4 W. & M. sec. 6. which enables the creditor to reply as the plaintiffs have done here, that the heir had lands before the writ taken out against him. That act never' was in force here, "and the inconvenience of the rule of the common lav/ was remedied by our act of 1789, cb. 39 sec. 3. This act subjects the heir if he has sold, aliened or made over before action brought or process, sued out against him. If sold by fi. fa. either for the debt of his ancestor or for his own debt, this act leaves him as it found him, under the regulation of the common law rules. In England, where lands could be parted with no otherwise than by the alienation of the heir, for there it could not be sold by execution, such a replication would prove he had received the value j but in this countrv it proves no such thing ; and therefore the replication, prescribed by their act is not applicable to such a plea in this state, not does it shew the heir to be liable. The common law is altered only as far as the'act of 1789 alters it, and any replica» tion not given by this act is not a good one. The replication given under our act is, that the heir aliened., sold or made over before the action against him. It may be argued, that if the replica» ion be not good, neither is the plea t and that then judgment is to be given on the sci.fa. and that the proper judgment upon the sci.fa. is that the plaintiff shall have execution against the lands descended. If such judgment is to be given upon the sci.fa. for want of a plea, or upon a bad plea, it must be either, first, by the common law ; or secondly, by some British statute enforced here ; or thirdly, by some act or acts of our Assembly.

First, then, by the common law, the action against the heir was debt in the debet and delinct; because being chargeable in. respect of the land, and he holding that in jure proprio, the debt was so also ; Plow. Com. 441.' Bull. N. P. $. Rep. 36.. ' Jus® for the same reason that a husband is charged for the deht oi his wife which shall be in jure proprio, because he is charged in respect of property which he holds in jure proprio. The judgment, in this action was, that the plaintiff recover his debt, to be levied de bonis propriis of the heir, except i'n one single instance ; and; that was where he confessed the' deht and pointed out his asset? by his plea ; in which case the judgment was as. cited in Plowden '439 to he levied oj‘ the lands specified in the plea- and also in the judgment, the whole oi which were to be delivered to the phir.-» *189tiff, until by the yearly value the debt and damages shall be levied. 3 Rap. 12. If after judgment the debtor died, the plaintiff lost his debt, for the bond being extinguished by the judgment and there being then no law for b'md'ng the lands by judgment, no action could be on the bond nor any execution on the judgment ; 2 Atk. 609. The binding of lands by a judgment was not known in the law until after the statute which gave the clcgit, which will presently he noticed. At the common law, therefore, títere was no such thing as binding lands by a judgment, much less in the case of an heir, against whom the judgment was in all cases to be levied, by fi. fa. against his goods and chattels, or by levari facias of the piofius of his lands ; except in the single instance, where he discharged his private property by shewing in certainty the insets he had. Piow. 440. C. Digest Pleader. 2 K. A Carth. 93.

Secondly; this idea that the judgment is to be against the lands, upon nihil dicit, or a bad bad plea, is not warranted by any British act of parliament, it is true some alteration was made in the law by the act of the 13 Kd. 1 ch. 18, which for the benefit of creditors, and to advance the national credit, directed that when a debt should be recovered, it should be in the election r>r the plaintiff to have a f-fa, or writ directed to the sheriff to deliver to him s.U the chattels of the debtor and a moiety of his land. In order to promote the views of the legislature, the Judges gave a construction to this act which secured the creditor os soon as he obtained his judgment; for they said the lands roere bound from the day of the judgment recovered ; and accordingly the elcgii was so formed, it commanded the sheriff to deliver a moiety of all the lands the debtor had on the day of the judgment or at any time since. This was the first instance of binding lands hv judgment. One consqeuence of it was, that if judgment was against an ancestor and he died, though the heir as at common law could not be sued on the bond of his ancestor, for that was extinguished, yet as the lands were bound by the judgment, and came to him charged with it, he was notas at common law exempt from the debt: but a moiety of the lands were liable to he extended as at the death of the ancestor : and he was chargeable not as heir, because no action of debt would lie against him, hut as terretenantor holder of the land already bound before it came to his possession ; in which case the judgment is quite different from that against the heir. The latter is ol the lands, pointed out by the plea, to be satisfied out of all of there which are to hr delivered to the creditor as at the common law ; the former h for the creditor to have execution of a moiety of" “he lands hound by the judgment; or in other words, the same execution the lands were liable to by the judgment against the ancestor before his death. Cro. C. 296. 2 Atk. 608 609. Carth. 33, TJodex this statute the solfa, vs, terretenants began, not he-*190fore it. The object of it was to have execution against the lantla» of the judgment, which bound them: but it issued only in respect oi lands already bound by ajudgim nt; it di 1 not issue in any instance where the lands were not bound by a judgment; nor tiid it ever issue against a person as heir, but asterreienantonly. How was it possible he "cod'd be suet! as heir, when the bond being extinguished by the judgment, there was nothing to'sue him upon! $ C. Digest Pleader 3. L. 13. Cro. C. 296. Garth. 93. 3 Rep. 12. Then if there be no judgment binding the land there can be no 'set. fa. against any one, much less against the heir to have, execution uf that judgment; it is evident no such .sci.fa, could issue under the act of 13 Ed. 3 ch. IS. Could it issue under any other? The next relative to this subject is that of the 5 Geo.'2, ch. ?, that makes these alterations; namely, that lands shall be liable to ail just debts as well as to specialty debts in • which the heir is hound, and shall he liable to be sold as personal estates, for the satisfaction of such debts. It may be questioned whether under this the binding oflands by judgment was nbt done avvav. it was the clegit which bound them because it cotiti* manded the sheriff to deliver the moiety of the lands which the debtor had on the clay of the judgment; but by this act thej£> fa. is introduced instead of the flegii, and that commands no such thing. The land is now to be sold in like manner as fir-sanal estates are sold for the satisfaction of debts. And how is* ■that? Why, liable to be sold if iu the possession of the defendant at the time the fi-fa. issues ; but if fairly sold before that time, not liable. It will be allowed on all hands, that the f-fa» binds only from the teste. It seems fairan.d logical to conclude» • that'if lands are to be sold in like manner as personal estates», and if personal estates are only bound by the teste oS the J?. fa, so also are the lands ; and that if a sale of personal estate between the judgment aud the fi. fa- is good ; so also is a sale'oC the lands : consequently, that the lands are not bound by judgment, even against the ancestor, unless execution issued in his lifetime : and then it follows, that the sci.fa. against the heir-as tern-tenant where execution of the judgment against the ancestor is also done away : and that there is no other way in such'case to'proceed against the heir hut upon the judgment as a just debt under this-act, which the heir is liable to pay as he is other just debts. Waving this, however, let us admit that lands continued after this act, to be bound by judgment as before : they could only be bound by á judgment against the ancestor, certainly not by a judgment against the executor i for by the act, laiids are to be assets for the satisfaction of debts, as real estates are by the law of England, and to be said like personal t states ; they are not to he aisets like personal estates also. Being liable as rt al estates |n England are, if ño judgment is obiainedtigainst the anctsior, they car. there only be bound by a judgment to- be obtained against the heir : it cannot be pretended they ate assets in the. *191hands of the executor; and consequently are not within the words used in the judgment against the. executor, to be levied vf ike goods and chattels of die deceased, in his hands. If fiot within these words, can «¡uy execution waira.Utd by the judgment, extend 10 i'ta, and caüse them to be sold as assets in the hands of the executor ? if not to be afflcteri as assets m his hands, w:ut pretence is there for saying that real assets descend to, and in the hands of the heir can be affected by ^ judgment to be levied out of the personal assets of the deceased ? There is not a colour of reason for this, and the contrary has been expressly decided in our courts»

If by the statuus, then lands cannot be sold under a set. fa. unless bound by a judgment against the ancestor. Has our act of 17/7, ch. 2. sec. 29, made any alteration ia this respect? this being the next act oti the subject in the order of time.

ft directs that all process formerly issuing against goods and chattels, lands and tenements, shall still issue in the same way, and that all which issued agwnst goods and chattels only, should there,, after issue against lands and tenements as well as goods and ehe>t~ Sets, ft then directs that the sheriff shall sell personal estate before the real estate. Some have supposed that as since this act, .executions which before issued only against good and chattels* are now to issue against lands and tenements also; that therefore the execution which formerly issued upon a judgment against an executor, shall now be issued against the goods and chattels, lands and tenements of the deceased. The executions referred to in the act just cited, are executions issued upost judgments by justices of the peace, which were not allowed to affect Lands ’till the act of 1777: See Davis’s Revisa!, p. 494.— It would be absurd in the highest degree to say that lands descended and belonging to one person, should, be affected by proceedings against another no way interested therein, except to throw the burthen on the lands, and to exonerate the personal estate as far as possible, if after this act, and before the passage of any other on the subject, such an execution had issued, could the land ot the heir be sold? No, surely, for the judgment against the executor was not altered Irons what it was by the common law, “ to be levied of the goods and chattels of the deceased in the hands oj his executors ” The act ot 1777, contemplates the ease of the original debtor still living j it means to con-fina the act of George the id, and at the same time to snake an . exception to the generality cf its terms ; namely , to make personal estate the primary fund, for the satisfaction of executions ; and so give the same power to justices to affect lands by their judgments, as the courts themselves had. As this act however, said nothing about the case of a debtor who died before judgment against him, it became doubtful how his lands could be proceeded against. They could not be proceeded against as Vn *192the hands of a terretenant, because there was no judgment; and after a judgment against an executor, he seemed to be at the end of his process : ior if there were no assets in the hands of the executor, the judgment was oí assets quuxdo accidermt; and so no execution could issue ’till assets came to his hands. It there was judgment against the executor, because there were assets in his hands, he was bound to satisfy the judgment, in no case then of a judgment against an executor, coulu execution issue against the lands of the heir : most clearly, lands were not assets in the hands of the executor, so as to be levied in pursuance to the judgment, to be levied of the goods and chattel!) of the deceased in the hands cf his executor. In case of a judgment against the ancestor, the mode of preceding was plain enough : There is no binding of lands therefore under this act. The words supposed to work that effect, have a plain reference to another ease— that of an original debtor.

The act o£1777, having not provided for the case of a deceased debtor, and the mode of obtaining execution against his lands, it became necessary to make that provision by a new act; and the act of 1784, ch. 11, was made for the purpose. It recites the doubts entertained, whether real estates of deceased debtors, in the hands of heirs or devisees, were liable to the payment of debts upon judgments against the executor or administrator: and without deciding one way or the other, (because estates might be held under such executions, which only the judiciary could properly decide upon,) it directs, that for the future, no execution should issue before taking out a sci. fa. against the heir or de-visee., to shew cause why execution should not issue against the real estate.

Upon this act, it is strongly contended, that as the heir is to shew cause why the execution should not issue against his lands, that therefore the judgment upon the sci. fa. is to be, that the execution shall issue against the lands; and consequently,- that the judgment against tue executor must be such an one as binds the lands.

There is some plausibility in these remarks, but nothing of substance. 1 would ask, what is the common law judgment against an executor, who has fully administered? For this by «he act of 1784, is the judgment upon wtiich the sci. fa. is to issue ¿ t.hacis a judgment to be levied quando assets accidtrint. 3 Term, 6S8: then lands cannot he bound by it, lor if they are not assets in the hands of the executor, they never will be, and do not come under the term quando acciderint.. If they are present assets, they can never be affected, lor the executor has fully administered them : the verdict says so. If the only object of i'ie sci. fa. is to have execution of the judgment against the ext autor, n must be an execution which is capable of issuing upon the judgment,. Now wha- execution can issue upon a judgment *193f,’» be levied A bonis testatorh fiando ? Scire .actas to have tare-ia all insuacts h idler na known, prays ezccuiicn coma-ponding with the judgment And here it is manifest, that if the execution issues, ii cannot be on this judgment, which is oct against the heir, but a third person, the os..cuter ; and aSf-cis t '.Vi personal, not the real assets of the deceased. Of consequence, the execution which the sci, fa, is to obtain, must issue upon some new judgment to be given on the sci, fa- capable oí affecting, and v/nich by the terms of it, will affect the heir in respect of the real assets, or the real assets themselves» That it is sq is proved by the act of 1789, ch. 30, made to amend the act of 173-i, which secures to the purchaser, lauds sold, aliened, or made over by the heir before action brought ugahist him. It the judgment on the sci, fa, is to have execution on all the lands descended, it will affect this purchaser p-r-of course there must be r judgment against the heir for the value, and an execution upon that, de bonis profriis — lt cannot be to have execution of the judgment against the executor, rIhon, although the heir is to shew cause why execution should not issue, yet if he does not anew cause, there is to be a judgment against him j and that judgment may or may not be against his lands, Ifit be said the act of 5 739, though amendatory of 1784, relates only to the action of debt, and not to the sci, fa, letting alone the express words contained in the title of the act of 1789 j I would ask, what motive could theflsgislaíure h ive for protecting a purchaser when the heir was sued in debt, and not protecting bina if sued by sci. fa, ? If it be said, it is because of the notoriety by judgment against the executor , the vendee should not have purchased ; I answer, the sale may have been before the judgment; and whynotthen protect him as well in casa of the sci, fa, as debt ? Besides, ii was idle for the legislature to do so j for if by judgment against an executor and & sci, fa, thereupon, all the lands descended, whether soM or not before that sci,f</, could be reported to by the creditor, would he not always adopt this inode ? Would he not always take care to get a judgment against the executor ? Of what use then was it for the legislature to cay, lands aliened before action, should be secured to the vendee, but not h> case of a sci, fa, >■ That is the same as if they bad said, he shall be secured and not secured. Such construction is not au-thorised by any thing in the act itself, and ends in an absurdity ; It is against the express words of the act of 1789. There is no doubt but it relates to the sci. fa, as wellas the action of debt, and proves that there is to be a judgment on the sci* fa. not an awrrd of execution only ors a judgment already giver,, Another proof is, that the defendant may plead to the sc , fa. and question the justice and amount of the judgment against the executor. If so, it cannot bind his lands nor himself $ for if he succeeds in proving -be judgmentin io"o, he will be discharged, if iopart *194be will be its?.fie liable for the residue only. How? by in &- f.culion on the judgment against the executor? What kind of an execution ? For fifty pounds when the judgment is for an hundred? That cannot be. I am apprized of the objection to this reasoning, it will be said the act of ITS-*, admits of pleading ; ¡tamely, that the executor lias assetsá or has wasted or concealed, and these pleas, if verified, do not cause a reversal or al-teratioh of the judgment, but only charge the executor with the payment thereof; so that the judgment, in truth, remains as it was, and that none but these pleas can be used by the heirs to avoid the effect of the judgment. The answer is, that there was a special reason for mentioning these pleas and no! others. They are mentioned where they are for the purpose of directing what should be done for the heir; on such finding he is discharged; and and by the former finding the executor is discharged. This act directs that the plaintiff shall have judgment against the executor,' Notwithstanding the former ñading and judgment. Had it not been for this direction the plaintiff could have recovered of neither. As to pleas which, if verified, operate to the repulsion of the demand of the plaintiff, there was no need to mention themg because in cuch case the plaintiff being entitled to recover neither against the executor nor the heir, there needed no distinctions, as in the case of these pleas that are mentioned. But surely there are other pleas which the heir may malte, besides those specified in the act. Suppose the executor pleads payment to a bond which in fact his testator never executed ; or suppose the bond was delivered as on escrow, or usurious, or otherwise planted its circumstances in the class of irrecoverable bonds; or suppose he has receipts of payments, and having no assets, cor likely to have any, will not plead or produce them j shall not the heir* be suffered to plead such matters in defence of the inheritance? Suppose the executor admits debts which the testator never off-nd, or which ere barrtd by the art of limitations; shall the heir be bound by his admissions, or not pleading the act? Suppose the debt paid by the heir and an acquittance given, shall he r.OC plead it? Or suppose he has been sued as heir in an action of debt, and paid the value of the lands descended. The heir might plead all these facts if sued in an action of debt; why not when sued in the sci.fa. ? why pat it in the power of an executor -to ruin the heir whenever he pleases ? as he certainly may if the, heir ran plead only the pleas mentioned in the act of !‘tS4. Every executor might become owner of the heir’s lands whentvtr1 he. pleased ; so might an administrator, by admitting cvidenct ft of the debt, to the necessary amount, selling the lands and becoming the purchaser, He certainly may plead whatever in law wile evince to the court that he is not liable to the plaintiff’s claim? and of course the judgment against the executor is only a eon-testable, not a conclusive evidence of debt as to him, the hair? *195and estops biro in no shape whatever; of course cannot be a lien upon his lands, and then they cannot be affected but by a ns wjudg-©ient-to be rendered on the sci.fa. When it is asserted that the ad. fa. is not influenced by the act of 1739 the consequence should be looked to, and looting to the consequences these questions present themselves* When the plaintiff has an award cf execution on the judgment against the executor, which execution is to be levied of th? lends descended, and thcf.fa. issues, shall it be in the common forra ? or shall it in "words relate to some period antecedent to its issuing ? If in the common form,,, then ii binds only the lands in the possession of the defendant rtf the time of ita issuing, in the like manner as it binds persona?, estate ; then what becomes of all the lands aliened before ? The plaintiff must lose benefit of them» To prevent this was the act, of 1789 made, a title more than three yearc from the passing of 1784. If the sci.fa. is really regulated only by the act of .1734>„ find ii it is to cause execution against the lands themselves ; and, if that execution is to be against the lands which the heir has when the execution awarded or issued, then it is ?, good plea to say he has no such lands when execution is claimed by the id* fa. But to. return to the subject 5 if they?. fa. is not to be in the common form, but to have relation back, by what law is its form, altered ? Giving it a retrospective force ? And if it is to have a retrospective operation, to what period does it relate ? Does it relate to the time of descent; Then be who holds by a fair purchase under the heir, without knowledge of any debt due from the ancestor to any person, shall lose his land ; when if the heir were sued by action of debt he should be protected. By the rule of the common law yet unaltered, unless by the act of 1789, the heir shall not be liable but in respect oí lands he held on the day of the writ issued against him, nor the purchaser for lands purchased before. Did 1784 alter this common l«w ? No 5 it lias said nothing of such alteration s shall we then without any law for the purpose, subject lands from, the day of the ancestor’s death Í Who, can even buy lands from an heir if this be law ? Twenty years hence he may be called upon by sci. fa. on a judgment against executors to give up the land for sale'; Shall the execution relate to the fime of. the judgment against the executor? — » Then lands sold before, are protected y those sold alterwards, mots this it ;;u arbitrary distinction, unless supported by some part oí the common or statute law,. The common law made the extendi facias against the heir, to relate only to the time of the action comxaenced against the heir. It is, not supported by the common law. The statute law makes no alteration in ihlsrtspect, unless 1789 is applicable to the sci.fa. Shall it relate to the time of the action against the heir by sci.fa. as the extendi did at the common law ? there is some colour lor saying this, but even this my be doubted of from the nature of the f.fcu If the tKccuW *196oñ ón the sci. fa. relates neither to the time of descent, rer té the time of the judgment against the executor, it relates, if at all, to the time of the date oi the sci.fa.- — and the inevitable con* elusion is, that when an heir is sued by sci.fa. the ohj. ct where* of is to have a sale oflands, if he has parted v/ith the lands dr* sicended before the date of the sci.fa. these lands cannot ha subjected, nor can the heir be subjected by sci.fa. if, as alledg-éd, the act of 1789 makes him liable; to the value in debt but not in the sci.fa. which is as .they nay in rem only, and not in per* ionam- But surely this consequence is not a legal one ; then the proposition it results from cannot he true; and then it is Wrong to say the act of 1789 only regulates the process in debt, and not in the sci.fa. it regulates both : and then it follows for the reason^ beldre -given, that on the sci.fa. there is not to be an award of execution of a former judgment, but a judgment deno-. ‘oo'i either for the value whete the heir is liable to that, or a-giinst the lands, if he, by pleading, makes that a proper one.1 — * Iíqw can the lands l>: botind by the judgment against the executor, when the heir may sell theiri at any time before the date of the sci. fa. $ How shall execution issue against the lands he held at the time of the judgment against the executor, when 5 purchaser afterwards, and befare the sci.fa. issued, has a title which cannot be affected b)7 such execution ? And when a judgment is given against thefcn, it is not to have execution, but according to the common law form, that the plaintiff recover so much, to. be levied of the lands descended to him, and in his possession on the day of the date of the sci.fa. If it be askt d when it ia proper to give the judgment against him 'de bonis pi o-priis;■ the answer is ready ! in all cases where the actof 1789 and the common law require it; that is for the value of lands aliened before action against the heir, and in all cases where he will not specify the assets descended by his plea. But our opponents say, the judgment is to be against the lands, and in ran ¿ and that the 4th section of the act of 1784, is a proof of it : for •upon two nihils returned, the judgment is to be aga.ir.st the real estafe in the hands, of such heirs or devisees. Admitting that we are to be governed by the letter, not the spirit of the clause, the execution if it miist go against the lands descended^ must also go against lands in the hands of the heir } and therefore if he hath sold, ali_ ened, or made over, before the day of awarding the execution, the terms of the execution will not reach them. Then we need not contend any longer, for our plea states we had not any lands by descent on the date of the sci.fa. — \t we had any before that time, we must have parted with them. This clause also says judgment shad be given ; our opponents say execution shall be answered. The letter of this clause suits them no better than it suits us; anti if ws vpgort to its spirit, it is this : there shall be the same judg-. m'e’nt'up*n two rjhik4 as upon sepvi.ee returned; and that ¿h%i>l. b0 *197ñu. eh 5! judgment as will subject his lands by descent, according 4.) the (Measure oí y that the síanc-íiug law sul jtcietl them io ; chat is to say, «ai such lands by descent as he had on the: day of the ii.iie of th- id. fa. or action «ig «i» v Irm, and then the judgment will be 1-. vkd oí bis goods and --attels,, and of the lands he h'i.i by chsc.-n*, on >he date of the t-ci. fa. just in the same-way as ia case of a j •■igment in debt. Boiler 105. Garth, 2J-5 ; or k will he io be laded of hie goods and chaiieh, lands-and iuit-Ments; in which case only the lands he had on the dav of the jU'lsiment will be bound. lu either case the clause in question will be as iff .dually com idled with as if the judgment should be fur the condemnation of the lands which came bv descent. The KasonS for giving judgment in this form are as strong here as in England. There it was necessary that the final judgment and process «[ton it should name the lands subject to the judgment, so as to leave nothing in the discretion of the officer, who under pretence of executing a judgment, either ignorantly or designedly, might disturb the rights of third persons : see the form of the judgment in Plow. 439. Now there if the wrong land be extended, the extent might be set aside ; but here if the sheriff he authorised by tb s execution awarded to sell ail the lands descended, or ell the lands he had at the time of the judgment against the executor, or all the lands descended ant? in-possession at the date of the sci.fa, great mischief may ensue 5 for if he is to sell all the lands descended, it may turn out that they are in possession of ?. bona fide purchaser; either from the heirorsoldto him by fi.fa. I,' *he sheniF must sell, the purchaser must be protected or none will purchase ; the purchaser who is in will have a good tide, for none will deny but that the heir may sell before judgment against thr ex-cútor, as they say, or before the date ot the sci.fa, — and the last purchaser will have a good title also, having purchased lauds of the description o¡ those ordered hy the execution io be sold. I would beg to enquire which of these two have the best title ; for between two good titles it is a point, I imagine, of some difficulty to determine which of them has the best. Suppose the judgment and execution to be leviable on all the lands, in posses .ion on the day of the judgment agsinst the executor. What if in the interim it has been sold by fi.fa. for the debt of the mi-1 cestor l there will be two owners both equally entitled. Suppose the direction be to sell all lands in possession on the day of the sci.fa. and they have been regularly sold since by fi.fa, or otherwise, the same inconvenience will arise. To ascertain therefore the very lands to be sold, and to specify them is more necessary here than in I£ngland; of course, means less rigid, to come at this end should not be adopted; but on the contrary, means e-qualsy, if not more efficacious : this can never be obtained by a jtulgm<-at in rent. What inducement has the heir to plead at all, T he ca»i-s‘-iT.., nothing by not pleading. If the defendant pleads *198nothing by descent and the fact is, that he has sold, let him answer the value by a judgment de bonis propriis. If he has assets, on the day of the sci.fa. and will not point them out, and therefore the court cannot specify them in the judgment, let him au-swer de bonis propriis. If when the sci.fa. is taken out he has assets not then sold, and he will delay by ¡jutting in a false ph-a, and in the interim the lands are sold, let him answer de bonis pro-pviis. ITo injustice in any one supposeabls case can be committed by a judgment de bonis propriis, where he will not poipt out the assets, But, much mischief may ensue if v/e fancifully abandon the well considered rules of the old law, and adopt others not mads by the plain directions of any modern act, not tried, nor their consequences known. There is not the least degree of utility in making the final result of a proceeding by sci.fa. different front the proceeding by action oí debt. The samé paca-sure of justice should be obtained whether the one coarse or th$ ocher be pursued. There is not a sentence in any law to the contrary. No pus chaser cc.u be injured, nor any difficulty arise wy means of a sale, before the teste of the Ji.fi, if the judgment is to be de borda propriis, and not against the lands nor can any difficulty arise from not shewing the assets in Jiis hands ai that day, if the judgment is not tobe tried dg. bonis propriis ; whereas if the sheriff is commanded to sell lands, generally he may seise mine for yours, or land legally sold, ■under an idea that it is not, or lands conveyed fey the ancestor, under an idea that the conveyance is invalid. To avoid the judgment de bonis propriis, the heir wiil shew the eertainty of hie, assets, and r.o discretion will he left in the officer, nor the power to commit mistakes to the disturbances of the title of third persons, and to the involving them in law suits.

If there is not to be an award of execution on the judgment against the executor, but a new judgment on the sci. ja. as is intimated and indeed expressed in 1784, ch. 11, ses. 4.- — Then-in case of a bad plea, or nq plea to the sci.fa. execution is not to issue for selling all the lands which came by descent; but a judgment de bonis propriis, ct detinis et tenementis, which judgment wiil affect all the lands he had by descent on the day of the elate of the sci. fa. as sotne hooks saj', and I believe correctly ; or at least, ail the lands, whether by descent or otherwise, which be had on the day of the judgment, rendered.-¡-r-And then it follows, that if the plea here pleaded by the defendant be not good, there cannot be a judgment against the lands ; but if good, to prevent the judgment de bonis propriis, Wc. it must be avoided by a sufficient replication ; one which wiU shew by the introduction of other matter, that the plaintiff is really entitled to judgment, notwithstanding by the plea it appears prima facie, that he is not entitled. The matter introduced by the replication. dues not shew this; for the heir is net at all events liable,. *199though be may have bid lands before the vrci. fa. issued : for still he may mot in ihe words of 1789, have aliened,-sold or nade nvirr the same before the sci. ja.

The replication admits what the counsel in support of it deny,, that the plea is good if demurred upon, and not replied to; and of course, the execution is not to be awarded on the sci fa. to affect .bads in possession, prior to the sci. ja. Why have they replied, lands before the sci.fi. if notwithstanding the plea, tbe_ lands spoken of in the replication, were liable without the aid of the replication ? If the judgment is to be in reía, and is to affect all the binds which cams by descent, or which come by descent, end were in possession of the heir on the day of the judgment against the executor. then caving, that he, the he;r, bad no land by descent on the day of the sci. fa. issued, is not a good plea, because it admits lands beforehand there should be a judgment nothwithstanding the plea. And indeed there is no utility in his pleading at all 5 for according to the opinion endeavored to be supported on the other side, if he fails to plead, the judgment is to be in rent, and cannot affect his other property ; if he has n<» assets then, execution will issue against the lauda he had by descent; and if none are found, it is nothing to the heir — the pursuit ends there: if be has cold the lands, and ke fails to plead, judgment they say, will be to have execution against the lands ; and thereby not pleading, he induces a judgment in , and escapes a replication, shewing the fact of his having sold, and raises a dispute between the purchaser and the creditor, or between the purchaser and the vendee under the execution. If the sci. fa. can only cause execution to issue on the; execution against the executor, what process will the plaintiff «sc to procure judgment for the value of the lands aliened, sold ¡'■¡ made over before that judgment? There is none provided f»y the act of IT'S-;*; and say they, the act of 178Q has no relation to the sci. fa. under 1784. They must resort to the action of debt, and that will afford ibera a remedy by relation of the judgment to its commencement, and by giving the value os the lands sold before ; but if the Kinds are really bound by law, and. liable front the time of process sues! out against the heir, and he himself for lands disposed of before, whv release him from:: part of his liability when sued by sci. fa. P That also should. suSüject him as far as his liability extended ; that is to say, for the value of lands disposed of at any time prior to its commencement, which cannot be done by a judgment against the red estate he had oa the day of the judgment against the executor. Wo know, that as the latv stood when the act of 1784 passed, lands were liable which the heir had on the day of process taken otic against him ; It is notv said they are also liable if m his possession when judgment is obtained against ¡lie executor ; and it is so because the act of 1784 speaks oí juiig.eietit against the red *200estate. That act says, in sec. 2, “ If judgment shall pass against ‘‘ the heir, &c. execution shall and .may issue against the rea} 41 estate, &c. in the hands of such heir j” and in-section 4, ^ Judg-merit shall be given against the real estate in the hands cl such “ heir.” At what time are these lands to be in his hands 2 Does it say at the time of the judgment against the executor 1 No. Lands in his hands at the tithe the judgment in tb esci.fa. is given. This rendered necessary the act oi 1789, ch. 28, s. 3. ' Admitting then m ils fullest extent the proposition laid down by our op-' portents, that the judgment in the sci.fa. is to be in rem, cr ior execution against the lands, there is no ground for saving that judgment of execution shall have relation so as to charge the lands id the hands of the heir on the day of the judgment against the executors. And then if the act ol 1789 be not amendatory of the proceedings on the sci.ja.' introduced by 1784, there cannot be any judgment upon the sci.fa. against other lauds than those he is in his possession of when called upon by the ici.yh. and then the plea in this case is a good one,' and will remain so until an act amendatory of the proceedings on the sci.fa. shall be passed, authorising a judgment in personam or de bonis propriis^ for the value of the lands sold before the date of the sci.fa. If the act of 1789 be amendatory of the proceedings on the sci.fa. the plea here pleaded is good, as it was at the common law, until it be shewn by the replication that he had lands by descent, which he aliened, sold or made aver before the date of the sci.fa. and in that case the judgmeni on the sci.fa. will nut be as they contend in rem, but de bonis propriis tenis et tenemen~ tis. Still more to counteract the idea oí a judgment in ran, let us suppose a judgment against the executor, and an action of debt against the heir on the same day ; and the creditor obtains judgment in the 'action of debt, the lands are bound by the latter judgment from the date of the writ: Wood’s Inst. 630. If then n sci.fa. issues, and it binds from the time of the judgment against the executor, what will be the constquence I The iaruls are bound to both creditors, and if one sells, the lands go bound into the hands of the purchaser.' Suppose lands in Virginia otr Maryland ; they are assets by the law ] rior to the act of 1784 $ but if execution can only be awarded against lands or in rem, the creditor will lose the benefit of (hese: 2 Vern. 358. 2 C. D. Chancery. 2 G. 1. 1 Vernon, 419. Latch. 234. - For these and milter reasons, I am forced to believe that there must be a new judgment upon the sci.ja. not against the land w hich the heir had at the time of the judgment against the executor, but against those he. had on the day of the date oí th esci.fa. U he will specify them by his plea ; and if he will not, then de bonis pro-priis tenis et tenementis, affecting all his lands, as wcil by other acquisitions as by descent; and that he is not liable for any lands He had'before the date' of the sci.fa. unless he is made so by a *201replication, stating his selling, aliening or making them over before the date of the sci.fa. and then that he is liable by a judgment toba levied de bmisprofiriis, fee. This doctrine will compel the heir to plead, and to shew and specify his assets, instead of letting judgment go by default against all the lands descended, to him, leaving it to the plaintiff to find them out as well as he Can, and disappointing him entirely where he can find none but suchas were sold by the heir, before such time as action upon them took place in his favor ; and instead of leaving it to the plaintiff and sheriff to decide whether such sales were valid or otherwise, and so to proceed as to disturb the titles or possessions of purchasers, and to render new law suits necessary for settling them. Calling the process directed by 1784, a sci.fa. together with the derivative idea of a sale of the lands, has occasioned the incorrect opinion, which lam now combating. — It was called a sci. fa. because it bad reference to a judgment > it was not called an action of debt, because the evidence of the debt was lodged in the office when the judgment was rendered against the executor ; for that is the practice in this country. The judgment is the gist and foundation of the action by sci. fa. : it is the evidence of the debt, instead of the original evidence so filed away. The sci. fa. recites the judgment as a declaration in '4ebt does the bond; like the bond it is evidence of a debt prima facie, but not conclusive evidence, as a judgment against the heir himself would be. In all other circumstances, except the name and the evidence of the debt, it is similar in all respects to debt; if not, the action of debt ought not any longer to be allowed of, for it is against reason, that a difference in the name of process should make a difference in the measure of justice, to be obtained when the cause of action is the same in the one case as the other.

Wood for the plaintiff.

It is contended in this case on the part of the plaintiff,

t ' That the proper and legal object of the sci. fa. in this oase, is to obtain ¡*n award of execution against the real estate of Thomas Wade, the elder, deceased, upon the judgment obtained in the suit against his executors.

:3d. That that judgment is a lien upon such real estate.

8cL That the pleas off the defendants do not traverse or avoid the lien, nor shew any sufficient cause why execution should not be mvarded.

Tfo.points shall be considered in their order. — And first, that the proper and legal object of the sci.fa. is to obtain an av«wd of execution, &c. This proposition is so obviously de-diuvíhV frow the words of the act of Assembly on this subject, ■(17? -,h. t ¿(1 that it would be deemed unnecessary to discuss it on the part of the plaintiff, were it not that the defendant’s counsel has in his argument, distinctly advanced a position directly *202the reverse of it; tha* is to say, that the proper judgment to .he given" for x plaintiff ir. such, case, is the same which is given in an action of debt against an'heir, viv. to recover out of assets, if he specifies them ? and do bonis propriis of the heir if he neglects to specify, or specifies falsely. On this position, the reasoning of the defendant’s counsel in no small measure depends; and from it he deduces the important concusión, that as the plea of no assets at the time of action brought, is good in action of debt, it must he so in sci.fa.

The most complete refutation of this doctrine, as well as the most direct proof of that advanced on that part oí the plaintiff, is to be found in the words of the act; which are,.u That in. all “ suits at law where the executors or administrators ol .any deceased person shall plead, fully administered, no assets, or not sufficient assets to satisfy the plaintiff’s demand, and such plea “ shall be found in favor of the defendant, the plaintiff may pro- “ ceed to ascertain his demand, and to sign judgment; but be- “ fore taking out execution against the real estate oj the deceased “ debtor, a writ or writs ot scire facias shail and may issue, “ summoning the respective heirs and devisees of such deceas- “ ed debtor, to shew cause why execution should not issue “ against the real estate for the amount of such judgment, or so “much thereof as there may not be personal assets to discharge j “ and if judgment shall pass against the heirs or devisees, or any M of them, execution shall and may issue against the real essate of “ the deceased debtor, in the hands of such heirs or devisees,, “ against whom judgment shall,be given as aforesaid.” If the sc Words will admit of any construction, or need any explanation, such construction and explanation will be found in a subsequent section of the same act, which directs, “ 1 hat when the heirs and devisees of any deceased debtor, or any of them, shall re- “ side out of the state, so that writs of scire facias cannot be sc served on them, and shall have no guardians on which the same “ can be executed, then and in that case, the sheriff shall return iC the fact to be so, and another scire facias shall issue ; on which “ the same return shall he made if the parties continue to rtside “ without the limits of this state — on which second return, and “ likewise on every second return, that the party or parlies have “ been summoned, and no appearance shall be made upon such “ summons, judgment shall be given against the real estate in “ the hands of such heirs or devisees.” Here the act authorises a judgment when the heir resides out of the state, and can have no personal notice, which judgment, if it were to be as the defendant’s counsel coutends, it ought to he, against his general property and person, would be as unjust and repugnant to every principle of English jurisprudence, as it is reasonable thar the la,¡d of a deceased debtor should be liable for his debts, not-vilwistandiag the non-residence, of the heir. — But what seems *203-to be conclusive on this point is, that in the precise esse m which, according to the doctrine of the defendant’s counsel, judgment would be de bonispr opr its of the heir, to wit, his being summoned and making default, the act declares it shall be against the recti estate of the deceased debtor. But it is objected by the defendant’s counsel, that-execution cannot be awarded against the lands upon the judgment against the executor, became that judgment is against the personal estate, not against lands which are not within the words oi it; and therefore there mast be a new judgment to recover, &c.~ — And itnpáyalso be remarked that the act of Assembly speaks of “ Judgment passing against the heirs or devisees 5” and directs that u Judgment shall be against th.e real estate,” 8?c, as if a new judgment were' to be given different from a mere award of execution. To reconcile these expressions in the act, with the doctrine of the plaintiff’s counsel, that the object of the proceedings is a mere award of execution, it will be sufficient to observe, that if an, award of execution be not according to strict legal definition, a judgment, it is frequently termed 0.0 by the most approved writers.

When., therefore, the legislature was speaking of the final de-ci-son of the court upon a set. fa. the object and prayer of which ' are to obtain execution, it might without impropriety or ambiguity, call that decision a judgment. But the meaning of the legislature with respect to the nature of the decision to be given, by whatever name it may be called, is not left to be collected,' by construction j it is, unequivocally expressed in the plainest ’ terms, A judgment is to be signed, but “ before taking out' “ exscutioa against the real estate,” scire facias is to issue, sum-snoning the respective heirs, ike. to shew cause “ why execution:' should not issue against th.e real estate for the amount of such judg~ snentf &c„ The thing then proposed to be done, and against which, the heir is to be warned to shew cause, is. to issue execu- " tion against the real estate, for the am.ountof such judgment, vizi the judgment signed in the suit against the executory and not; as the defendant’s counsel contends, to render “ a. new judgment to recover,” &c.

Again : This objection of the defendant’s counsel, as well e£ much of his reasoning on other points, is founded entirely «port -the supposition, that the judgment which,the act authorises the creditor, to sign, is the common judgment against an executor?. to wit, to recover out of assets now in the executor’s hands, or' out of those which are hereafter to come to his.hands. But what makes such a supposition necessary or even proper,? The act authorises, the plaintiff, to sign a judgment, without prescribing the words, pr form of it, but particularly prescribing its purpose • and effect. It is presumed that the words of a judgment ought 6» be expressive of its effect -K and. when a new effect is prescribe *204ed, a new and correspondent form ought to be adopted. Upon this principle, the judgment directed;in this case to be signed, would be, to recover nisi out of the real estate, and not as the objection supposes, out of personal assets : Ant? indeed it is scarcely to be conceived that the legislature would direct the., plaintiff to sign a judgment of assets in the hands of the executor,., upon that verdict which has just pronounced that he has none ; or of personal assets hereafter to come to the executor’s hands, when the avowed object of signing the judgment is to obtain execution for the “amount” thereof against the real estate. If it. should be objected that no such judgment is actually signed in the present case j it may be answered that the sci.Ja. sets forth-that a judgment was recovered upon the proper finding of the jury in an action against the executor, without professing to re-: cite the words of it_The pleas of the defendants admit such. judgment and finding of the jury, and the court will suppose the ■ judgment to be in the proper form. But let it be conceded for. the sake of the argument,, that the proper judgment to be signed ■ in such a case, is in the words and form supposed by the de-. fendant’s counsel. — still the effect of it is pointed out by the legislature ; and it is absurd to contend that it cannot have this effect, because of its unappropriate form. This is to invert the legitimate order of reasoning, and to make the substance depend on the shadow.

Secondly — The judgment signed in the suit against the executor, is a lien upon the real estate. This is deductible from several considerations : 1st — The legislature has given a scire facias, upon that judgment, quart executioneai non against the lands. A scirefacias is a writ issuing upon matter of record, which is sup.posnd to bind the person or thing against which it is directed. In giving therefore, a scire facias upon that judgment, and making the object or prayer of she sci.fa. an'execution against the land, the legislature has virtually declared that the land is bound by the judgment. &d — The practice which has universally prevailed under the act, is a strong evidence of the correctness of this exposition of it. The sci.fa. begins by reciting the judgment against the executor, and concludes by praying execution of it against the lands. This would be absurd if the lands were not bound by the judgment, or liable to such execution.- — . The defendant also, if he has a defence to make, offers it by plea, which often brings upon him a troublesome and expensive process of evidence, that surely might and would be avoided b.y demurrer to the sci.fa. if, in the language of the defendant’s counsel, neither the heirs nor bis lands are bound by the judgment and one is at a loss to discover the motive of the defendant’s counsel for making any other answer in this case, if he had any confidence in that principle.

Thirdly-* — The amendment of $13 act passed in 1789, ch. $7, *205sec. 3, which is to be considered as part of the same act, and is admitted to extend to sci.jh. as well as action of debt; p*--vides that lands aliened before .action brought, shall not be liable to such execution in the hands ©f a bona fide purchaser ; which strongly implies, that before the amendment, they were liable even in the hands of a bona fide purchaser before action brought. This position, however, that the judgment against the executor contains a lien upon the lands, is strenuously and learnedly controverted by the defendant’s counsel, 'whose reasoning on that head will be here examined.

It is objected, that the judgment is against the executor, not the heir; affects personal estate, not lands ; binds nothing,which is not assets in the hands of the executors, and lands are not such assets. This objection has been anticipated in the discussion of the preceding point, to which it v/as meant to apply equally with the present. It was there remarked that it is wholly founded upon a supposition neither necessary nor admissible, and is in fact an attempt to defeat the positve provisions of a statute by a nacre verbal criticism.

Another objection, if it be rightly comprehended, is, that ‘c it has been determined in our courts that u no execution upon a judgment against an executor can bind ur be levied on lands.’5 This assertion must be qualified before it can be admitted. Ie is believed that it has only been determined, that no execution, can issue against lands upon such judgment without sci.fia. It cannot be conceived that it has been decided that ao execution whatever can bind or be levied” upon the lands. Such a decision would illy comport with the words of the statute, w that execution shall and may issue against the real estate,” Src. But it does not follow that because execution cannot issue against the lands upon such judgment without sci.fia. to the heir, the lands are not bound. Many cases may be put in which judgments do bind and yet no execution on them can issue without new process. A recognizance binds the lands of the cognizor from the time of the recognizance ; a judgment against the ancestor, binds his lands, in the hands of his heir; and a judgment which has been dormant a year and a day binds the lands of the defendant: Yec in none of these cases can execution regularly issue without sci. fa. And indeed with regard to the objection these cases are exactly'similar to the present.

Again, it is objected to the position which the plaintiff is endeavoring to maintain, that the heir can “ plead and question the judgment,” which is considered as “ another proof that the judgment cannot bind him or his lands.” This objection stands on the assumed principle that a thing which can be questioned by plea contains no lien j a principle which cannot be admitted nor as it is believed supported. The balance due to a factor is a lieu upon the merchant’s goods in his possession and yet this balance *206is contestable : and the same may Hs . aid of all bens ar;«’> -g out of matters in pais. — And if matters of ice-wtei are not t «piatly o-peo to examination it certainly is not to. that circumstance of difference that theiien contained in them is-.to be attributed. A farther source of objection and argument with the defendant5» counsel, eq.uslly applicable to the two first propositions, advanced on the part.of the plaintiff is, the absurd,’des with which they arfe supposed to .be pregnant. It-is srid “ that great mischiefs will ensue if execution is awarded to sell all the lauds descended ; or that were in possession at the time of judgment against executor:; ot at the time of sci.fa.n■ If to sell “ all the lands descended, they ¡nay he in possession of a purchaser before action brought, under f-fa.n “ A; id if the sheriff be commanded to sell, the purchaser .must be protected or none will purchase ; both purchasers will therefore have good titles.” “ If to sell those in possession at the time of judgment against executor, they may have been sold in the interim under fifa. for the ancestor's debt.” “ If all those in possession at the time of sci.Ja. and they have been.sold by ji-f't. the same inconsistencies will ensue.” The fallacy of ■filis argument is conceived to be in assuming the principle, that, wherever the sheriff is commanded to sell, the purchaser must be protected, or in other words must acquire a good tide. This principle it is believed is not correct, and that with respect to the title or Interest of any person not a party to the suit, the maxim caveat emptor, applies to such a purchaser as well as to one of any other description. If.ifce heir sell the land descended, to a bona fule purchaser before action brought, and afterwards to an action of debt upon .the bond of the ancestor, specifying the same lands as assets, the plaintiff may have judgment and execution agajnsi, ’hem, and yet the purchaser cannot be protected. If the heir in xaion of debt, should point out .as assets,descended lands belonging to another, and to which the ancestor never had any claim ; the plaintiff upon such plea, may have judgment and execution a gainst.such lands, and yet the purchaser will have no title.- — . The truth seems to be that a thing may contain a lien to some purposes, and to a certain extent, and oot to all. A ferifacia-ls a lien upon the defendant’s goods, but it is only against the defendant’s own acts. If they are sold upon -one execution, and afterwards upon another, the purchasers under both.-cannot have good titles, although both writs are liens to certain intents. Jf there be two judgments against the heir inactions of debt, they both hind the assets descended; but that in widen the process first issued shall.be first satisfied: Bac. Abr. Tit. Heir, letter la other words, the second judgment,in priority is a lien to all purposes except against ihe-.first.

So a judgment in a suit against ,an exeeutor, altheugh it may not contain a lien paramount to all others^ and to the destruction of all adveme nuer-cr-tó, jsaay, and undoubtedly-does, contain os©. *207-■''■íSílcnt-ío-warrant an execution against the real c.jiate- of the d-ceased debtor in the-haods-of those who being made parties to -s vci-. fa. div'.not shew good cause to the. con’rary; or, in- cihet words* d-> not sR-w forth some interest paramount the lien.

• Thirdly ; the pleas of the defendant do not traverse or avoid -the lien, nor shew any sufficient cause why execution should be ■awarded. To the plea of Mrs. Prom, the devisee, there are two objections, .1st. That it isra .plea, in discharge or protection of -her general property, and not in-bar of execution against the lands devised. 2d. If it may be considered as a plea in bar oí execution it decs;not refer to- the commencement of tne lien. Tbit it is a plea in discharge.-or protection of her general property is •evident- from this, that- it is peculiarly (if not solely) appropriate to the action of debt against'an heir upon the bond of his ancestor,- in which the debt is considered and demanded as the proper debt of the heir, and the general judgment is de bonis prop/Us. But in sci.Ja. ■quare execuiietmn non, no plea is necessary to protect the goods of the heir, as no neglect to plead, or false plead» Ing can subject them ; Bao. Abr. The broad and unqualified position taken by the 'defendant’s counsel, that “ at; common law nothing by descent on the day of issuing writ, is. s,‘ agood plea to protect the heir,” and the numerous authorities to which he refers are peculiarly applicable to action of debt. But if the plea be considered asín bar of execution, it ought to relate to the commencement of the lien upon the lands in the hands of the defendant. Why in action of debt does the plea relate to the time of action brought? Because that is the commencement of the lien. And if the position of the plaintiff, that the lien iri this case arises from the judgment, in the suit against the executor, and not from the process against the devisee, be correct,-thu defendant’s plea'of no assets at the issuing of process is as vicious as would be the plea of the heir in action of debt that he had nothing at the time of pleading. One difficulty here occurs, which however is not relied upon nor suggested by the defendant’s counsel; probably because it was deemed unsubstantial j for his professional talents and erudition, as well as the care be appears to have bestowed upon this cause, forbid the supposition that it was overlooked. The difficulty alluded to is this : the act of Assembly directs dust execution shall issue against the're. 1 estate in the hands of the heir or devisee ; and from the record in this cause it appears that there is none in the hands of the de-visee. There seems, therefore, at first thought to be an absurdity in awarding execution against lands in the hands of defendant which appear not to be there, But this absurdity will, it is believed, upon a closer examination, greatly diminish, if not altogether vanish. It is conceived that nothing more is intended by the words “in the hands of the heir,” th.-.a what is implied bt-a judgment agamst assets in acumi of debt. In *.k.st case the; *208assets against which judgment is rendered, are presumed to be in the hands of lbs heir ; for it is upon the presumption of his having assets that he is chargeable ; 1 P. V/. T77. But it is no objection to such a judgment, that he is neither in actual possession nor the actual owner of the lands at the time of judgment; for if the heir plead that he has aliened the lands pending the writ, they are notwithstanding liable, and execution will be awarded a* gainst them; Bac. Ab. Tit. Heir, F» If the pleadings shew, admit, or imply that the lands were in possession of the heir at or-after the time of the lien attaching upon them, they are presumed to remain there until it is shewn that they have been legally disposed of. If in sci. fa. upon judgment against executor, the heir should plead that he had aliened the lands mala fide pending the writ 5 or had aliened them since the last continuance, it is scarcely conceivable that such plea would be a bar to execution against them. And it is presumable, that the law will as much consider the lands in the possession of the heir for the purpose of awarding execution against them when his plea admits to shew a case for their exemption, as if it should shew one in which they are expressly made liable.

With respect to the. plea of the terretenant, it is obvious that' it contains no answer to the sci. fa. — *-it barely denies a lien, not set up nor hinted at by the plaintiff. By not questioning, it is presumed to adroit the regularity and justice of the judgment against the executor ; and by not denying, it is supposed also to admit the allegation in the sci. fa. that Thomas Wade, the debtor, died seized of the lands, and devised them to his four children. These are therefore the very lands or “ real estate” against which the law says execution shall and may issue; unless they have been hona f.de aliened before action brought. If they have been so aliehed, or if the defendant has any title or interest which exempts them from execution, his plea ought to shew it. Will it be contended that the lands cf which a debtor died seized, and which descend to bis hair, cannot be liable .in the hands of a ter-reteuant, except they have been bound by a judgment against ths debtor in his life time? They may be aliened mala fide and fraudulendv; they may be aliened after action brought, and evert after the heir has by plea admitted and specified them as asseis< And yet the terretenant may plead as in the present case, that they were never bound by any judgment against the debtor in his life time. This principle would be at variance with another which forms the basis of the argument of defendants counsel, viz; that the proceedings in sci. fa. a>e similar in effect to those in action of debt in which lands descended are bound from the issuing of process against the heir, even in the hands of the terretenant, notwithstanding no judgment has been rendered against the ancestor in his life time. And it is very strongly to be suspected, that the defendant’s title is kept out of sight not so much from. *209th«? confidence of bis counsil in the principles upon which tins defence is placed, as írom a conMdcraúoti that the title is tee grossly iraiidideni to bi-.'.r examination.»

' It :us beca understood by tiic plamuís 5s counsel, that a difference of opinion has prevailed amouger practitioiius in the state, on the subject of making x terretenaut a paiiy in idrefecias, Uj>wn a judgment agamst executor ; some holding it unnecessary , a,id others indispensable to'join loom. Although it is humbly conceived that at this stage of die cause, si.d upon the case before the court, no 'I'tesfioti can arise wiih ivspcet to the joinder of parties ; and that with repaid to the. tern tenant, the proper qu-. stion is Our, whether he has been properly cr improperly in ule a paay, but whether he has shewn that the lands in his pcs-iüssion are not liable j Xet ns tbs point may present itself, a few observations on it will be submitted. By the law of Erg. land, there ace two modes of proceeding to obtain satisfaction of a debt due by a deceased debtor, out of his lands *. The ene by scire facias, against the. terrctensnis ; the other by action of debt against the heir. The former is adapted to the case of an. obligation by matter of record ; the latter to that of one is pah* Li the former, the proceedings are directed against the land it= self j ia the latter, they are directed against the general property of the heir. The great leading principle in the argument or the defendant’s counsel, is, that the proceedings directed by the act of 17o4, ch. 11, are analogous to those upon action of debt 5 whilst it is endeavored to be maintained on the paitofthe plaintiff, that they have .1 much greater, and indeed a very close analogy to those in sci.fi. If the doctrine of the plaintiff be correct, it is conceived that it cannot be improper to make the ten t= tenant parry. In id. fa. upon judgment against the ancestor, although it is necessary, for certain reasons, to make the heir paity as heir, yet judgment is given against him as terretem.ru ¿ or in the equivalent language oi our statute, “ execution” is’di-aected “ to issue against the real eiatale in his hands.” — Andas the proceedings are against the land, specifically, those in whose hands it is to be effected, or the terretenants must be cited. So our statute seems to consider the heir and devisee as ture» tenams, and judgment is directed to be given against them in that characto — that is to say, execution is to be awarded against the land itself. And asín both cases the pioettdings are equally directed against the land specifically, there seems to be equal propriety in making the terretenants parties in both.

Haywood in reply.

My worthy friend argues that judgment 5s to be against the lands, because it is repugnant to evtiy prin-cipie of English jurisprudence, to subject the genual property and person of the heir, upon two nihiis returned to a i.ci.j'L.--therciore the legislatuse did not nuan it. Í ben- leave to ark wan: is rise seniequer.ee ’ In England the he::: its cutd bn.it. *210action of debí to Kuüawrv. 3 Adi. 345, 356, 2 Atk. 23, Wljf inform us. The plaintiff’s demand is satisfied by virtue of a warrant from the exchequer out of his estate. TworaiAi&a-gainst an executor, being equal to service, will subject him de ignis fropriis : 2 Stra, 10/5. Why not also the heir at law ?

Again : He argues that the act declares in this very case of a default by the heir, that judgment shall be against the real estate. It does not say lands which he Lad by descent on the day of the judgment against the executor: and are these to be considered as lands in his hands, which having conveyed before the date of the sci. fa. belong to the purchaser ? and are secured to him by the express words of 1/89, ch. 39, sec. 3 “ The lands bona fide, aliened before the action brought, shall not be liable,” ike. If they are not so considered, then only those lands are liable 'which he had at the day of the sci. fa. and here the plea says he had none on that day : and then the sci. fa. if it be in rem, is not a fit remedy for the case of lands disposed of before the date of the sci. fa. But the truth is, that the judgment to be levied of the goods and chattels, lands and tenements of the heir, is as much a judgment against the real estate, as one condemning the lands which come to him by descent. It is admitted that an. award of execution is not strictly speaking, a judgment; and that the act speaks of a judgment to be given on the sci. fa. but, say they, it is frequently termed so by the mostapproved authors. Why shall the legislature be understood in an untechnical sense, when they use a technical term ? We are called upon to give an. unusual meaning to a word well understood, for the purpose of proving the most uncommon position ; namely, that one man’s property is bound by a judgment against another: if a new judgment is to be given, the supposition that the lands are bound by the former judgment, is at an end.

The act, say they, directs a sci. fa. for the heir to shew cause why execution should not issue against the real estate. Answer: it also says, if judgment shall pass, &c. execution shall issue, &c. Execution is not to issue until the new judgment be passed ; and that will never be if the heir can shew the plaintiff’s demand to be unjust, or the executor has assets. The amount may be diminished, or he may prove some part of the demand unfounded. This demand, evidenced by the judgment, is justas unsettled, and open to examination, so far as the heir is concerned as the original evidence on which it is founded. And why is the creditor entitled to execution upon one more than the other?

The judgment against the executors, it is said, is not that which was the proper one before the act of 1/84, but one correspondent to the effect it is to produce. One effect is to have execution of the proper goods of the executor, if the heir proves assets in his hands: And can such execution issue on a judgment against the lands nisi? Again- — first prove that the effect' *211 h to bind the real estate ; and I will agree that the judgment shall he correspondent thereto. They say, how can a judgment be signed against an executor, to be satisfied out oi persons! estate, when the jury fiad he b.ts none ? Answer — The judgment is.described to be signed for two reasons: first — -that the executor might be concluded as to the amount: secondly — that he might be subjected to that amount de bonis prcpriis, should the heir prove assets in his hands. The judgment ought to he <¡ntertd., notwithstanding such finding; ior otherwise on proof of assets by the heir, the creditor must begin de novo, or perhaps, would be barred by the former suit; for they say, as to the ex> «cuto?, the judgment must be calende sine die. When there ans such plain reasons for the direction to siga judgment, nr.ust we say it was for the purpose of binding the real estate? Ic-is argued that if the jugdment against the executor is to be according to thcfonu whisih was in use before the act of 1784, still the effect is pointed out. 1 would ask what effect ? If they say that of binding the real estate, I answer, whether that be so or not, is n.ot yet ascertained. The sci.fa. it is said, u is to shew cause why execution should not go against the real estate ; and that proves the lands are bound by the judgmentI answer, about as much as leading- process in the action of debt 5 the object and •effect of which is to have execution against the real estate, like the sci.fa. after judgment,

It is dmanded, why if neither the heir nor his fends are bound,, do not defendants demur to the sci.fa. ? For this reasons that there would be judgment against tne heir, to be levied of hip goods, and chattels, lands and tenements.

They say, that the act of 1789, which is amendatory of lfS4, provides that lands aliened before action brought, shall not be liable to the execution ; which is a prooi th.;t it was so liable he. lore the act of 1789, and under the act of 1784. — The answer fe? that ithe clause to which this proviso is attached, says the heir ekall be liable for lands sold, See. before action against him s will 3101; rbe. same mode of drawing inferences lead to this, that he was not liable at all under 1784 ? The law was so before 1784, and Shis is a recognition that it continued so- afterwards 5 and consequently that such lands were not afectable by sci.fa. tints! the act of 1789- provided for it. Besides, their inference is too large, for it takes in land sold before the judgment against toe executors — and yet they do not mean to say that such lands were bound by the judgment w.as this land subject under 1784? If not, protecting it from execution by 1789, is no proof that it was liable by 1784 : and if na proof as to these lands, neither felt as to those soli after the judgment, and before the sci.fa.

It has been decided in our courts, in the case of Baker and Webb, (see May. Rep. 171) that lands cannot be affected by a judgment against an executor. The case arose before, the aofc *212of 1784. It proves, however, what the law was up to 1Í"S4< j and it i-i for m.y worthy friend to shew that the act.of 1784 imparted different < ffects to die judgment in the sei. fa. under that act. He argues, that judgments bind lands in many rases where no execution ranis-me; therefore, though no execution ran issue upon tlv-judgment against the executor, it may be that the judgment binds the lands. I answer, it may he ; but they have to prove it tealiy is so. Further ; can any instance be produced oía judgment originally not capable of execution, which hound 5tnds ? It is because they may be. seized by execution, that they are appreciated to its satisfaction. A recognizance, judgment ~ gainst the ancestor, and a dormant judgment, are all of them to he executed bv a writ of t xecudon without fiuther procesr, unless for come hucrvtning circumstance which renders new process neces°ary. it is not r.o of a judgment against the executor, which, so far fiom having a capacity to be executed by the heir, may be, averred against in any shape where an averment would be available against the original demand.

it is argued, tha! though the judgment is contestable and in-i conclusive as to the heir, yet it may contain alien against his lands, because a balance due to a factor, is a Men upon the mer-f ham’s goods in his possession, and yet the balance is contestable. The. ansvn-r is- — a contract express or implied, sustains the Sien, and enables him to retain ftr- whatever may be due ; but property is bound by a judgment because the law ordains it; and it does so because the party bound by the judgment has been undeniably convicted of record of owing the debt: It is proper then to lay hold of his goods and lands, that they be not withdrawn from the satisfaction of a debt proved to be due- by the highest evidence. Is k equally proper to lav hold of it and 5iind it, because the plaintiff says, and perhaps very untruly, that tile heir is* indebted to him, and exhibits against him the judgment obtained against the executor, which is f equally contestable as a bond or note, or open account? And all this merely because a factor has a lien or. the unascertained balance in bis hands. T call upon them for a case where lands have been bound by judgment, when the parly whose lands were so bound, was not concluded by the judgment. They say the law cares not for the' purchaser under its execution, and holds up the maxim, caveat anptor. I answer; security, quiet and repose, are its grand objects : and will the law sell lands to A, which are already legally sold to B ? To say that it will, and that the purchasei must, take care, is to say we invite persons to give their money to the plaintiff for property which they cannot hold. Which is best, to make the heir pay the value in such case, or to let him go dear, and to make an innocent purchaser pay the debt for him, su-d get nothing but a law suit for his pains i And suppose every person would take care, and, not plunge into the quicksands,. *213“dúch the hvsv, with the assir.iar.ee of tnv worthy friend’:: rnbtlc-tv, has prepays d for their tr.gulphmeot; then no sale woukl taha place ; and must the court do a vain thin" in expectation that iha occurrence ot a wicked ore will give it effect ?

:f the heir, s:n cvr o-.p-nents, specify as assets, lands which he h.-.r. held, the plaintiff shall have judgment and execudun a-yp-iast them", no, the pUmuff must reply the rale, and v ill hav.t-judgmvnt "or the value ; if he take judgment upon such plea, it is his out* fault; be will never be able to sell his lands, and will lose his debt. So if lands pointed out by thu plea which never belonged to him, the plaintiff will sav you had not these lands by •bsc.-m, but others ; and for bis fa’se plea there will be judgment: dc bonis proprih. Will the heir run such a rbqu^ ? What they argue is, that the plaintiff is ob!ig< d to take judgment against the lauds aliened, and is to lose his debt or to procure a purchaser who must of course lose what he purchases. It is the plaintiff’s own fault if in the cases last put, he takes judgment against the lands pointed out by ihe plea.-

The plea of Mrs. Prout is not good they say, because in protection of iter general properly, not of the lands descended, lh> doubt the plea is bad if the judgment on the sci. fa. Ire in rex?, and lias relation t<> the judgment against the executor; but it in as certainly good if she is personally bound for the lands aliened §:c. before the date of the sci. fa.

As to the sci. fa. mentioned in Ba. Ab, Heir H. no argument van be drawn from thence applicable to a sci.fa. under the act of i'/84 ; for there the heir is sued as terretenant; but under the act of 1VC4, as heir, a terretenant is one who bolds lands bound by a judgment; to have them subjected to execution is all he can. suffer: not so of an heir ; he may Buffer a judgmentrfe bonis pro~ priis for not pleading. Let it be proved that the judgment against the executor binds the lands of the heir, and that he is sued as a terretenant, and we will admit the analogy between a sci. fa. on a. judgment against the ancestor, and one on the judgment ¿¡gainst the executor, A terretenant is concluded and hound by a judgment; he cannot deny its justice, nor question its impropriety: not so of an heir sued by sci.fa. under the act of 1784. There are several instances mentioned in the acts of if 84 and ¡789, where manifestly the judgment on the sci.fa« is intended to be a judgment in personam ; which can in no instance he caid of a sci.fa. against a terretenant. If the lands be sold before the sci.fa. or if sold by the guardian, under 1789, sec. S', lt the proceeds of such sales shall be considered as assets fkc. in ,c like manner as assets in the hands of an executor after sci.fa. “ is by the act (1784) directed.” Will a judgment in rem in this sci. fa. ever reach these assets? And yet they are to be reached by it; first, by a judgment against the guardian, and if he will JV't pay st, by a judgment against him de bonhpropriis. We ad*214mit the plea is not good, if it be a plea in bar of execution, ar¡<2 if such execution relates to the judgment against the executor» But I am not yet convinced, and therefore do not yield to that position. It is a good plea, even if the judgment be against the lands, and relate only to the date of the sci.fa. — if they are affected, only from the time of the judgment; it is only bad i,f the judgment be in rem, and relate to the judgment against this-, executor. Stir, also good if the proper judgment be de honis fir-cn. priis, &c.- — !-for lands sold before the sci.fa. or in other words, if the heir, as at common law, he exempt from any judgment if he has no. lands when the sci.fa. issues, unless he shews some pnder the act which the heir had before, and which he sold.-- “ Judgment against the real estate in. the h&ids of the heir f this, phrase,'says he, means what is implied in a judgment against,as-, sets in an action of a debt against the heir. X rather thinkdts., meaning is, similar to that of assets in the hands of an executor »*. and there it signifies ao.y assets he had on the day of the vser-it ta-. ken out against him, or after. A.ssets in the ha.nds- of an heir-sued in, an action of debt, mean assets which he had on the day of the writ sued out against him, or since. Again, if it means-, what is implied in a judgment against assets in an action of debt against the heir; that is to be a judgment to be levied of. the lands specified in his plea, and is always predicated qf lands in., the heirs possession on the day of issuing the writ. Real.estate . in the hands of the heir either means at the time of, the judgment on the sci.fa. or when it issued. If, say they, the pleadings admit lands in possession at or after the time of the lien attach-, ing upon them, they are presumed to remain there. I subscribe to this position, but if not admitted to be in his hands when the lien, attached, then they are not presumed to remain, there :• and here the lien attaches from the date of the sci.fa. -ind at that time the pie?, says there were not any lands in the. hands of the heir. They say if the heir plead an alienation malafde since the last; continuance, it would be no bar, and IC; agree t,o it: but if it appear he has no lands, and it do not also appear that h.e sold mala fide, or pending the action, it wili.be a bar.

I shall say but little as to the argument about the plea of the ter-retenant: no matter what his plea is, if the sci. fa. do not state a, case adequate to the subjection of his. lands ; and they do not shew such a case, unless the sci.fa. state that the lauds came bound into his hands. Here the sci.fa. does not even state that the terretenants acquired the lands after the judgment against the executor. If he purchased before the lien upon them attached. that is, as we say, before the date of the seffa. — and, as they say, before the judgment against the executor,' then the heir is to pay the value and the purchaser to be protected.»— The $ci. fa. ■ ik.*.a should at least shew an alienation after the *215•lien comraettced ; that brings ns to the main question when it commenced. Curia adStsari.

The couit ordered this cause to be transferred to the court of Conference, where Haywood, in the absence oi JJ'bct/, argued as before; and the court took time to advise,,