HALIFAX,

APRIL TERM, 1794.

#### Den on dem. of Blake Baker v. Webb.

Per Macay, Judge. — The statute 5th *George 2d, eh.*7, provides for the sale of land for debts, and the m ilting1 them liable for all just debts in the hands of the heir, but does not alter the distinction between real and personal estate ; real descends to the heirs, personal goes to the executorsthe lands in hands of the heirs cannot be affected by a judgment against the executors, no more than the personal estate in the hands of the executors, can be affected by a judgment against the heirs. But per Asas, Judge. — The statute meant to make lands liable to the payment of debts ; and as to the payment of debis, are tobe proceeded against as personal chattels. ■They descend to the heir chargeable with all such debts as may be recovered against the executors. 'Williams, Judge, on a previous case expressed an opinion similar to Macay’s.

If a deed be lost and its rormer existence proved, a copy, and if no copy, parol evidence may be given of its contents.

This was an action of trespass in ejectment, wherein the Plaintiff deduced his tille as follows: 'Phis land was granted the 2d day of April, 1741, by the Earl Gran-ville to Benjamin M’Kinnic ; by him the 17th October, 1745, to William Kinchen ; by him the 19th October,, 1746, to David Hopper; by bins the 12'h September, 1747, to one Carter; the Sd September, 1760, it was conveyed by one Hays to Dewey, which recites a deed from Carter to Hays; by Dewey to Smart, the 14th February, 1765; by Stuart to Joseph Long, the 20th July, 1768: and by Long to Biake Baker, the elder, the 16th December, 1768; which Biake Baker, the elder, was the father of the lessor of the Plaintiff, to whom the Plaintiff is heir at law ; and the said Blake Baker the elder, was possessed, and'died possessed in 1769. It was farther proven on the part of the Plaintiff, that Carter was in possession for seven years and upwards, and also that after his possession, the said Hays was in possession for a great length of time before he sold to Dewey, and used the land by getting timber off it: that Dewey was possessed two or theee years, and that Long was possessed for some time; and that during the time of Hat’s po-session, Carter fr equently declared that ire had Conveyed it to Hays. Tire Defendant, on his part set up a title as follows : That one James M’Neil obtained a judgment for debt and costs, against the executors of Blake Baker, the elder, and took out execution thereon, tested in April, 1772 ; which execution commanded the Sheriff, that lie should levy of the goods and chatt. Is, lands and tenements in the hands of the, executors,.&o. *56And that by virtue thereof the Sheriff sold the lands in question, and -executed a deed for the same, bearing date the 22d February, 1773, to Joseph Moritfort, who by his will devised that his executors should sell; who sold accordingly to one Wilburn, who sold to J. Webb, who died leaving the Defendant his heir at law. The judgment was obtained in April, 1772, and two pleas had bepn pleaded by the executors, to-wit, *plene administra-ba*and *non assumpsit,*and the jury gave their verdict upon the'other plea only, and there vas a suggestion on record that there were lands, &c. The deed to Montfort, when produced, described the land *thus*— “ Known by the name of Hays, formerly given by James Carter fo James Hays.”

*Maywood,*for file Plaintiff.

It is a rule of law well established, that in ejectment, the great question always is, who hath the *jus possessions.*It is this alone in the action of ejectment, that can entitle the Plaintiff to recover *;*and by whatever means it can be shewn that the *jus possessions*is lost, by the same means you *destroy*the Plaintiff’s right to recover. It is also a rule as well established, that wherever lie who had the right of possession, hath lost it, he who hath the possession hath gained if, and may make title thereby. It operates not only negatively as a bar to the Plaintiff, but also positively by transferring tbe right of possession to him who hath maintained the possession. 1 *Burr. Rep.*119. — ■ *Bunn.*112, 14, 15, *105*— Salk. 421, 685.— *L. Ray.*741. *L. Eject.*71 — 2 *Bl. Com.*196, *197.*— Bull. 102, 1Ó3. In the present case, we have acquired this right of possession three ways — First, by length of possession, namely Hays’ possession, Dewey’s possession, Long’s and Baker’s possession, altogether making a much greater length of possession than the statute requires; which when it begins once to run, cannot be suspended or impeded by any *ex post facto*circumstance, til! it completes the bar intended by tbe act. Secondly, here is a regular ciiain of conveyances from the original patentee to Blake Baker, the elder, exceptas to the conveyance from Carter to Hays ; which if it ever did exist, and is now lost, we may prove the contents of — and this is done by the recital of the Sheriff’s deed to Moritfort, under which the present Defendant now claims. The rule as to this point is, that though iti general a deed reciting another deed, is no evidence of the recited *deed;*yet if the re-*57t'iíinft* deed bo. that by which either Plaintiff or Defendant claims title, tí. shall be evidence as against him of the reality of the recited deed. *Glib. L. Evid.*98. Thirdly, we have acquired the *jus possesdonis*by a descent oast — Blake Baker, the. elder, was possessed at the time of his death, and the, land descended to his heir at law, the lessor of the- Plaintiff. This circumstance, supposing Carter had the right of possession until that time would have tolled his entry. *GiU). Ten.*18, 19, 33, 36, 37.— S *BL Com.*176 *to*It 9 — 2 III. Com. 198 — Co. *Litt.*266. *Gil.*20. — 3 *Bl. Com. 188*— Lit. *f.*385. — Go. *Litt.*256. And by whatever means Carter’s right of possession became tolled, by the same means the present Plaintiff, up-, on whom the land descended, became entitled lo it; and therefore in respect to the title of the Plaintiff to the possession of the land in question, previous to these proceedings by means whereof it is pt ofended the. Defendant hath obtained title, we may venture to conclude that the Plaintiff had the, right of possession until and at the timo of the sale made by the Sheriff in the year 1773, and that he now hath that right of possession, and is entitled to recover in this ejectment, unless the Defendant’s title,, as proven in evidence, be valid in law, and sufficient to supersede, the Plaintiff’s.

As to which we beg leave to premise, that lands upon the death of the ancestor, immediately descend upon an'd become, vested in the heir, except only'in the case of a devise to some other person, or of a judgment and execution issued in the lifetime of the ancestor. *Co. Lit.*184, *b.*6 *Hep.*79, *a*10 *Rep.*50, *b.*51. Even in the case where lands are made chargeable by will with (lie payment of debts, the descent to the heir is not broken, but they descend upon bun noiwithstanding. *Co. Lit.*236, *a.*265, *b. Office Ex.*295. *Godolph.*211, 372, 376, 184, 199, 201. 6 *Mod.*111. 2 *Mod.*(las. 271. *Coxvp.*468. 1 *Mk.*421. This we mention merely to shew how the common law stood previous to the act of Geo. II. which will be observed upon by and by more at large.; and to prove that by the rules of common law as it was previous to that art, and as we insist it now is, these lands had descended upon Blake Baker, the lessor of the Plaintiff, and were to all intents and purposes his property previous to the time of M’Neil’s judgment and *execution;*and then it will follow of necessary consequence, and from the very words of the writ of execution by virtue of *58vviiicli it is pretended the Sheriff sold these lands, that he had no authority for selling imparted to him by the writ. It recites a recovery of monies against the executors of Blake Baker, deceased, and commands the Sheriff" to levy them of the goods and” chattels, lands and tenements of Blake Baker, deceased, in the hands of his executors. This cannot extend so far as to authorise the, Sheriff to sell lands that never were in the hands of the executor, and to the possession whereof the executor had no pro-tensions *;*and in all cases where the law entrusts any man, and more especially an officer concerned in the administration of justice, with a power or authority, it requires that authority to be precisely and literally followed, and no discretion is left to him of extending that authority, lest under the colour of acting according to the spirit of his commission, he might do some act of injustice or oppression. *-L. Ray.*713. *Go. Litt. 49,b.*52, *a.*258, *a.*2 Bac. *M.*352. Co. *Litl.*113, 265, *b. Salk.*563. 2 *M.*519. The plain inference, resulting from which rule is, that the Sheriff having £aken and sold lands in the hands of the heir, when he had not any authority given to him by the writ/of execution to sell his lands, but only lands in the hanws of the executor, such sale is exactly in the same situation. We suppose it will hardly be contended such a sale could be supported— But, quitting this objection for a moment, let us consider the title, of the Defendant in another point of view. The lands in the present case, descended to the heir, have been taken from him and sold by a judgment obtained against the executors j and although it would he sufficient to say, that the law of this or of any other country can never beso absurd as to establish, that upon a judgment against one man no way interested in preventing that judgment, the property of another should he taken to satisfy it, without any opportunity given of defending himself. Yet as it is to be contended for *on the*other side, that in this country the lands of heirs are liable to be sold for the debts of their ancestors, upon a judgment obtained against the executors only of their ancestors — it will become, necessary to enquire what the common law directed in case of the death of an indebted ancestor, and whether the common law upon this head hath been in any respect altered. For if it shall be found that the common law required notice to the heir, atid an opportunity to defend himself, before it would permit the lands de-*59scowled to him to be charged, this being so consonant to the dictates of natural justice, must impose a necessity upon the Defendant of shewing some express law, or invincible implication of law, supported by strong reasons of policy, whereby it hath been abrogated. So strict was the common law, that no judgment should pass against a «¡an unheard — that no instance can bq imagined where property was to be affected by legal proceedings, that it did not require full notice to be given of the proceedings intended against him, the design of them, and a day to be appointed for him to appear and make his objections against them ; and this is required even in cases where the person that the Defendant represented in point of interest, had already made a deed — for it was possible that since these proceedings the- representative might have obtained a release, or have some other matter to shew', which in point of law and reason would he sufficient for his discharge: and where a possibility of this kind existed, the common law deemed it unjust to condemn without hearing the party. Thus in cases of a judgment obtained in the- lifetime of the ancestor, a recognizance, statute merchant, or statute staple, which in England affect lands from the time of their being rendered or acknowledged, though the lands are liable thereto and chargeable into whose hands soever they may come, and in like manner in case of a devise for the payment of defats. See 1 *Williams,*391. 2 *Mad. Cas.*171. *Cotvp,*468. 1 *Aik.*421. 3 *Williams*92. 2 *Eq, Cas. Jib.*500, 502. Yet in all these and the like cases, where it is possible the heir may have a sufficient, cause to siiew to prevent the execution, or whereby having notice ho may do an act that may prevent the execution or payment of the money due, or the like, the common law’ is strict in requiring a *sci.fa.*to the end tito party may have a day given him to make his defence, or to do that other act which may discharge his property from execution, lie here cited *Lilly's Enl.*384, *391*— Cro. *Car.*296, 295— *Cro. Jae. 186.-Cro. El.'80G.-JV’cls. Ah*925.-2 *Keb.*621, *pi. l&.-Fonb. 058,-Byer*an, *pL*25.-81 *pi.*62.-3 *Rep. 15.*-5 *Mod.*88.-6 *Mod.*134 — L, *It ay.*854.-4 *Bac. Ab.*418— *tialk.*598, 601. So careful is the common law in this respect, that in the case of *ierre-tcnaiils,*who have come into the possession of lands chargeable by judgment, it requires they also must have notice before the Plaintiff proceeds to execution. *L. Ray. 500,*1048, 1255, 1036, *6040, 079, 680, 376.-6 *Moil.*199, 226, 256.— *Lilly’s Ent.*S98.-1 *-Mod. Cas.*113.-2 *Cro.*186 — 3 *Mod.*119. 274 2 *Oro. 506.*— Cro. *El. 740.*— Hulk. 601, 598.-*Cro. Car.*215, *228.*— Cro. *El.*396. If it enquires Ibis in favour of a man who acquires the possession chargeable with a judgment already rendered against him, how much more will it require it in the case of an heir who hath by descent lands not yet affected by any judgment *1*This rule of the common law extends to all cases whatsoever. Even where personal property only is to be affected, it holds place- — if it is meant to be affected in the hands of one, not a party to the fiist judgment, and who by possibility may have a defence to make. *Salk.*320. *L. Ray.*24o'. — 2 *‘Doug.*636.-2 *Inst.*471, 395.-3 *111. Gum*344. And although it be now questioned by tho gentleman for (he Defendant, whether the *sci.fa.*be necessary since the act of George II, to charge, lands in the hands of the heir, yet this question hath been actually before/stirred here, and determined in the affirmative— for amongst tho records of the late Superior Court for this district, in the year 1771, there is an entry in these words: — “October Term, 1771. ■ *Brule*v. Lath,berry_ Execution. Motion to set aside the execution. The Chief-Justice pronounced the opinion of the Court to be, that tiie execution be set aside, and that restitution be awarded. The Chief-Justice alone being on the bench, and declaring the foregoing to be the opinion of himself and Justice IíknuersoN, and that the latter yesterday, out of Court., in the presence and witii the consent of Mr. Justice Moore, requested the Chief-Justice to de~ liver the said judgment, as the judgment of the Court. Motion fora *sci.fa.*against the terre,-tenant.granted.” This entry, short as it is, proves the decision of this very point heretofore; and as it seems to have been often argued and well considered by the Judg-'s at that time, it deserves at least some respect; and since the revolution, there have been trials in our Courts in which the opinions of the Judge have been conformable to this opinion in the case of Lathberry — l mean the decided opinion Judge. WTivliams gave in the case o! Baker and Long, as to one parcel of the land sold upon a judgment against the executors, and in the case of Baker and Ashe tried in this Court. Now, if in the case of an executor or'administrator, where judgment hath been regularly obtained against his testator or intestate, the iaw re*61quires notice to issue to him before it. will permit him to be charged, because there is a possibility of his having something to allege in his defence, surely such a caution is much more necessary where lauds are to he affected in the hands of the heir, upon a judgment obtained against an executor, in the case where the *sd.fiu*is to issue against the executor or administrator — his testator, or intestate was at the time of the judgment the principal, and indeed the only person who was interested in defeating and pretenting the entering up of such judgment — his property was to be subject to it — his person was liable to it — he best knew every defence- that could be made, hating been personally concerned in originating the contract or cause of action upon which the judgment was obtained j yet because the executor may have by-possibility obtained a release, or may not have sufficient property of the deceased, and so may be m danger to lie subjected for want of proper pleading *de bonis propriis,*he must have notice, in the case of the exceptor and heir, it is most generally the interest of the executor to throw the burthen of the debts upon the land of the heir. He is most generally a person beneficially concerned in point of interest in the personal estate, which if lie can save, at the expense of the real property, he and the other legatees become so much gainers | and the case now before the Court exhibits an example of the great facility with which an executor might ruin the heir, if the heir was not to be made a party before, his land could be sold, if the executor w as so minded. In this case, the executor pleaded *plene adminislra'oit*and *non assumpsit,*but only the latter issue was submitted to the jury, the former being confessed by the Plaintiff McNeil. If such a confession be sufficient evidence of the personal assets being exhausted, so as to eitable the creditor without, more ceremony to lay bold of the land, every executor by procuring a confession of the plea of *plene adminis-travit,*by the creditor, whose interest it would most generally be, for the sake*#!' having a speedy recovery, to accommodate the executor with such a confession, would have it in his power to charge the real property with all the debts oí the testator ; and thus the heir be stripped of his freehold, though there might be in possession of the executor personal property to a much greater amount than would satisfy all the debts; it might, for ought we know, have been the case in the present instance. Why *62not t!ie creditor and. executor submit to the jury to enquire of the plea of *plane administraron,*as well as that of *non assumpsitP*11 is evident there was some understanding between them; but all we contend for is, that such a combination is possible, and that the effects might be very prejudicial, if not ruinous, to the heir; and that a rule from which so many evils flow, and so much injustice. springs, cannot he founded in law. It places the lands of the heir completely in the power of the executor, whose interest it is to burthen the land in exoneration of the personal estate. It is *committere ugnum hipo,*and to depuve tiie heir of his freehold untried and unheard, when perhaps he is able to shew, if lie Itad an opportunity, that the persona! assets were not exhausted, or collusion between the creditor and executor in demanding and allowing, or in respect of the quantum thereof. The executor may frequently be exposed to the temptation of suffering judgments that might be prevented by a proper defence. There are circumstances which would render such a conduct profitable, not only to the creditor, but to himself. Shall not the heir be allowed to defend himself against such attempts ? Shall his freehold, so much respected by the law, be taken from him at the will and pleasure of the' executor, or by his neglect and carelessness ? Surely no person can be more improperly trusted with the heir’s interest than the executor, who in so many instances has an interest so directly opposed to that of the heir. But without reasoning about tiie policy or propriety of the thing, as it is certain that the *common*law required notice to the heir, let us now demand by wiiat statute, act or other law, this privilege, so essential to justice, has been taken from him. There is no express law for this purpose— but it will be urged, that this alteration is operated by implication and construction of the act of 5 Geo. II. *ch. 7,*which enacts, “That.from and after the 29th day of September, in tiie year 1732, the houses, lands, negroes and other hereditaments and rfe' estates, situate or being in any of the said plantations, belonging to any person indebted, shall he liable to, and chargeable witli all just debts, duties and demands of what nature or kind soever, owing by any such person to bis Majesty, or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts duo *63by bond or other specialty *;*and shall be subject to the like remedies, proceedings and process in any Court of .Law or Equity, iri any of the said plantations respectively, for seizing, extending, selling or disposing of any such houses, lands, negroes and other hereditaments and real estate, towards the satisfaction of such debts, duties and demands, and in like manner as personal estates in any of the said plantations respectively arc seized, extended, sold or disposed of, for the satisfaction of debts.”

If the alteration contended for in respect of notice to the heir, is not to be inferred from this act, it has never been affected at all, and the common law remains as it was — then for want of notice to the lessor of the Plaintiff in tho present case, either by *sci.fa.*original action, or some other process, the sale of his lands, and the proceedings'that are supposed to prop it, are wholly void as to him.

In order to get at the true meaning of this act, and by (hat means to discover whether it has really intended to take from the heir, this privilege of being previously called upon to defend himself before lifs lands could be seized — it will be proper to consider what was the occasion of introducing the act, and what the mischiefs it meant to remedy ; for if there were mischiefs, and it remedies them without the aid of the construction that the other side will contend for, we apprehend there can be no reason for extending it further than will reach these mischiefs, and more especially as such a construction is against the principles of natural justice, and against that rule of reason and the common law, which at all former periods hath most carefully been adhered to as the only sure means of obtaining justice. In the times when the feudal system prevailed, lands could not be sold, lest an improper tenant should be substituted ; and where a debt was recovered, there lay no other process for the creditor but a *fi.fa.*or *lev. fa.*3 *Hep.*13. Thus the law con-tinned until the 13th Edward 3. when the Parliament, finding how beneficial it was to that country to extend credit, by making creditors as secure as possible of their debts, passsd two acts, making lands liable for the satisfaction of debts — the one in the 13th Edw. I. *ch.*18, giving the writ of *elegit)*the other in tiie same year, *ch.*11, giving the statute merchant, &c. *2 Inst. 395.*By the *kegit*the creditor might take the one half of tho lands *64where there was no personal estate, to hold, until out of the profits of an appraised yearly value, his debt should be satisfied. In the case of the statute merchant, the whole land was to be holder) till such time, as according to an appraised yearly value, the debt should be made. A sale in either case was not allowed. And in respect to the debt of an ancestor, if lie died before any judgment recovered against him, the heir was only liable to such debts as were due by the obligation of the ancestor, and in which the heir was expressly bound : as to all specialty debts in which he was not named, and all debts due by simple contract, where no judgment had been obtained against the ancestor in his lifetime, the heir was not chargeable with them. 2 *Bl. Com. 377.*378. 244.— 1 P. *i'Vd. 777.*— 2 JVHs. 66, 924.— *Vem.*180. — 3 *Levintz. 189.*— Plow. 440. Thus stood the law at the time of the first settlement of this country. The inapplicability of it here, and its .unfitness for the circumstances of this Country, soon became evident. The greater part of the property of this country consisted, though *in tortile, yet*in uncleared lands, not of very great value, and yielding no annual profit. As the acquisition of a tract of land was within the compass of every man’s atchievemeut, every man chose to employ his labour in the clearing and cultivating bis own land rather than another’s, which when cleared and improved, and rendered fit for tillage, would advance only the interest of the owner, and tend very little to his own : hence resulted the imeotnpotency and inutility of the writ of *eleifit.*Experience soon evinced that few or none would consent to hold lauds by such a tenure as was offered by the writ; hence real property gave* no credit to its owner — it could notin practice be made answerable for his debts. This was one of the inconveniences the act meant to remedy, and to that end it has made lauds liable to be seized, extended, sold or disposed of, in like mariner as personal estates, in any of the said plantations respectively, are seized, extended, sold or disposed of, for the satisfaction of debts. By this branch of tire act, lands which before vvei.e not in reality liable to the satisfaction of debts, may now be exposed to sale, and this inconvenience is completely redressed. Another of the inconveniences resulting from the law as it stood before the passing of that *65act, was, that bands in the hands of the heir, were not liable to any but specialty debts, made obligatory on him by express words : this inconvenience is also completely remedied by the act — it ordains for the future, that all real estates shall be liable to, and chargeable with, all just debts, duties and demands, of what nature or kind soever, owing by any sueb person to bis Majesty, or any of his subjects, and shall and may he assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty — tins is a most copious provision, against the latter mischief. By this branch, lands in the hands of an heir, are subjected to sale for all kinds of debts. These two branches of the act are all the operative parts of it, and are manifestly aimed against the two evils before mentioned : it contemplated the removal of these and of these only. Before the passing of this act lands could not be sold for the payment of debts, and the heir was not liable to the simple contract, or other debts of the ancestor in which he was not named : since the passing of this act they are liable to be sold, and in the hands of the heir are liable to ail debts justly.owing from the ancestor. By the removal of these inconveniences the purposes of the act áre fully eff'erted, and we contend there is no propriety in extending it to any other case, which probably the Legislature bad not in view, as that would be to make, not to construe, the act. It will be urged, that by the words, “ Shall be subject to the like remedies and proceedings, in any Court of law or equity, in any of the said plantations respectively, for seizing, extending, .selling or disposing of any such houses, lands, negroes, or other hereditaments and real estate, towards the satisfaction of such debts, duties and demands, and in like manner as personal estates in any of the said plantations respectively, are extended, sold or disposed of, for the satisfaction of debts,” the Parliament intended, as to all purposes ot execution of judgments, to have lands considered as personal property ; and of course that it is immaterial whether the executor had personal assets sufficient or not, as the creditor bad his option to take the real or personal first, at his pleasure j and that the real estate, as to this purpose being to be considered as personal estate, is properly in the hands of the executor, although as to all persons but. creditors, it is to be considered as real estate descending to the heir *66as before the passing of the act, and consequently that there was no necessity for any other person than the executor to be made a party to the judgment by force whereof the lands were sold. This is the doctrine that will be attempted to be established for the Defendant— but by the law of England, up to the rime of passing the act of *Geo. II.*and of course by the law of this country up to the same time, the personal estate hath always been considered as the proper fund for the payment of debts, even in cases where lands or real estate have been made chargeable by will or judgment to the payment of debts. Yet so great hath been the regard which the !awr had for freehold property, that it would never sutler it to be touched but where it became manifest the personal estate was exhausted. 2 *Inst.*895. 4 *Bac. Jib.*419. *Cunning. verb assets.*2 *E.*C. *Jib.*493, s. 5. 494, s. 8. 496. s 13. 500, s. SO, SI. 502, *s.*38, 89. 2 *Ch. Cas.*84. 1 *Vern.*56. 2 *Vent.*349. 1 *E. C M.*270, s. 10. This role is not any relick of the ancient feudal system. It is founded in the soundest policy, equally applicable to the condition of this country as to that of England, and accordingly has been cherished and supported here, both before and si ore we emerged from regal government. That property which is deemed the most sacred, and is the best secured by law, becomes more than any other the object of attention, because it is the most permanent, and it is good policy to make that property most the object of attention, which the most effectually attaches its proprietor to the country he lives in, and real property possesses this qualify mere than any other. An industrious man, who by his labour has collected wherewithal to purchase him a little property, naturally fixes his attention upon that which in all probability will continue the longest with his posterity, and which the law has rendered the mast difficult to be taken from him — a freehold becomes his object, as well for the reasons be-fo e mentioned, as because the Constitution of the country lias annexed to it certain privileges that advance him in the rank of citizenship ; and as the freehold, when acquired, is incapable of being moved away like personal property when danger threatens or the State has occasion to call for persona! or pecuniary aid, he is always ready to be called on, and to supply the emergencies of tin* commonwealth *;*when at the samo time the bolder of personal property, apprised of the services which the *67State needs, hath withdrawn both himself and his effects from the country, and possibly may throw them into the scale of the enemy. The more freeholders there are, therefore, the greater is the public strength and respectability — and the method the law has taken to encreasc their number, is by placing freehold property as far out of the reach of creditors as was consistent with that other maxim of justice and good policy, that all just debts ought to he paid when the debtor has any property wherewith to pay them. These we think are. sufficient reasons for the preference tlie law ha$ given real over personal property ; and notwithstanding the construction contended for, 1 believe it has always been understood since the passing of this act, tiiat the rule of law is so. In the case now before us, and in several other cases that have been before this Court, in which the present Plaintiff was concerned, there was the plea of *plcne ad-ministravit*pleaded and confessed j from whence it may be inferred to have been the opinion of these times that without such plea, the, lands could not, be made liable, and in the same rases it is observable there is a suggestion entered on the record, that there are lands, intimating that the plea of *plene administravit,*confessed or found, was the only circumstance that could warrant such suggestion *;*and that in these times the lands were, not, considered as assets in the hands of executors for the payment, of debts; for had they been assets in the hands of the executor, the suggestion of lands, where it was confessed that the executor liad legally disposed of all. his assets, would have been absurd : and since the Revolution, this same rule of law has been carefully attended to and preserved. JV*. 0. *Laws,*303, s. 29. 330. 53 L These instances .serve to evince the constant opinion which has been entertained of the existence and the propriety of the rule, that real property cannot be affected where there is personal estate to answer the demand, both before and since the passing of the act of *Geo. II.*and constant opinion and experience, wc are told, are good interpreters of an act of *Parliament;*and to all those instances I would add the weight of the solemn adjudication in *1771,*before stated.

These examples all prove that the construction the Defendant would put upon this part of the act of *Geo. IL*blending real with personal property, and placing it in the same degree of liability with personal property for *68Hie satisfaction of debts, militates both with flie policy of our laws in general, and with the true spirit of the act in question in particular, and proves also that we should look out for some other meaning more consonant to *both;*and the true meaning seems to be, that the real estate, like the personal, shall be liable to be sold by the writ *of ji. fa.*and to be conveyed to the vendee forever as personal property may, it respects only the interest which may be conveyed to the purchaser, and in that respect only places real estate upon the same footing as personal, Before the passing of the act of *Geo. II.*tenant by *elegit*could only hold the land until by the reception of the yearly profits he liad made the debt, now the vendee shall he entitfed to hold them forever, in like manner as if he had purchased personal property, and in like manner as if personal property, instead of real, had been seized, extended, sold or disposed of, for the satisfaction of the debt, and he had become the purchaser. Surely it cannot be inferred from these.words, that the ancient well established rule of preferring the real to personal property, is broken down,and together with if this other rule, that every man ought to have the defence, of his own property, and warning given him to defend, before it shall be taken from him, when they are so capable of another meaning, and such an one too without which the law would not he perfect, nor could he made to accomplish its end. Is it not enough that lands are made liable to sale, when before they could only be extended ? — Must we go further, and imply what the law has not said, that they may be laken from the heir ant! sold without making him a party ? For this is the direct consequence of saying they shall be assets for the payment of debts in the hands of the executor. Why say the executor shall have it in his power lo aff ct the real estate by confession of judgment, or not defending the claim, or defending it but faintly, or by colluding with the credU tor, when this law has not said it? Why say the creditor may make the land first liable if he will, when this act expresses no such sanction *;*and when the ancient rule, framed with wisdom and grounded upon the soundest reasons, has manifestly and undeniably drawn a plain line of distinction between the real and personal estate of the debtor, making the former an auxiliary fund, only when the other fails ? Why break down so many material boundaries, when the act has said nothing about *69them, and when it is fully satisfied by the meaning' we contend for, and when the act has clearly expressed its meaning with respect to the real estate, to be that it shall be liable to simple contract and other debts, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other specialty ? How are they liable to be affected in England by bond or specialty debt ? Are they liable to be extended in the bands of the, heir by a,judgment against the heir, before they can be seized ? In case of a judgment against the ancestor, must there not be a *sci.fu.*against the heir ; if no judgment, must there not be an action of debt against the heir ? Can lands iri England be affected, whilst there is personal estate sufficient to pay the debt ? Could this art have more definitively expressed its meaning, than by referring to this well known criterion, in like manner as real estates in England are liable to the satisfaction of debts by bond or other specialty ? How can it be pretended after thus precise declaration of their meaning, that the Parliament intended the lands of this country to be considered not as real estates, but as personal assets for the satisfaction of debts ? Can such a meaning be imposed against the very words of the act, and in the face of so many ancient rules of law ? Surely I shall be warranted in concluding it cannot. But let, it be granted the Parliament really meant that lands should be considered as personal estate in the bands of the executor; what will that avail the Defendants in the present case ? The consequence will be, that these lands, as to the purpose of making satisfaction for debts, went as other personal property into the bands of the' executor, from and immediately upon the death of the testator, and were assets as the personal estate of the testator was in his hands from that time; then they were assets in the hands of the executor, when the Plaintiff«M’JVbii confessed the plea of *plene administravit,*and the confession of that plea amounted to this, that the executor had paid in a legal course of administration, to the value of the assets which bad come to his hands, and this being a confession on record, barred him from ever resorting to any of the testator’s property, which at the time of the confession of that ¡dea, had come to the executor’s hands j and thus the lands in question, supposing them to have been personal assets, were forever exonerated from the Plaintiff’s demand. 8 *Hep.*1S4. *Offi.. Exe.*1.85, 188, *70igo, 191; *Bull.*169. So that, if it be conceded to the Defendant, that these- lands were, what in truth they were not, personal *estate;*yet they were evidently illegally sold. Let us add one observation here, and we will quit this part of the case — had the act of *Geo. II.*made lands as persona! estate for the payment of debts, then the executor would have had some controu! over them, for the purpose of keeping them liable; he would have had some power to dispose of them, when it became evident the personal estate was deficient — but has if ever been known, that the executor lias taken possession of the lands upon the death of the *testator;*or that he has had it in his power to hinder the heir from selling, when he wished to sell ? Has a sale of lands by an executor for payment of debts, without power given him in the will of the deceased, ever been held, or supposed to be valid ? Has it not always been thought, since the passing of this act, as well as before, that the executor will be liable to the action of the heir, if he should enter upon the lands for any other purpose than that of making an inventory ? And if the executor cannot sell directly, to enable himself to discharge the debts of the deceased, lest he might, prejudice the heir, shall he be enabled indirectly by suffering a judgment against himself, to do the same thing ? Would not this be to make the law defeat its own sanctions ? To say to the executor you shall not be entrusted with a power to' sell the lauds, lest you might injure the iieir, but you may suffer a judgment against you, and cause the land to be sold that way. Had the act intended to consider land as personal property, all those, powers would have flown to the executor as water from its fountain *;*and some of the able Lawyers and Judges, who were cotemporary with the making of that act, and were the best expounders of it, would have recognized these powers, and have caused them to be exercised and practised — yet no instance can be shewn of any such practice, from the time of passing that act to the present moment; and certainly the total silence of those who have gone before us on these topics, is a great evidence that such is not the meaning of the act — -wherefore, as to the Defendant’s title, both because the Sheriff had no authority to sell the land in question by the terms of his precept, and because had there been such a precept, it was issued without any judgment against the heir to warrant it $ or to make the best of it, by such judg*71ment as in respect of him was totally void, we humbly submit whether the sale made by the Sheriff is of any validity whatsoever, to do away the title of the Plaintiff.

It will be urged for the Defendant in case of extremity, that these proceedings at worst are only erroneous, and will remain in force- till reversed by a writ of error —to which we say, if they are erroneous only, and not absolutely void, as we contend they are, yet the adjudication, and the award of execution, being the acts of the Superior Court, could not at the time they took place, nor can they now, be reversed by the Superior Court in a writ of error — for flic same Court that hath rendered an erroneous judgment, is never entrusted with the power of correcting it. To lodge- such a power with the Court who hath committed the error, with an expectation that that Court would correct it, would be absurd : and beside, who is to grant the writ of error *1*There is no other Court, in this country but the Superior Court who can grant it — so that the Superior Court must direct a writ to itself, therein giving a commission to itself, to correct an error in judgment which that Court had formerly committed. This cannot be seriously insisted on : it is a doctrine too tender to bear the light. The true rule is, where a Superior Court hath committed an error in a matter of fact, the same Court may correct the error ; not where the error is the act of the Court in a matter of law. Iti England they have a writ, or commission, directed to them from the Chancery for this purpose — in this country I do not know how they will proceed, perhaps by filing an assignment of errors, and noticing the adverse party to answer them. 1 *Roll.*746, *747, pi.*12. 2 *Bac. M.*213, 190. *F*JV. *B.*50, 51. Lili. *Ent.*490. It is also a rule of law, that where a party who is injured by an erroneous judgment, is so situated that he cannot have relief by a writ of error, or other *means;*that then lie may be relieved by plea, entry, ejectment, &c. or other means best suited to his case. 2 *Mo.*308, 219. 11 *Rep.*44. 6. 2 *Bac. Jib.*229. 6 *Rep.*14. *a.*9 *Rep.*119. *b.*3 *Bac. Jib.*153. 8 *Rep.*76. *b. Cro. El.*489. And accordingly there are many cases to he found in the hooks, where a man may take advantage of an erroneous proceeding in assize. 2 *Bac. M.*347. *Roll. Jib.*304, 305. *Cro. Jac.*85, *pi.*10. 3 *Bac.*153. *Roll. Jib.*140. *F.*JV. *B.*648. *Boll. Jib.*140, *pi.*6. Anil if in an assize, certainly also in an ejectment, both he-*72}nc, actions of a similar nature, that is to say, both being possessory actions. 1 *Burr.*110, 111. And indeed there are express authorities that such error may he taken advantage of, upon evidence in ejectment. 2 *Bac. Jib.*369. in a note 1 *Lev.*160. *Garth.*453. So that we apprehend, notwithstanding this objection, for these reasons and authorities, it will be thought we have adopted the proper method of avoiding these illegal proceedings in the present case, and we hope to have the opinion of •the Court in our favour.

I cannot give any thing like a complete representation of *Col. Davie's*argument, some of (he most striking parts of it I noted at the time, and those only I am able to give —though his argument, was a very ingenious one, and contained much law, and cited many authorities.

*Davie,*for the Defendant

As to the title of the present Plaintiff, as attempted to be deduced from the original patentee, there is a chasm — the di-ed from *Carter*to *Hays*is wanting. I take the rule of evidence to be this —when a deed once actually existed, and has b' < n destroyed by fire or the like, *f*Bull. 254,) then a copy, and for want of a copy, parol evidence of the contents may be given *;*but in the present case no one is introduced to prove, he ever saw a deed from *Carter*to *Hays ;*no one pretends to swear it was lost, and consequently no proof is made of its having ever actually existed. In the case of *Few*and *Jllves*at Hillsborough, wo produced the probate of the deed on the minutes of the County Court; even the sworn copy of the Register’s book is not evidence. As to the recital of the deed from *Hays*to *Dewey,*that is no evidence of the recited deed ; we were no parties to it: and as to the recital of the deed from the Sheriff to *Montfort,*that deed is under the seal of the Sheriff only, and he who hath not sealed a deed, cannot be estopped by it. This deed contains only the words of one party, neither is the confession of *Carter,*that he had conveyed to *Hays,*of any avail. He might have leased fora term of years, or have conveyed some estate of less dignity than a fee. He might possibly have given it verbally, without executing any deed at all. His saying he had given the land to *Hays,*is too slight and too uncertain to be received as proof of the existence of a deed. With respect to the Plaintiff’s title, by possession, the second section of the act of limitations respects the Plaintiff’s title, the third section regards the title of Defend*73ant — by the second section the Plaintiff must have colour of title and possession ; but. *Hays*never had any colour of title, and if he had possession for seven years or more, for want of a colour of title to accompany it, lie acquired no title thereby : but in fact he. had no such possession as the law takes notice of, so as to ripen inte» *title;*that must be an actual possession, *(¿nasi positus pedis,*an actual setting down upon the land. It must be such a possession as will make a notoriety in the country, and inform him who has title that the land is adversely claimed : otherwise a man might lose his title by a secret using of the land, which he might not know of till it was too late — cutting timber off another’s laud, at different times, through a course of seven years, will riot do — it must be an actual continued possession. *Dewey*had never any possession of the land, he. lived upon another tract adjoining *;*which other tract was purchased of another person ; and although *Hays’s*tract, as it is called, might adjoin it, yet his possession *of*the other tract, could make no notoriety of his claiming *Hays’s*tract adversely to the claims of all other persons. He might have purchased it so secreetly from *Hays,*that *Carter*might not have known it in seven years — and shall the mere circumstance of his continuing the possession of another tract adjoining that, oust *Carter*of his title?— *Dewey*conveyed both tracts, by one deed, to *Stewart,*in 1765. *Stewart*had not the actual possession of *Hays’s*tract, hut had a quarter upon that part of the twm tracts united, which *Dewey*before had possession of j and I suppose the possession of this part, was the possession of the whole land contained in that deed, and by consequence an actual possession of *Hays’s*tract: yet from the time of *Dewey’s*conveyance to *Stewart,*to the time of the death of *Blake Baker,*the eider, there is a space of about four years only, so that he had not acquired the *jus possessionis.*in his lifetime.

With respect to the other means by which the Plaintiff attempts to make a fide in himself, namely, a descent of the lands upon him by the death and seizen of *Blake Baker,*the elder, which he insists, tolls the entry of him who had the right of entry, whoever he was — this is a doctrine founded in the feudal system, and is therefore not applicable to tiie circumstances of this country. *Gilb. on*Ten. 18, says, "The notions of the law do make this title to him,, that there may be a person in being to do the *74feudal duties, to fill the possession, and to answer the ac-fiotiii of all persons whatsoever; and since it is the law that gives him this rigid, and obliges him to these duties, antecedent to any act of his own, it must defend such possession from the act of any other person whatever, till such possession be evicted by judgment ; which being also the act of law, may destroy the. heir’s title.” Were tiiis doctrine adopted here, it would be rejileto with mischief. There is no instance of any writ of right having been ever sustained in Ibis country, or of any other, of the ancient common law actions for the recovery of lands ; whence it may be inferred they would not be sustained here,, should they be brought. But by tin's doctrine if a man bad privately sel tied upon another’s land, and before the proprietor bad discovered it, the trespasser had died in possession of the, land, the proprietor could not bring an ejectment; which is the only action here used, he having lost *the Jus possess iouis*by the descent cast, and of coarse lie would be deprived of any recovery forever. Such a method of acquiring and losing a title, is so unfit for the. situation and circumstances of this country, and in practice would be attended with so many mischiefs, that I apprehend it cannot be taken to be, or ever to have been the law here, whatever it may have been in England, it is too repugnant to the principles of common justice. The Plaintiff therefore upon either of the three grounds he has taken, must fail.— But supposing him to have made out a good title, that title, hath been legally transferred by a Sheriff’s sale to the Defendant; this leads me to a consideration of the act of *Geo. II.*At the common law, lauds were not liable to execution for debt, being obliged to answer the. feudal duties to the Lord, and a new tenant could not be forced upon him without his consent in the alienation.— 2 /Jit. *Jib.*328, 329. And the person of a debtor could not be chargi d in execution, because be was to be left at liberty, to sen e the King in liis wars. 3 *Rep.*13. There were no other writs of execution for the creditor,but the *ji.fa.*and *lev. fa.*by the former, the goods and chattels of the. debtor only could be taken in execution ; in the latter, the Sheriff was commanded *quod deterris etcatal-lis ipsius levari facias,*&c. whereby the Sheriff may collect the debo -uf of the profits of the land, as the corn or grass growing thereon, or out of the rents payable to *75t.be creditor ; but lie could not by cither of these writs meddle with the lands themselves. 2 *Ba. Jib. 351.*these writs were common law writs, and affected chattels only. *Gilb.*on *Exe.*4. TheJL *fa,*never was considered otherwise than as a writ against the goods and chattels of the debtor ; in .England the land could not be sold, because the debtor or tenant liad not the property, but da? lord of whom the feud was holdon. It was not till the year 1285, when the *clegit*was first introduced by the *ISth Edwd 1 ch.*18, that lands could be affected with the tenant's debts at all. *Gilb.*on *Exe.*32.— But they were not allowed to be sold by this writ, they were, to be appraised according to their yearly value, and delivered to the creditor to hold, till out of the yearly profits he should make the debt, in England the property of all the lands in the kingdom, resides in some superior lord, and that is one reason why the land of a subject cannot be sold to satisfy his debts. But that is not the case in this, country ; the feudal system never did prevail here;.every man hath been always held to be the absolute lord and proprietor of his laud, having the entire dominion in himself. These things I mention-«1 to shew' the gradual changes which have been made in the law in respect ofexecutions, & how it became proper and convenient!» this country to sell landsby the writ ofy?. *fa.*when such a proceeding was impossible to be eficcted in England. In the year 1732, and previous to that time, the evils existed that have been enumerated on the other side, namely, lauds could not he sold for the payment of debts, and the extending them here was not any remedy to the creditor, owing to’the infantine and unimproved state of the country, and lands wore not liable after the death of an ancestor, to any o ibis simple contract debts, nor to those due by specialty in which the licit* w as not specially named: and it. is true, that these mischief:? were meant to be remedied by the act of *Geo. II.*But Usese were not the only evils it meant to provide against, there were others which are to be attended to in forming a construction upon this act, which the counsel on the other side has not mentioned, and which notwithstanding the passing of this act, must still remain unremedied, if such construction is not put on it as we contend for by the. law as it stood at the time of passing the acbof *Geo. II,*if the heir aliened before action hroughi, thedehf due *76from the ancestor could not be recovered against hint. This indeed had been remedied in England by tfie 3 and 4 *W.*and *M, ch.*14. But that statute not being in force here, having been passed after the settlement of this country, the same inconvenience continued to exist here as had existed in England previous to the act of *W.*and *M.*and it continued also after the. act of *Geo. II.*unless the words, *it*and shall be subject to the like remedies, proceedings and process, in any court of law or equity, in any of the said plantations respectively, for seizing, extending, selling or disposing of, any such houses, lands, negroes and other hereditaments, arid real estates, to1wards the satisfaction of such debts, duties anti demands, and in like manner as personal estates in any of the said plantations, are seized, extended, sold or disposed of, for the satisfaction of debts,” shall be so construed as to place real property as to executions, and the satisfaction of debts, upon the same footing as personal estate. If in these respects it is so considered, then the heir will not have it in his power to defeat the creditor by alienation 5 for the land will be as personal assets in the hands of the executor, till the debts of the ancestor and testator are paid, and the sale of the heir will be invalid; or the lands will be considered as assets in his hands liable to be affected by a judgment against the executor, and making the heir himself, liable to the value, in like manner as personal assets make the bolder of them liable for the value, whether he dispose of them before or after action brought. The Legislature have expressly said, that as to the satisfaction of debfs, lands shall be liable in like manner as personal estate, and may like them be sold ; would not the court then go too far, should they say, that in many respects, lands shall not be liable as personal estate, but shall be proceeded against in a different way,, and that still they shall be considered as so much in the nature of real property, that the heir by aliening before action brought, may discharge himself of the debt entirely ? This would be to extend the operation of this act to part only of the mischiefs it meant to correct, by using general words, it undoubtedly intended to cut off all those evils Í have mentioned, by the roots at once; and which indeed it will have effected completely, should the comprehensive terms used by the Legislature be. suffered to retain their genuine and natural *import;*and it is to be' *77remarked that by our construction, the process wherebyJ the creditor is to come at his debt, is much shorter; the whole is done by making the whole property of the testator, a pledge as it were in the hands of the executor, for the satisfaction of his just debts : the creditor has nothing to do, but to substantiate bis charge against the executor, and to receive payment; this comports with the preamble of the act, which is made for the purpose of extending the credit of the plantations, by putting it In tiie power of creditors, more easily to obtain recoveries and satisfaction of their debts. It is true indeed, the foregoing part of this act says that lands shall be assets, for the satisfaction of all just debts in like manner as real estates) are by the law of England ; but this is only descriptive of the debts to which lands shall be liable, not of the manner of proceeding against them ; and is tantamount to saying, that the lands of Carolina shall be liable to all kinds of debts, as much as the lands of England are liable to specialty debts, that is to say, in other words, as well'after the death of the ancestor as in bis bis lifetime$ for in England they are liable to specialty debts in which the heir is named, after the ancestor’s death ; or more properly speaking, the heir is liable in respect of them. The law of England in the case of specially debts, is referred to, it being well known, and precisely ascertained, how far lands are liable by that law to specially debts, when in this former part of the act by reference to the law of England it is sufficiently ascertained, that the real estates of this country shot.'Id he liable to all just debts, and that as well after as before the death of the ancestor: then lest doubts should be entertained by what kind of proceeding they should be affected, it directs that they shall be proceeded against in like manner as personal estates, orto be more explicit, that when judgment is against the ancestor, the same process shall cause them to be sold as causes the sale, of his personal property, namely, the *fi.fa.*and so also after his death, that the same proceedings as are to affi ct the personal estate, shall affect them alsoj that is to say, a judgment and execution against the executors.— Besides the inconveniences already enumerated on the other side, there were also others at the time of passing tiie act of *Geo. II.*which though redressed in England by the act of S arid 4 *W.*and *M.*had not been remedied in this country. If the debtor devised away his land from *78|j1P ||p(jPt the devisee was not liable to bis debts *;*i¡¡ too technical notions of the law, lie acquired the. land by purchase, not by descant, and this mischief remained after the act of *Get). II*I fours is not the ¡tropee t nnvtruction to be put upon the act, but if, since the passing of that act lands arc to be taken and proceeded against as personal estate, the devisee’s power to alien will be restrained until the discharge of all the testator's just debts, as the lauds of the deceased, so far as regards the. satisfaction of all just debts, will bo assets in the hands of the executin', and be bound by the judgment rendered against him : but as the act of *IF.*and *M.*was never in force here, all those inconveniences are left uuremedied by the act of *Geo.IL*and the creditor, until our act of Assembly,17'89«i¿et).c.311. sec. 2, might have been defeated of his debt by the alienation of the heir, or a devise of the. lands; but all these hardships are. at an end by the act ol *Geo. II.*should it receive, its proper construction, and be held to place the real estates of this country upon the same footing as personal estates with icgard to the process for debts due by the owners; and then if will bo found, that this act destroys all distinction between real and personal property, and no longer allows the real that preference it possessed before the act of *Geo.*11.— A prefeience. as I have before shewn, founded in feudal principles, and retained in the code of English laws, in the struggles between the landed and commercial interests in that country, insisted up»», arid maintained from time to time, as lands were gradually subjected to the satisfaction of debts ; but in this country, where every man was the absolute proprietor of the laud he held, and it was not for the. interest of atiy party concerned in the passing of that act to insist upon that preference, it was therefore no longer regarded. The act was intended for the benefit of "reditors, and to give them a hold on the ival a well as the personal estate of the debtor, without any distinction between them ; and it is for this purpose that the act so expressly provides, that the real shall be suU-J je< t. to the like process as the personal estate : the act; designed that »be creditor should arrive at his satisfaction out of the real estate, in the same manner and no Oliver» isv. Ilian if if was personal property ; and accordingly after the passing of this act, live Judges conforming to the true spirit of it, adopted the writ *of ft. fa.*arr *79Xhe proper execution to be issued under it. Á writ c;ii-ciliated only for the sale (if personal chattels, and always used at tbe rotntnon law as such. This is a circumstance that, proves tbe contemporary exposition of this act to have been, that land was considered as chattel property, as far as related to the debts of its owner. Upon what other principle could it be supposed, this chaire! writ would ever answer tbe purpose, i! lands were still to bo viewed it! <he light of real property ? Could a writ commanding the Sheriff, that *de bonis et. catallis debitoris,*he should make tins debt. &c. empower him to sell the lands of the debtor, if by some Saw these hauls were not to be considered as the *bona et cutidla debitor's.*This writ has been constantly used, and no other, for the sale oflands, ever since the aer of Cíen. *II*and in my opinion there cannot bea stronger proof then this, of the meaning which the latter clause of this act has been constantly denned to have. Much has hern said, and whole volumes of authorities read, to prove the necessity of a *sci.fa.*ag.dnst the heir: we will not deny, but that before the act of *Veo. If.*a *sci.fa.*was necessary, but that was a case extremely different fiorn this before the court, and is fully answered by stating tire difference only betweeen the nature of real estates in England and here, since the passing of the act of *Geo. II.*all the authorities cited, are of cases where the party against whom the original judgment or proceeding was, died since the judgment, so that there is no person left against whom to takeout execution, who was party to the judgment,- but the counsel fertile plaintiff cannot shew one precedent, where the *sci.fa,.*has ever beetr deemed necessary, tire party against whom tire judgment, wats, remaining the same, and in the same condition, without, any cireninsiance to vary his case, as when tire judgmenf was obtamrd. The party to bo called in, must oe the representative of the person against whom the judgment was ; the sci.fa. is always found'd upon a record, to which the person to be served with the *sci fa.*was a party,or privy. Our act of 17 34, *Rev.c.*204 is the lirst instance w here the heir could be calk'd in by *sci.fa.*upon a judgment, after the (loath of the ancestor; .aid without the aid of that act, the *sci. fa.*grounded upon the record of a judgment against the ex-Tutor, would never have lain against the heir, because to that record he was neither party nov privy- -The *sci.fa.*ism-da common *80writ; it was introduced by the statute of Westmin-st.er, the 2d. *Car.*43, and lay only upon the foundation of a record, to which the defendant was party. It is very incorrect therefore to say, that the *sci.fa.*lay in the case now before the court, against the heir; where the act of *Geo. II.*provides no such process, and where it is apparent the statute of Westminster does not authorize the use of it in such a case as the present, where there is a complete defendant in being, and the circumstance of his case not altered, from what they were at the time of the judgment by the intervention of time or otherwise. And indeed, if the *sá.fu.*would lie in such acaso before, what was the use of passing the act of 1784, *ttev. c.*204 ? The great number of authorities read by the plaintiff’s counsel are good law in England, but very inapplicable here, and can have no weight in the present cause. Here the *set. fa.*is not necessary, nor could it be used upon the same principles as in England, I mean in this case of a judgment against (he executor, to whom the heir is no representative; and when the executor himself is a*j live. 4 *Bac. M.*411. Our Legislature hath been careful, to avoid the inconveniences attending the recovery of debts,_ which I have before pointed out, lest the act of *Geo. II.*might not be deemed sufficient to eradicate them, an act hath been passed for that purpose almost *verbatim*from the act of 3 and 4 *W.*and *M.*This proves how great these inconveniences were considered to be, and also that the act of *W.*and *M.*was not in force in this country. I must therefore conclude for the defendant, that the lands of the heir might have been sold upon a judgment against the executor, and that there was not any necessity for a *sci. fa.*to have issued against the heir, that indeed it could not have been used in the pre-se,rá case> and that the lands which are the subject of this controversy, were well sold by the Sheriff to Mont-fort, under whom the defendant claims.

Counsel for the Plaintiff in reply

Though a deed be not destroyed by fire or water, but by other means, the party who wishes to use it may, by proving its existence formerly, and its contents, avail himself of it; and where he is not entitled to the custody of the dped, less proof will be required of its loss. Destruction by fire or water in the cases, cited, are put by way of examples only. *Bull.*254. 2 *E. C. Jibr.*title evidence. Here vve have made such proof both of its existence and contents, as is proper to be submitted to a jury.

*81The recital in the Sheriff's deed is good, against person c¡.aiming under the the deed. *La. E'dil.*100.— Where, a deed is accepted by a party named in the body of the deed, hut who did not seal it, and where the indenture is made in the third person am! accepted, it will estop as much as if the party had executed it, *Co. Litt.*330, 23 J, 352.

The second section of the act of limitations was made to validate, titles irregularly, though honestly obtained, before the passing of the act, and lias long since had its effect. Indeed froln the passing of the act, all such titles as are therein described,were confirmed by it. The third section was made to give title to a possession for seven years,and it operates at the same time, both for the possesoi* and against, the owner, ft was made to quiet men’s titles, and to prevent law suits after a great, length of time when evidences and witnesses might be, lost. It is this third section, and no other, in that act which can mature possession into title. It is a mistake, to say, the second section has any operation of that kind. Possession adversely kept, and that known to the former owner, is surely a sufficient possession to make title. There, by the confession of *Carter*himself, *Hays*was in possession for himself, exclusive of any other person’s claim or title.— This is notoriety enough to Carter, and he would not be allowed afterwards to disturb such possession by entry. The doctrine of tolling entries by a descent cast — thins-riginating in feudal principles, is not supported solely by them, it is founded also, upon a principle, of justice,namely, that he who could and would not attack the ancestor, who knew (it is presumable) how to defend himself, ought not to ho suffered to impeach the. heir, who is generally an infant, and who will require time to he informed of the true state of his tille, it was not, because the tenant, of lands in England bud not the property of them, that they could bo sold by *fi. fa.*it was for this reason, that an improper tenant should not be forced upon the Lord — a woman unlit for military duty — an enemy of fife Lord — a monk, or man of religion, or otherwise unfit ii/r duty — might be imposed upon him, and the military system, which first originated this law, be deranged : Indeed the law itself was continued afterwards for other reasons, when those of its introduction had ceased. Ever since the restoration of *Charles II.*until the time of our late revolution, the tenures of this country and of England *82were the saino — both free and common socage; so that *at*the time of passing the act of *Geo. II.*the owner of land in England, was as much the absolute proprietor as the owner of land her»*. As to the additional inconveniences, which it is said the act intended to remedy,namely, alienation by the heir before action brought, and a devise by the debtor, the act of *Geo. II.*has very amply provided against, them, by a means much more consistent with principles of justice, than the defendant seems to imagine: if we attend to the wording of that act, we shall find it adopted and enforced here — the act of *5 Geo. II. ch. 7.*says : “ The real estate of this country shall he assets for the satisfaction of all just debts, in like manner as real estates are by the law of England, liable to the satisfaction of debts due by bond or other specialty then what was the law of England at the time this act speaks ? Why, if an heir aliened before action brought, the act of S and 4 *W.*and *M.*said, he should be liable for ihe value; so lie is here, since Ihe passing of the act of *Geo. II.*for all just debts; in like manner, if a debtor devise away his lands from the, heir at law, the law of England, *to-wit:*the 3 and 4 *W.*and *M.*says, such devise as to creditors shall he, void, and that such creditor may maintain an action jointly against the heir and devisee, for the recovery of his debt: so since the passing of the ad, of *Geo. II*which adopts the law of England with respect to (he liability of the real estate, the lands of a debtor in this country, though devised away, make *the*dev¿see liable for ail bis just debts. By this means the ancient rules of law we coniend for, are preserved — the heir or devi-see is still to be sued, or a *sci. fa.*or some process, issued against him, his lands are not to be taken away by a proceeding to which he is not a party ; and atthesame time, the inconveniences suggesled by the Defendant’s counsel completely removed. The act of *Geo. II.*by its reference to the law of England, demonstrates the intention of the Parliament to have beet), that the heir or de-visee should first have notice, by some kind of suit, and this plain and obvious meaning of the act, overturns the whole system of argumentation founded upon the supposed inconvenience, which the aGt must be made by construction to remove. It is true, all, or almost all the cases of *sci. fa.*which we have shewn, were cases where the Defendant was dead, and no person left who had been a party against whom execution could be taken out; but *83all those authorities shew the principle, that the heir cannot be affected but by process issued against himself.— "What we contend for is only this, that tiie heir’s property cannot be taken away but by a proceeding to which lie is a party. We are not anxious it should be by a *sci. fa.*or any other particular mode — we say we should have been called into court by some process or other, and ha’- c had an opportunity *to*defend our freehold *; but.*it is a mistake to say, the statute of *Wesindnsier*the *2nd,*introduced the *sci. fa.*it was substituted by the statute to the original action, which at common law it was necessary to commence on a judgment that'had been dormant for a year and a day. All the authorities on the subject of a sci. *fa.*against the heir, are proofs of this ; for none of them are grounded upon the. authority of the statute of *Westminster,*hut upon the common law, and that maxim of universal justice that no man ought to he condemned unheard.

Our art of 1784, *Rev.c.*204 was indeed the first that expressly directed the *sci. fa.*against the heir upon a judgment against the executor ; but the preamble of that act. expresses the doubt that had been entertained respecting the proper method of arriving ata sale of the lauds of a deceased dehtor. It is evident the Legislature supposed the lands could not be sold by a judgment against the executor only, and if the act of *Geo. II*had made lands liable to sale without any *sci. fa.*merely upon a judgment against the executor — why were those doubts entertained? Where was the necessity of this act ? The same provision it makes, was already made by a much more speedy and short method, by the act of *Geo. II.*

It is argued that because after the act of *Geo. II.*¡amis were sold by *ixfi. fa.*which at the common law was a chattel wmit, therefore lands after the passing of this act. were deemed chattels, otherwise the *fi. fa.*could not have touched them — but was not an alteration made in this writ to accommodate it to the purpose of the act of *Geo. II.?*Have not the words “ lands and tenements,” been added to the common law writ *off, fa. ?*This makes a wide difference between the common law writ of *fi. fa.*and *f. fa.*used in this country. If the common law chattel writ of *fufa,*as it is called, would have effected a sale of the land, for what purpose were, the words “lands and tenements” added ? It is clear, it was apprehended the lands could not be sold under Use words of the old *84writ, “goods and chattels of the debtor and this seems (0 |j(. on,., amongst the many strong reasons there are, for rejecting the construction which this argument, drawn from the nature of the writ *oi'fi.fa.*is intended to support.

Judge *Macay*— The whole weight of this labored case, seems reducible, to this question, what is the true construction of the *5th Geo. II ch.*7.? And i am of opinion this act meant to provide. For two things, the sale of lands for debts, and the making (¡¡era Hable to all just debts in the hands of Hie heir: and 1 am of opinion, that since the act of *Geo. II.*Hie same distinctions between real and personal property is to be kept sip as before — and that lands, upon the death of an ancestor, descend to the heir, and personal chattels go to the executor as before; and lands in the hands of an heir, are no more to be affected by an action or judgment against the executor, than the personal estate in the bands of an executor, are to affected by a judgment against the heir: their interests are totally distinct and separate. As to the Plaintiff’s title, if a deed be lost, and the existence of it be pro' on, a copy, or if no copy, parol evidence may be given of the contents : if these proofs be satisfactory, they are to bo received. The jury have heard some evidence. for both these, purposes, it is for them to consider of the weight it deserves to have ; if satisfactory to them they will find the Plaintiff’s title complete.

Judge *Jishe*— I am of opinion the *5lh Geo. II. ch. 7.*¡meant to make lands liable to the payment of debts, &so far as regards the payment of debts, to have them proceeded against as personal chattels; and that they descend to the heir chargeable with all such just debts as shall be recovered against the executor — hundreds of tracts of land have been sold since that act upon the supposition that the law was such.

The Plaintiff had a verdict and judgment.

Note. — Upon a case circumstanced exactly as this, tried at Halifax three or four terms ago, between *Baker*and *Ashe,*Judge *Williams*delivered the same opinion, or to the like effect, as Judge *Macay*now gave. And the Plaintiff recovered upon the same grounds as the Plaintiff in this case now recovered. Judge *Macay*being then upon the. bench, but not giving an express opinion himself — having now given it, whereby the opinion of a majority of the Judges upon this point being obtained, it is supposed it may now be received and cited as law — accordingly this case, as being of great importance, and affecting perhaps much real property in this country, has been reported, here.

*85Note.—Vide A*ct of*1714, *Rev. ch.*226—1789, *Rev. ch.*311—1791, Re*v. ch.*352—1806, *Rev. ch.*704.—And see the cases of *Spaight*v. *Wade’s heirs,*2 *Murph.*295, and *Tremble v Jones’s heirs,*3 *Murph. 579,*which are constructions upon the two first mentioned Acts.— The design of all these enactments is, that after it has been judicially ascertained that the personal representatives have no assets, or not sufficient to satisfy the. Plaintiff’s demand, the heir or devisee shall have notice by *sci. fa.*to come in and contest the fact of lands descended, or may make up a collateral issue with the personal representatives and have the question of assets again enquired into. The heirs or devisees, if they sell the land before action brought or process sued out against them, become personally liable for the value of the lands : but if the lands continue in the hands of the heirs or devi-sees, or are fraudulently sold, the lands themselves only are liable to the execution. The lands, if *bona fule*sold before the *sci. fa.*it seems would not be liable, and in such, the creditor must look to the personal responsibility of the heir or devisee.