
    Commercial Bank of Manchester vs. William G. Kendall et al., heirs at law of John L. Irwin, deceased.
    A scire facias against the heirs at law. is a proper remedy to subject the lands of the ancestor descended to them, to the payment of an unsatisfied judgment against him.
    And it is no answer to such scire facias, that the ancestor’s estate had been declared insolvent; such declaration of insolvency does not affect or divest the lien of a judgment rendered against the decedent in his life-time.
    In a scire facias to revive a judgment against the heirs at law of the defendant in the judgment, it is not necessary for the plaintiff to set forth in the writ that the judgment had been enrolled ; that, if not done, and material to the defence, should have been pleaded.
    Nor is it necessary, in the scire facias itself, to set forth a description of the lands sought to be subjected to the judgment against the ancestor; but such description should form part of the sheriff’s return on the scire facias; his omission, however, to make such return, will not justify the quashal of the scire facias itself: the court should either have permitted an amendment of the return, or awarded another scire facias, with directions as to the service and return.
    
      In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.
    On the 19th day of January, 1847, the Commercial Bank of Manchester sued out a scire facias in the following words, viz.: “State of Mississippi: To the Sheriff of Yalabusha county, Greeting.
    “ Whereas, by the consideration of the circuit court for the county and state aforesaid, the Commercial Bank of Manchester recovered, against William G. Kendall and John L. Irwin, the sum of three thousand six hundred and thirty-nine dollars and twenty cents damages, besides costs, and on the 14th day of November, 1840, as by the records, &c., appears, yet execution of the said judgment remains to be made; and whereas it is understood in the said court, on the part of the said plaintiff, that the said John L. Irwin is since deceased, to wit, &c., and died seised and possessed of divers lands, tenements, and hereditaments, and premises, as by the suggestion of the said plaintiff we have been given to understand, — we therefore command you, that by good and lawful men of your county you make known to William G. Kendall and [here the heirs’ names are given] heirs at law of the said John L. Irwin, deceased, that they be and appear before our next circuit court, &c., on, &c., at, &c., then and there to show cause, if any they can, why the judgment and costs aforesaid should not be made of the lands and tenements of said John L. Irwin, deceased, if they see fit.
    “Witness, &c.”
    Duplicate writs issued to different counties, for the various heirs, and were returned simply “executed.” At the August term, 1847, the defendants plead in substance that letters of administration, c, t. a., de bonis non, had been granted to Benjamin J. Hicks by the probate court of Warren county on the estate of John L. Irwin, and that court in 1842 had declared the estate insolvent. The plaintiff replied that the lands were not under the control of the administrator; to which the defendant demurred, and assigned as causes of demurrer, l. That the replication did not answer the plea; and 2. That the scire facias was bad in not specifying the lands.
    
      The court below sustained the demurrer and dismissed the scire facias, and the plaintiff sued out this writ of error.
    
      Guión and Baine, for plaintiff in error,
    Cited 7 How. 227; 6 lb. 563; 2 Brok. 381; Steph. PI. §5, p. 421, rule 11; Hutch. Code, 688, § 103.
    
      N. G. and S. E. Nye, on same side,
    Cited 6 S. & M. 333; 7 lb. 404; Dye v. Bartlett, 7 How. 224; 2‘Saund. R. 72, w; lb. 7, n. 4.
    
      E. S. Fisher, for defendants in error,
    Cited North on Probate, 154, 155, 156; Union Bank v. Meigs, 5 Ham. 312.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a scire facias to revive a judgment obtained against the decedent in his life-time, against his heirs at law, upon a suggestion that lands had descended to them subject to the payment of said judgment.

The defendants appeared and pleaded to the scire facias, that administration with the will annexed had been granted of said decedent’s estate, and that the same had afterwards been duly declared insolvent. To this plea, it was replied that the lands of the decedent were not under the control of the administrator, before the distribution thereof, and that they had not been accounted for by him. To this replication there was a demurrer, which was sustained by*the court, and judgment rendered against the plaintiff.

It was decided in Smith et al. v. Winston et al., Executors of Kyle, 2 How. Rep. 601, that a scire facias is a proper remedy against the heirs at law, when there is an unsatisfied judgment against the decedent. It was also decided, in Dye v. Bartlett, 7 How. 224, that the insolvency of an estate does not affect or divest the lien of a judgment rendered against the decedent in his life-time. These authorities are decisive of the present case, and established the right of the plaintiff to have the scire facias, notwithstanding the suggestion of insolvency. The demurrer should have been extended to the plea, and that should have been held insufficient.

Some objections are urged to the scire facias itself, in this, that it does not show that the judgment had been enrolled, ndr specify the lands sought to be charged. It was not necessary that it should have alleged, that' the judgment had been enrolled ; if that had not been done, and it was deemed material to the defence, it should have been pleaded.

As to the other objection, it appears but reasonable to require that the proceedings, in some stage, should point out the lands sought to be subjected. In England, it is not usual to set them out in the scire facias itself, but the sheriff returns the persons whom he summons as heirs or terre-tenants, together with a description of the lands or tenements held by them. Jefferson v. Morton, 2 Saund. 8; Tillinghast’s Forms, 48; Bank of Georgetmon v. Heirs of R. J. Meigs, 5 Ohio, Rep. 314. This description is not contained either in the process, or in the return of the sheriff in this case. We are disposed to adhere to the practice recognized by these authorities, and hence the return of the sheriff was insufficient to authorize a judgment against the heirs. But such insufficiency in the return does not justify the quashing of the process itself, and turning the party out of court.

The sheriff, at the return term, might have been permitted to amend, or another scire facias might have been awarded, with directions as to the service and return.

As the court in this case went too far, the judgment is reversed, and the cause remanded for further proceedings.  