
    Goine’s Heirs vs. Henderson.
    A judgment on scire facias against heirs, upon the debt of the ancestor, against the lands descended, for the debt and for the costs of the scire facias in the court from which the scire facias issued, is proper.
    Our acts of assembly, requiring security for the debt, in case of appeal, do not apply to administrators and heirs.
    When an heir prosecutes an appeal from the county to the circuit court, he is bound, under our acts of assembly, to enter into bond and security that he will pay the costs of the appeal only, should they be adjudged against him in the court above; and if such bond be not given, the appeal should be dismissed.
    Judgment was had against the administrator of Goine. The plea of fully administered having been found in his favour, scire facias was run against the heirs. They pleaded that the intestate was not indebted. Issue was taken, and the plea found against them. The court gave judgment that the plaintiff have execution against the real estate which descended to the heirs of William Goine, for the damages assessed by the jury, and for the costs. From this judgment, the heirs of Goine prosecuted an appeal from the county to the circuit court. At the return term of said appeal, it was moved by the plaintiff below, to dismiss the appeal, because no bond and security had been given for its prosecution. The court dismissed it, at the costs of the guardians of the heirs who were minors. From this judgment, an appeal in error is prosecuted to this court.
    
      J. A. M’Kinney, for plaintiff in error.
    
      R. J. M’Kinney, for defendant in error.
   Catron, Ch. J.

delivered, the opinion of the court.'

The judgment against the lands descended, for the debt and for the costs of the scire facias in the court from which it issued, was proper. The proceeding was not to be avoided by the plaintiff, or the heirs, and the funds, the lands descended, alone is subject to the payment of the debt, and the necessary costs incident to reach it.

Our acts of assembly requiring security for debt, in case of appeals, do not apply to administrators and heirs, because, not the person or property of the defendant is proceeded against, but a fund in his hands. It is expressly so in cases of heirs who are called in as ter-tenants are in England, to show cause why execution shall not be had of the lands descended: nothing is sought against them personally; the judgment is against the thing. To require bond and security of the heir that he should abide by and perform, the judgment on affirmance, would be unavailing: the fund proceeded against is ready to perform for itself; and that execution thereof be had, is a judgment not capable of aid from the heir. That the land 'should pay the debt, or the heir and his securities would 'do it for and instead of the land, is a case not within the words or meaning of any legislative act requiring bond and security for the debt, in cases of appeals.

But as to the costs of the appeal from the county to the circuit court in this case, a different consideration presents itself. The heir prosecutes the appeal as an actor, compels the clerks below and above to perform the duties incident to their stations, for and on behalf of the appellant, who is personally bound to pay the legal fees for the service, just as any other appellant; and he cannot be allowed to prosecute his appeal, without giving bond and security that he will pay the costs, should they be adjudged against him in the court above.

The bond, however, can only he made t,o cover the costs of the appeal. No bond having been given to this' effect, the court correctly sustained the motion to dismiss.

Judgment affirmed.  