
    JANUARY TERM, 1844.
    William B. Davis, Adm’r. &c. et al. v. William M. Helm.
    An execution bearing teste after the death of the defendant, will be quashed on motion.
    If the defendant die after judgment, and before the issuance of an execution, the judgment must be revived by scire facias, before an execution can issue.
    If an execution be issued, and returned without a levy, and the defendant die before the issuance of a second, a revival of the judgment is necessary before another execution can be issued.
    When a judgment is rendered against several defendants, and one dies before an execution is issued, the execution must issue against all, but can be levied only on the property of the survivors.
    Error from the Circuit Court of Wilkinson county.
    The material facts in this case are concisely stated in the opinion of the Court, and are fully set out in the argument of Mr. Gordon.
    
      Farish and Simrall, for plaintiff in error.
    We maintain that an execution cannot be sued-out after the death of a defendant, and satisfied out of his goods in the hands of his legal representative, without scire facias to revive the judgment.
    
      Scire facias is necessary in two classes of cases. 1st. Where an execution is not issued within a year and a day ; 2d. Where the defendant has died before the writ was issued. In the first case, the law presumes the debt has been paid or discharged ; in the second, a new party, a stranger to the record, to wit, the executor or administrator, is to be affected by the judgment.
    Previous to the statute of 'Weslm. 2d, 13 Edw. 1st, if the plaintiff in a personal action laid by for a year and a day after judgment, he was compelled to bring debt upon his judgment,* and no scire facias was issuable. But that statute gave the remedy as. in real actions. 2 Tidd, 1102. Scire facias is expressly given by our statute, Rev. Code.
    The Common Law theory is, that an execution is ordered by the Court in term time to be issued, though in fact no such order is ever made. And therefore, in England, if a defendant be living at the time this order is presumed to be made, then he is a party to it. But if he die before the teste of the fi. fa., then it went out against a party not in esse, and is irregular. (2 Tidd, 10.00, top paging.) The death of either party to the record stops the proceedings, if before judgment; then the proper parties must be brought in. If either party, plaintiff or defendant, die before the teste of the^i. fa., a scire facias must issue, to warn in the proper party. 1 Salk. 322. (Authorities before cited.)
    The rule upon this subject is well defined by this Court, in Smith Sf another v. Winston & Lawrence, 2 How. 604. “ When a new person is to be benefitted or charged by the execution of a judgment, a scire facias is necessary to make him a party.” The rule, in nearly the same language, is laid down in 2 Saunders, Rep. 72, (1).
    When a plaintiff dies within a year and a day after judgment, his personal representative cannot have execution against the defendant, without scire facias. 2 Saund. 6, note (1). This is an instance, where a new party is to be benefitted by the judgment. In the same note, it is said, if the defendant dies, then the scire facias must be against his heir terre tenants, or administrator, as the case may be. This is an instance of a new party to be charged by the judgment. The prayer of the scire facias is quare execu-tio fieri, non debct. It is considered in the nature of a new action, and the administrator may reply a release of all actions, a discharge, &c. (Ibid.)
    
    
      
      Wilson v. Kirkland, Walker, Rep. 155 ; Hicks’s Administrator v. Moore, ib. 66 ; Hubert v. Williams, ib. 174, expressly maintain the position we have taken. From these adjudications we do not think it longer an open questioñ in this State. This Court has never given an intimation of a disposition to unsettle these adjudications ; but clearly, on the contrary, recognize the principle in the case referred to in Howard. The practice of the Courts for the last twenty years has been conformed to them.
    The death of the defendant, at Common Law, absolutely abated the suit. To obviate the inconvenience of commencing a new suit against his administrator, the fiction of relationship was adopted; so that upon a warrant of attorney to confess judgment, judgment could be entered up in vacation, and be made to relate back to the first day of the preceding term, although in the mean time the defendant may have died ; so as thereby, in contemplation of law, it would be rendered ..against the defendant in his lifetime. By the same sort of relationship, an execution could be tested as of the first day of the last term, though the defendant be dead ; and this fictitious relationship gave it the legal effect of being, in fact, sued out in the defendant’s lifetime. 3Ld. Raym. 858, Oades v. Woodard ; 1 Salk. 87; 1 Ray, 244. In 7 Durn. & East, 16, top paging, the whole doctrine of testing and relating back of executions and judgments is examined by Lord Kenyon. See also 1 Saunders, 219 /, Wheatly v. Lane ; in this case it is distinctly stated, that the only case, in which an execution can be levied of the goods of the intestate in the hands of his administrator, is where the date of the judgment and teste of the execution can be fixed in the lifetime of the intestate.
    It will be seen, by reference to these cases, that the goods of the intestate have been seized in the hands of the administrator by an execution actually tested in the intestate’s lifetime ; and the reason given by Tidd, before cited, is, that all the parties to the writ, at the date of its teste, 'were living ; in other words, there was authority for issuing it, and the defendant was bound to obey its precept. '
    We have been unable, from an elaborate research in the English books, to Undone case of an alias fi. fa. tested after the death of the defendant, that could be satisfied out of the goods of the deceased, in the hands of his personal representative. In 4 Comyns, Dig. 248, note (G), the annotator, after examining the authorities, uses this'^language. “ Since a judgment has relation to the first day of the term in which, or preceding the vacation in which it is signed, if a defendant die in term time, and judgment is regularly signed afterwards, either in that term or the following vacation, it has relation back to a day before his death; and since an execution may be taken out in term time, or in vacation, tested as of the first day of the term, and as an execution taken out after the defendant’s death, if tested before, is regular, it follows that a ft. fa. may be sued out within the term in which judgment is signed, or in the following vacation, tested as of the first day of the term, and therefore of a day previous to the death, and goods in the hands of the executor or elsewhere taken under it.”
    In investigating the regularity of the execution, the only inquiry made in these cases is, was the execution sued out and tested in 'the defendant’s lifetime, or after his death ; and the time of the death is compared with the teste of the ft. fa., and it is clearly indicated, that an execution tested after the death, is as clearly erroneous as a judgment pronounced after the death.
    Let us see how this question stands by the laws of the State. Judgment is rendered on a particular day of the term, and has the effect of a judgment from the day of its rendition. The execution is issued by the clerk in vacation, except in a particular case, and it is made his duty to indorse upon it the day he issued it. The plaintiff is required to mark out the day he received it; so that it may appear, either that he had, or had not, sufficient time to obey its precept.
    Our courts have never adopted the doctrine of relationship. Such a doctrine would directly contravene the whole policy of our statutes on the subject. The ft. fa. has virtue, as such, from the day it emanated from the proper office. Suppose the defendant dies the last day of the term, and the judgment is rendered the second, and in vacation the ft. fa. issues ; the question, under our system of law, is, did the ft. fa., in fact, emanate before or after the death ; if after the death, then, according to the principle of the English cases, it was sued out against a party not in esse. But in England the death, working a stoppage of the proceedings, is obviated by referring the teste of the writ to the first day of the term, so as to bring it within the lifetime of the party.
    The practice in England is, to make all judgments, entered up either in vacation or term time, judgments as of the first day of the term. Our courts inquire into the fraction of a day in settling rights which may be affected by the judgment. In addition, our statute requires all writs, of every description, to be tested as of the first day of the last term of the Court out of which they issued ; so that a ji. fa. is tested of a day anterior to the date of the judgment ; so that it is "submitted, whether the defendant, in this State, must not be living on the day the fi. fa. is sued out.
    It is immaterial, so' far as the case under consideration is con-’ cerned, whether the teste of the writ, or the day it issues, be taken as the proper time ; for the defendant, Moore, departed this life the 29th June, 1839, little more than a month after the date of the judgment; whereas the execution, which was moved to be quashed, was tested the first day of the October term, 1840, and issued the 12th December of the same year, both long after his death. The Court is reférred to 16 Mass. 190, Hildreth v. Thompson, as clearly illustrating this view of the subject. The learned C. J. Parker, in delivering the opinion of the Court, says, that the doctrine of relationship had never obtained in that State, but that the practice of dating executions on the day that they issue, is regular and proper. He further adds, “ We know of no authority in England or this country, for issuing an execution after a party to the judgment is dead, and when that fact shall be made to appear by comparing the time of the death with the writ of execution.” Styrmuts v. Brooks, 10 Wendell, 210, 212, sustains the case in Mass., and denies that an execution can take the goods of the administrator, without scire facias, if issued after the death of the intestate. See 2 Arch. Pr. 88. 17 John. 271, is equally clear.
    But it may be said,- th,at an execution is continuous, and that if one sued out within proper time, it may be renewed from time to time, until satisfaction. According to the old practice, the execution was continued from term to term by entry upon the roll. But this practice is now relaxed, and where one has issued within the year, the courts will presume that it has regularly been renewed from term to term ; and this is the sense in which a fi. fa. is said to.be continuous. Jackson v. Styles, 7 John. 391.
    It may be said, too, that there can be but one execution of a judgment, and that if the plaintiff sues out one execution in the defendant’s lifetime, all subsequent issues are considered as but one execution. At Common Law, the plaintiff might enforce his judgment in several ways, —by a capias ad satisfaciendum, by a fi. fa. or by an elegit, — but he could sue out but one of these writs at the same time; and it is in this sense, that there can be but one execution.
    There can be but one operative execution in existence at the same time. 5 How. 629. And after the return day of the execution, it is a dead letter, it is functus officio, and anything done under it is without authority. Planters' Bank v. Scott, 5 Howard, 249.
    An alias fi. fa. is wholly independent of the first writ; it is' a second precept, based upon the judgment, and is regular or irregular, according to the state of facts, that exist at the time it issues, and not as they may have been when the first issued.
    Suppose the return of nulla bona against a feme sole defendant, and she afterwards marries, the case in 17 John, would require a sci. fa. against the husband, as a new party to be affected by the judgment ; yet the first fi. fa. was perfectly regular. But this new fact wholly changes the attitude of the case ; the same cause makes the sci. fa. just as necessary in the case of the death of the party.
    C. P. Smith, one of the defendants, was living at the time of issuing the execution proved to be quashed. Where there are one or more defendants, and one dies, there is but one casé in which the plaintiff can run his execution without sci. fa., and that is, by suggesting the death of the deceased defendant on the roll, or the record, and take out execution against the survivor. 2 Ld. Raym. 808 ; 1 Salk. 319. Had this step been taken, these authorities would have authorized a levy upon Smith's property, but not on Moore’s, the deceased defendant. Such suggestion is required, that the sheriff may be notified whose property he can seize.
    
      It never has been contested, that a sci. fa. is absolutely necessary against the heir and terre tenants ; and the reason given is, that they are strangers to the judgment against the ancestor, and must be warned to show cause why their lands shall not be liable to the execution. An administrator has as full and complete a title to the personalty, as the heir has to the realty ; the only difference is, that the foraier gets his title by the appointment of the proper tribunal ; the latter acquires his by inheritance. In law, the administrator is the legal owner of the goods and chattels. There is no privity between the heir and the administrator ; so that if you wish to subject the chattels to execution, there is no need to warn the heir. It is submitted, then, that the reissue for the sci. fa. is as strong for the administrator, as for the heir. The judgment creates a lien for its satisfaction upon both the lands and goods of the defendant ; both are equally bound.
    The Court erred in refusing to receive the testimony of Rad-ford. The testimony was not to contradict by parol the sheriff’s return, but to show that, in point of fact, the execution was returned levied, and that that levy was, in fact, afterwards erased by the sheriff. The authorities in Virginia show that a levy can be proved by parol.
    
      George H. Gordon, for defendant in error.
    The material facts of this case, as they appear of record, are as follows. On the 7th of May, 1839, Helm, the plaintiff below, recovered a judgment against Henry A. Moore, Daniel Woodward, and C. P. Smith, for five thousand three hundred and ninety dollars. On the 11th of June following, an execution of fieri facias was issued and delivered to the sheriff, returnable to the October term of said Court, 1839. On the 28th of June of that year, Henry A. Moore, one of the defendants, died. After Moore’s death, the sheriff made the following return on the execution in his hands : “ Jfot levied by order of plaintiffdo October term, 1839. William T. Lewis, sheriff.” On the 20th of December, 1839, an alias writ of fieri facias was issued and delivered to the sheriff against all the defendants in the original judgment, returnable to the April term of 1840, which execution was suspended by a writ of super-
      sedeas, obtained by Woodward, one of the defendants. At said April term, 1840, a motion was made by Woodward to quash this execution, for several reasons stated in the motion ; but the two principal grounds relied on, were, that the execution had been irregularly issued, without a scire facias to make the personal representatives of Moore, the deceased defendant, parties ; and that the execution of the 11th of June had been satisfied by a levy on sufficient personal property to satisfy it. Upon the hearing of this motion, at the October term, 1840, of said Court, the execution was quashed, upon a ground suggested by the Court, which is stated in the judgment quashing the execution, that there was no judgment upon which the execution emanated, leaving the other grounds set forth undecided. Then, on that day, to wit ; on the-day of October, 1840, the Court ordered a judgment to be entered in the case nunc pro tunc, as of the 7th of May, 1839.
    On the 12th of December, 1840, another writ of fieri facias was issued against all the defendants, and delivered to the sheriff, who levied the same on certain property of the deceased defendant, Henry A. Moore, in the hands of William B. Davis, (then) his administrator de bonis non.
    
    On the 1st of February, 1841, William B. Davis, Moore’s administrator, filed his petition, and obtained a writ of supersedeas, suspending the levy on the property of his intestate. On the 15th day of April, 1842, the administrator of Moore (William B. Davis) moved the Court to quash the execution, which had been levied as above stated, for a number of reasons set forth in the motion, but especially upon the two grounds relied on by his predecessor, Daniel Woodward ; 1st. That the execution of the 11th of June, 1839, had been levied on sufficient personal property to satisfy it; and '2dly. That no scire facias had ever been issued against the personal representatives of Moore, to have execution against his property in their hands. On said 15th day of April, 1842, after a full investigation of this case, the Court decided, that the motion of Moore’s administrator de bonis non, made to quash the execution levied on the intestate’s property in his hands, be overruled, and that the plaintiff Helm have execution of his judgment. From this judgment of the Court below, Davis, the plaintiff in error, has brought the present writ of error.
    
      Although there is much prolixity and incongruity in the record, as made out in this case, yet it is conceived there are but two principal questions which require especial consideration. 1st. Under our peculiar statutory provisions, respecting the lien of judgments, was it necessary, after Moore’s death, and after the execution, then in the sheriff’s hands, had been returned without a levy, to run a scire facias against his personal representatives, to have execution against the intestate’s property in their hands ? 2dly. Is it competent to prove by parol, upon a mere motion, that the sheriff levied an execution on property, when he has returned it not levied ? In answer to the first of these questions, we conceive it to be a settled principle, that where a lien is given by an express statutory provision, as by a judgment at law upon the property of a defendant, upon entering up the judgment in Court, the lien thereby created becomes a permanent right in the judgment-creditor, and being “ continuous,” will remain unimpaired, unless it be postponed by some act of the plaintiff. If this position be true, we apprehend it will not be a difficult task to show, that, where a judgment has been entered up in the lifetime of a defendant, in this State, and execution has issued on it, and he dies, alias executions may issue after his death, and proceed to satisfaction without a scire facias. By our statute, How. & Hutch. Dig. 621, s. 43, it is declared, “that in all cases the property of the defendant shall be bound and liable from the time of entering up the judgment.” This express provision of the statute, we conceive, gives the judgment-creditor an undoubted right to be satisfied of his judgment out of the defendant’s property, without regard to any event that may occur respecting the person of the defendant. The statute refers to the property, and not to the person of the defendant; and it is an established principle, both at law and in equity, that the death of a party, even in cases of ordinary liens, will not affect such liens, if they have fully attached in the lifetime of the party. 2 East’s Rep. 227, (In arguendo, 10 Peter’s Rep. 607, 608;) 1 Swans. Ch. Rep. 84 ; Montague on Lien, 61.
    By the Common Law, the property of the defendant was bound from the test of the writ of execution, and if an execution on the judgment could be tested in the lifetime of the defendant, no scire facias was necessary ; the plaintiff could proceed to satisfaction in the same manner as if he were living. 6 Bac. Abr. Sci. Fa. c. 4 ; 1 Mod. Rep. 188 ; 1 Bos. & Pul. Rep. 571,; 7 Term Rep. 22, ñ. (c) ; 2 Arch. Prac. 92. This proceeds upon the ground, that the property of the defendant was bound and liable from the test of the writ, which being tested in the defendant’s lifetime, created and fixed a lien upon it sufficient to satisfy the debt, and thereby, by operation of law, secured the property to the creditor for the satisfaction of his judgment; and that the execution was merely an order of the Court directed to the sheriff, commanding him to consummate the right thus created and fixed by law in the lifetime of the defendant. 10 Wend. Rep. 211, 212. This is the principle of the Common Law in reference to the question under consideration. By the English statute of 29 Charles 2d, c. 3, s. 16, the Common Law was changed, so far as to make the property of the defendant bound and liable from the time of the delivery of the execution to the sheriff; and under that statute it is settled, that, after the delivery of the execution to the sheriff, if the defendant dies, the proceedings will go on in the same manner as if he were living, provided the execution be tested in his lifetime.
    And under a similar statute (indeed it is said to be substantially the same as the English statute of 29 Ch. 2d), the Supreme Court of Alabama, after much deliberation, decided, that if an execution was issued and delivered to the sheriff in the defendant’s lifetime, and was regularly returned, the plaintiff could issue alias executions after his death, and proceed to satisfaction in the same manner as if he were living, without a scire facias, or other proceeding. Collingsworth v. Horn, 4 Stew. & Porter’s Rep. 237 , 244 to 251.
    This decision is based upon the ground, that the lien created by the delivery of the execution to the sheriff in the lifetime of the defendant is continuous, and, not being interrupted by any act of the plaintiff, remains perfect until the judgment is satisfied. See also 3 Dessaus. Rep. 539. And we think it is clear, that no act of the defendant,can affect the judgment lien of the plaintiff on his property. A supersedeas, or injunction, obtained by the defendant, will not affect the lien. 2 Burr. Rep. 660 ; 1 Salk. Rep. 323, n. (a); Smith v. Everly, 4 How. Rep. 185. Thus, then, we are brought to the conclusion, that if the defendant’s property is made liable, and a lien is fixed upon it by express law in his lifetime, which is continuous (unless displaced by some act of the plaintiff), a judgment entered up, and execution issued upon it in the lifetime.of the defendant, may proceed to satisfaction after his death, in the same manner as if he were alive ; that it may be levied on his goods and chattels in the hands of his executor or administrator, without a scire facias. 7 Term Rep. 22, n. (c) ; 1 Bos. & Pul. Rep. 571; French v. Earl of Chelsea, 3 P. Wms. Rep. 399, n. (e) ; Col-lingsioorth v. Horn, 4 Stew. & Porter’s Rep. 237 (quotia supra).
    
    Again, there is a decision made by the Supreme Court of the United States, under a statute of the State of Missouri, giving a lien by judgment precisely similar in principle to our act of 1824 ; and in delivering the opinion of the Supreme Court in that case, Chief Justice Marshall says : “ There is no expression in the law of Missouri which can suggest a doubt on this subject. By that law, judgments are to be a lien on all the lands of the debtor. This lien commences with the judgment, and continues for five years. The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsically defective, or be displaced by'some act of the party holding it, which shall postpone him in a court of law or equity. The single circumstance of not proceeding on it until a subsequent lien has been obtained and carried into execution, has never been considered such an act.” Rankin & Schatzell v. Scott, 12 Wheat. Rep. 178, 179. It is also laid down in the same case, that “ A statutory lien is as binding as a mortgage, and has the same capacity to hold the property, so long as the statute preserves it in force.” Ibid. 179. By the statute of Missouri, under which this decision was made, the lien is declared to continue for five years. Ibid. 78. By our law, the lien will continue during the continuance of the judgment, which is twenty years. (See Rev. Code,p. 185, s. 9.) And further, our act of 1824 creates a lien, by entering up the judgment upon all the property of the defendant, both lands and personalty. We therefore think, that, where judgment is entered up under this act of 1824 against a defendant, and execution is issued on such judgment in his lifetime, and he dies, and it is returned without satisfaction, alias executions may issue, and may be levied on the intestate’s goods and chattels in the hands of his personal representatives, without a scire facias. Although the converse of this position is contended for with much apparent earnestness on the other side, yet they do not adduce any authority to.support them, except a mere dictum of this Court in the case of Smith & Montgomery v. Winston & Lawrence, 2 How. Rep. 604, which we think altogether inapplicable to the case at bar, and two or three cases decided by the late Supreme Court of .this State, very imperfectly reported in Walker’s Reports. We shall only notice one of these cases particularly, to wit, that of O. C. Williams v. Hubert & Hubert, p. 174 ; and we think it will be seen, upon a very slight examination of that case, and the authorities therein cited by the learned Judge who delivered the opinion, that he is not sustained by the authorities he quotes, but that the very reverse of the conclusion he comes to is established by those authorities. In delivering the opinion, he quotes the language of Lord Kenyon, in the case of Heapy v. Paris, 6 Term Rep. 369, where he says : £t Execution issuing after a party is dead, and before revival, is irregular; and if we suffer such executions to stand, great injustice may be done to the rights of creditors ; the moment a party is dead, the rights of his creditors1 are fixed. A judgment-debt is of a superior nature, and when docketed is to be paid before simple contract debts.” Now we cannot perceive in what way this quotation from Lord Kenyon’s opinion could be made to apply to the case that was then under consideration before the Supreme Court. The case does not present a question of two creditors contending for precedence as to their claims, although it would seem that the learned Judge was laying down the general law in reference to the claims that might exist against a decedent at the time of his death, without taking into view the preference lien given by our statute in favor of the judgment-creditor ; for, in his opinion, he further quotes the language of Lord Kenyon, in his opinion in the case referred to, where he says, “ A judgment-debt is of a superior nature, and when docketed is to be paid before simple contract debts ; the defendant’s legal representatives could have no notice of the judgment, and might be paying debts of an inferior nature, which, upon suggestion of a devastavit, would render them liable, &c.” But it would seem, however, that this learned Judge of our late Supreme Court, who has drawn so largely upon the opinion of Lord Kenyon, in the case of Heapy v. Paris, is not the first among the learned in the law who misconceived the true points decided in that case ; for in the case of Bragner v. Langmead, 7 Term Rep. 20, where this case of Heapy v.- Paris was quoted, and relied on as conclusive authority, in a case somewhat similar in principle to the case at bar, the counsel who argued the case fell into the same error, and in delivering the opinion of the Court, Lord Kenyon takes special occasion to re-examine and fully explain the decision in the case of Heapy v. Paris. He clearly draws the distinction between the two cases, and shows that the execution, in the case of Heapy v. Paris, which was moved to be quashed, was tested after the defendant’s death, and consequently there was no lien which could be located in his lifetime, and that, therefore, the rules of law, as laid down in that case, were by no means inconsistent with the principles that must govern the decision in the case of Bragner v. Langmead, then before the Court. In the latter case, the execution was tested in the lifetime of the defendant, thereby fixing the lien on his property before his death; and in the argument of the counsel against the motion to set aside the execution, and, in the opinion of Lord Kenyon, it is clearly shown to be law, that if the lien on the defendant’s property was fixed in his lifetime, and remained unimpaired, no scire facias would be necessary to have execution aga'inst his property in the hands of his executor ; so we are constrained to believe, that the cases referred to in Walker’s Reports, were decided under a misapprehension of the law, and cannot be regarded as authority in the present case. In reference to the second question, we conceive it to be a settled principle of law, that where the sheriff has made a return on process, parol testimony cannot be received to contradict or vary that return ; that it becomes a matter of record, and proves itself, except where the sheriff, upon leave of the Court, may amend his return according to the facts, if necessary. 7 American Common Law, 255 ; Metcalf v. Gethel, 6 Conn. Rep. 4t)0, 404. The return of the sheriff cannot be contradicted or falsified except he is a party to the proceeding ; he must be proceeded against for a false return, in order to permit his return to be questioned. Gould’s Pleading, 289 ; 2 Strange’s Rep. 813 ; 7 Comyn’s Dig. Return G, p. 288 ; 1 Salk. Rep. 265.
    
      Quitman and M‘Murran, on the same side.
    We have but little to remark, on behalf of W. M. Helm, the defendant in error, in this case, in addition to the written argument of Col. Gordon. He has argued fully and at large the point discussed by the counsel for the plaintiff in error, as to an execution issuing regularly after the death of one of the parties, where the law, as in this State, makes the judgment a lien upon all the real and personal property of the defendant. Among the other authorities cited, that of the case of Collingsworth v. Horn, 4 Stewart & Porter’s (Alabama) Rep. 237, 250, 251, is directly in point, and most clearly sustains our position. ' But we will not, in a brief, repeat the argument and authorities of our colleague ; but will state another ground, which we think conclusive against the motion made in the Court below to quash the execution.
    The ground of the motion (as well as the written argument of the opposite counsel) is, that the defendant Moore was dead when the execution issued. Now admit, for argument, that this be a good ground to supersede the execution, it is not a ground to sustain a £t motion to quash that execution.” No execution can be quashed on motion for any matter in pais. It may be quashed for irregularity upon its face ; it may be quashed when the records of the Court show there is no such judgment as the one upon which it may have emanated ; but for no other cause can the fi. fa. be quashed on motion. For in the cases mentioned, where a motion is sustainable, the error or ground of the motion appears on the-face of the execution or of record, and there is no fact to be ascertained or disputed. But in the motion, in this case, the ground relied on is a matter in pais, the question of the death of the party ; and involving an issue, which there is no mode of having made up and tried on this motion. Besides, the motion is made by a third person, a stranger to the record ; for although he alleges that he is administrator de bonis non, he is not made, by petition, scire facias or otherwise, a party to the record. Nor can he be, for one of the defendants, Judge Smith, is still living, and the judgment, according to the argument of the opposite counsel, survives against him ; and at least until a return of nulla bona against Judge Smith, no scire facias could issue to revive against the administrators of Moore or Woodward, according to the doctrine of the opposite counsel. Why, the execution issued regularly ; it could have issued no other way. Suppose the judgment were revived against the administrators of Moore and Woodward, could an execution issue against these administrators, and Smith, the survivor ? .Surely not. It would be quashed.
    Again, the motion is also to quash the levy. This ground is not insisted on in the argument. The ground of this part of the motion is, that a levy had been made by a prior execution, sufficient to satisfy the judgment. But it is shown, that this indorsement of a levy was set aside, erased, and altered, by the order of the Court, upon reasons set forth in the record, and which were sufficient, in the opinion of the Court upon that occasion, to authorize the sheriff to change his return, so as to show that there was no levy. Now when this matter came up directly, the plaintiff in the execution might have contested it at the time ; but the cause having been then disposed of, and the correction made accordingly by the sheriff, the question cannot now arise on this motion, to quash the execution, and that made by W. B. Davis, administrator de bonis non of H. A. Moore, as appears by the record, and said administrator a stranger to it.
    We conclude, upon every ground, that this summary motion to quash, made by an administrator de bonis non, who has never been regularly made a party to the record, was properly overruled by the Court below. If the administrator could have any relief, it must be by an injunction from a Court of Chancery, enjoining a levy on the property of his intestate. We feel satisfied that this Court will not extend the remedy by motion, a summary and imperfect proceeding, to cases which are not embraced by well adjudicated decisions, and to one who is in no wise a party to the record in this case, although he may be the representative of a deceased defendant, and might become or be made a party by the ordinary and regular proceeding for that purpose.
   Mr. Chief Justice Sharkey

delivered the opinion of the Court.

On the 7th of May, 1839, Helm recovered a judgment against Henry A. Moore, Daniel Woodward, and C. P. Smith. On the 11th of June, an execution issued, and was placed in the hands of the sheriff, and on the 28th of June, Moore died. This execution was returned without a levy, and on the 20th of December, an alias fi. fa. issued, which was afterwards quashed. On the 12th of December, 1840, another execution was issued, and levied on the property of Moore ; and Davis, his administrator, moved to quash it, because it had been irregularly issued ; which motion was overruled.

The principal ground relied on, for reversing the judgment of the Court, in refusing to quash the execution, is, that it issued without a scire facias to revive against Moore’s administrator, and the question is, whether, under the circumstances, a scire facias was necessary.

The precise point, now under consideration, was several times decided by the former Supreme Court, and we had supposed it to be a settled question. Wilkinson v. Kirkland, Walker’s Rep. 155; Hicks’s Administralor v. Moore, ib. 66; Hubert v. Williams, ib. 174. The practice has no doubt conformed to these decisions, but their' authority is now called in question, and we are asked to adopt a different rule of decision. We are much averse to this interruption of settled questions ; but apart from the importance of adhering to former decisions, it is by no means clear that we should be justified, on principle, in departing from the rule of these decisions. On the contrary, we believe the decisions are sustained ; but as the question has been elaborately argued, it is proper that we should do something more than give them a mere passive recognition. As an open question, it would certainly be attended with some perplexity in the solution, and perhaps leave some ground for doubt, as to the correctness of the result.

In several of the States of the Union, it seems to be considered necessary, that all judgments, where parties have died before execution, should be revived for or against their legal representatives ; but whether this is by virtue of some statutory provision, or by the Common Law, or by virtue of the force of the English statute, we are not informed.

To revive judgments in real actions, when it becomes necessary to revive, the scire facias is a Com/non Law writ; but in personal actions, it was given by the statute of Westm. 2, 18 Edw. 1, for the sake of establishing uniformity in proceedings, and to prevent the delay and expense of a new suit on the' judgment, which, by the Common Law, was the only remedy. 7 Bacon, 130 ; 2 Saunders, Rep. 6, n. (1) , 2 Tidd’s Practice, 1102. As the same reasons, to a very great extent, exist in favor of reviving judgments in both descriptions of actions, it is rather remarkable that our statutes are not more explicit in their provisions. Still we think} by a liberal construction in favor of a remedy, they go far to sustain the decisions of the Supreme Court in the cases referred to. By reference to some of the statutory provisions, they will show, as we think, that such construction ought to be given them. Our provision is, that on writs of scire facias for the renewal of judgments, no judgment shall be rendered on the return of two nihils, unless, &c. ; and such scire facias may be directed to any county in the State where the defendant may reside ; the succeeding section directs the mode of service. H. & H. Dig. 583, sec. 26, 27. Here, we perceive, the legislature had in view the mode of reviving judgments by scire facias; but whether that body had in its mind the use of this writ in real actions only, or whether its indiscriminate use in all actions was contemplated, is only to be gathered from inference. It is scarcely probable that the legislature thought only of its use in real actions, and that the parties to personal actions should be left to the Common Law remedy on the judgment. We must remember, that we have but very few real actions triable in a court of Common Law jurisdiction, if we have any.

The 29th section of the same statute provides, that, if either party die before final judgment, his executor or administrator may be brought in by scire facias, to prosecute or defend the suit. The 31st section provides for bringing in the heir or devisee, if either party to a real action shall die before judgment; and the 32d section provides for rendering judgment, if either party should die between 'verdict and judgment, and for bringing in the representative, if either party die before verdict. These several provisions are taken from the English statutes ; and besides these, the scire facias is the appropriate remedy in other cases corresponding to its use in England.

These statutes seem to have been adopted in view of the English law, in its general application of'the scire facias. Several of them profess to apply and regulate it, as an existing remedy, in the cases specified. In England, we know, it was the universal method of bringing in a new party, either before or after judgment; the first “provision, above referred to, seems to have contemplated its use in the same way here. In England it was necessary, if either party died after judgment, and before execution, that the judgment should be revived, and the scire facias was the proper process to bring in the new parties. 2 Saund. 72 m; 2 Tidd, 1118 ; 3 Bacon, 404. Here, also, judgments may be revived, and as no other writ is given, it would seem to follow that this is the proper one. The rule is, that wherever a new party, who was not a party to the judgment, is to be charged or benefitted by the execution, it must be revived for or against him. The reason of this is, that he may have an opportunity, if a defendant, of pleading a release ; of showing payment, or any other reason why the execution should not run. An administrator or executor falls within the reason of this rule. To them it has always been held to apply : the bare possession of property is sufficient to entitle them to their day in court. But.there'is an exception to this rule. If the execution emanated in the lifetime of the defendant, or if it even bears teste in his lifetime, then a scire facias to revive is not necessary. The counsel for the defendant in error insists that this case is within the exception. It is assumed, that the reason of the exception was because a lien had attached in the lifetime of the defendant; and as, by our law, a judgment is a lien, hence it is concluded that a scire facias was unnecessary. In support of this position, a decision from Alabama is relied on, which does support the view taken by counsel. This position, however, we do not think sustainable. We think that the decision in Alabama, and also the argument of counsel, based upon it, are predicated on a misconception of the reason for the exception in the English rule. We apprehend that the question of lien or no lien had no influence in dispensing with the scire facias.

Why is it, that a new party must be brought into Court ? It is, that he may have an opportunity of defeating the execution, by showing payment, release, or any other matter in defence. Does not this reason hold as well, when there is a lien, as when there is none ? The answer must be in the affirmative. Because there was a lien before the defendant’s death, are his representatives thereby precluded from showing a discharge or payment ? Has a judgment any more sanctity, because it operates as a lien ? Surely not. The reason, then, for bringing in new parties by scire facias, is as strong where there is a lien as where there is none. The exception, then, did not originate out of a failure of the reason of the law. Why then was it, that in England no sci. fa. was necessary, when the execution emanated in the lifetime of the defendant, or even bore teste before his death ? Because, say the authorities, as the defendant could say nothing against the execution, there is no reason to believe that his representatives could, and it is therefore unnecessary to summon them. 7 Bacon, 138. And why is it assumed, that the defendant could say nothing against the execution ? The answer is found in the presumptions of the law, and it is this ; —the execution is an entire thing ; the law presumes that it issues, and bears teste, instantly after the rendition of judgment, and that the sheriff begins immediately to execute ; and that, having begun tb execute in the lifetime of the defendant, by seizure of property, the conclusion is, that he had nothing to urge, or he would have stopped the execution immediately. Hence the books say, that as the defendant, in his lifetime, had nothing to say against it, it is not to be supposed that his representatives have. This legal presumption is sometimes sustained by a fiction ; as, if the defendant die before the execution issues, but after the time of which it is to bear teste, still the law looks upon it as having issued imm'e-diately after judgment, and determines the rights of parties accordingly. At Common Law, the goods were bound from the teste of the execution, it is true, but we do not find the English authorities giving this as the reason for dispensing with the sci. fa., nor is it the true one, as is manifest from several additional considerations. The scire facias, at Common Law, was used only to revive judgments in real actions, because it was the only means of getting possession of the realty, as no action could be sustained on the judgment. In such actions, the judgment was of higher dignity and more conclusive than a lien ; it operated as a final determination of the parties’ rights. Surely then it was equivalent to a lien ; still, to revive such judgment a sci. fa. was necessary ; then surely it is not dispensed with by a mere general lien. But again ; if the plaintiff sues out an elegit, it binds the land from the rendition of judgment, aqd yet he will not be permitted to sue out an elegit after a year and a day, or after the change of parties, without a scire fa-cias, unless it can be tested as in the lifetime of the defendant. 2 Tidd’s Practice, 1104. This would seem to be decisive of the question, since the effect of an elegit is to make the judgment a lien. The argument, then, based upon the existence of alien as a reason for dispensing with a scire facias to bring in the representatives of a deceased defendant, falls to the ground. We are thus led to sustain the decisions of the Supreme Court; and there is an additional reason which is entitled to much weight. This is very much a matter of practice, and it was competent for the courts at an early day to adopt this method of bringing in parties; and having done so, it should not be disturbed, unless for some glaring intrinsic error.

But it is further insisted, that as one execution issued in the lifetime of Moore, it was not necessary to revive. This point might be urged as to the execution which was in existence at the time of Moore’s death ; but the subsequent executions, which issued and bore teste as of a time after his death, are, as to bis administrator, new executions, subject to the operations of all the reasons which exist in favor of reviving the judgment. If we could adopt the presumption, that execution issued as soon as judgment was rendered, and that all subsequent executions related back to the teste of the first, and were in effect but the same process, then this reason might be forcible ; but we are not prepared to go thus far. Besides, this too was a point involved in the decided cases, and we must consider it as settled.

But a further question arises in this case, which is not entirely free from difficulty ; and that is, Where there are several defendants, and one dies, what is the effect ? The rule seems to be, that in such case there is no need of a scire facias as to the survivors. The execution, however, must issue against all, so that it may correspond with the judgment, and then it may be levied on the goods of the survivors, who can claim contribution. 2 Saund. Rep. 12 h ; 2 Tidd, 1120. As to the survivors, it makes no difference ; they are not new parties. But I apprehend such execution cannot be levied on the goods of the deceased until the judgment is revived. The whole reason of the rule applies to his administrator with all its force, with the additional one, that, as there are other parties, so much greater is the probability, and so much stronger is the presumption, that it has been paid or discharged. On this view of the subject, there was no objection to the execution as against the survivors ; but the levy on Moore’s property was irregular, and should have been set aside. The judgment must therefore be reversed, and the judgment rendered here which should have been rendered in the Court below.  