
    Rogers v. Denham’s Heirs.
    July Term, 1845,
    Lewisburg.
    1. Judgment against Ancestor — When Binding on Heir. — A judgment against the ancestor in his lifetime, only binds the heir, when it cannot be paid out of the personal estate of the ancestor.
    2. Same — Scire Facias against Heir — Averments.—A scire facias against the heir upon a judgment recovered against the ancestor, need not aver proceedings against the personal representative, without effect. But if no such proceedings have been had against the personal representative, the heir must set up such defence by plea, in the nature of a plea in abatement.
    In March 1843, Rhodom R. Rogers sued out of the clerk’s office of the Circuit Superior Court of Haw and Chancery for the county of Harrison, a scire facias against the heirs of David B. Denham, to revive a judgment recovered against said Denham in his lifetime, in said Court. The scire facias properly recited the judgment, *but it did not aver that proceedings had been had against the personal representative of Denham without effect.
    The writ having been served upon the heirs, they appeared and craved oyer of the record in the writ mentioned, and then filed a general demurrer to the scire facias, which was sustained by the Court, and a judgment entered for the defendants. From this judgment the plaintiff obtained an appeal to this Court.
    Hee and Harrison, for the appellant, and R. Johnson, for the appellees, submitted the cause.
    
      
      The principal case is cited witb approval in Pugh v. Russell, 27 Gratt. 798. See generally, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   ABLEN-, J.,

delivered the opinion of the Court.

The Court is of opinion, that as the object of the scire facias against the heirs, and terretenants, is to give the creditor the benefit of his judgment obtained against the ancestor, and as upon a writ of elegit against the ancestor, the officer is commanded .to deliver all the chattels (oxen, &c. excepted), and a moiety of the lands to the creditor; and if such chattels are sufficient to satisfy the debt, the lands are not extended, the judgment, after the decease of the ancestor, should affect his estate in the same order. The personal estate should be first charged; and the judgment creditor should not proceed against the heir, or ter-retenants, until he has exhausted the same. Alston v. Munford, 1 Brock. R. 266; Brooks’ Abr. title Executions, pl. 28; 14 Viner’s Abr. title Heir, letter K. i* 2. But the Court is further of opinion, that according to the forms of the writ of scire facias, which, in the absence of express authority to the contrary, should be considered on this point as evidence of the law, it is not necessary that the scire facias should aver or suggest that execution against the personal representative has proved unavailing. The objection to the proceeding against the heir, or terretenant, if it exists, is matter of defence which abates the writ, but does not deprive *the creditor of his remedy against the heir and terretenant, if thereafter he should proceed against the personal representative, and execution should prove unavailing. The Court is therefore of opinion, that the defendants here should have set up the objection by plea, in the nature of a plea in abatement, averring the existence of a personal representative, against whom no proceedings had been had; and that the general demurrer to the writ of scire facias should have been overruled. Therefore, it is considered, that the judgment of the Court below is erroneous, and it is reversed with costs. And this Court, proceeding to give such judgment as the Court below ought to have given, overrules the demurrer, and remands the cause, with leave to the defendants to file such plea, in nature of a plea of abatement, or such other de-fence as they may be advised to set up.  