
    Girard against Heyl.
    
      Philadelphia, Wednesday, March 30.
    fe2^“to pie^" freehold un^are/i^806,heSt th™6" amount of the j udgment, and upon which there is no incumbrance It is not sufficient that the freehold ^uaUothTfmigFent’ ?fter P®?' ing all mcumbrances.
    THE plaintiff obtained a judgment by arbitration on the 22d of last month, for about 110(3 dollars; and the fendant by an entry on the docquet suggested his freehold, to obtain a stay of execution under the act of 21st March 1806, sec. 7. -
    
      Binneit obtained a rule upon the .defendant, returnable J A . this morning, to shew cause why this suggestion or plea should not be struck off the record, upon the ground that the defendant had not such a freehold as was intended by J the law. The law enacts that the writ of execution shall be staid on the judgment, “ if exceeding four hundred dollars, “ twelve months, counting from the first day of the term to “ which the original process issued is returnable, if the “ defendant in the opinion of the Court is possessed of a “freehold estate, worth the amount of such judgment, clear “ of all incumbrances.”
    Hopkins, who shewed cause for the defendant,
    admitted that his only freehold in the county was a house and lot, for which he had given four thousand dollars on the 25th May 1807, and on which there were two mortgages, one of the 16th July 1807, for one thousand dollars, and another of the 16th July 1811, for three thousand dollars; but he offered to prove by a witness in court, that the property was worth. more than six thousand dollars,, and that an offer for it to " that amount had been refused. The counsel then argued, that security to the plaintiff was the only object of the law; and that according to its spirit* the defendant had a freehold equal to the judgment, clear of all incumbrances, or in other words, after all incumbrances should be cleared or paid off. Such had been its interpretation in other courts; and upon any other construction, an incumbrance of ten pounds would take away the privilege from a freehold of ten thousand.
    
      Binney in reply said,
    that no argument could make the act plainer. The defendant claims a privilege, and it is no hardship upon him to be asked to bring his case within the fair and natural import of the law. He must have a freehold clear of all incumbrances, not above, or more than, but clear. Any incumbrance destroys the privilege. If the defendant obtains a stay, what certainty is there that the whole property may not be swept away to-morrow, by an execution upon one of the mortgages. The law intended that the plaintiff should have a security indefeasible by the act of any one. '
    
   Per. Curiam.

The act is toó clear for a doubt. The defendant says he can prove the estate is worth six thousand dollars. How can he prove that if a levari facias should issue, and it should be sold by the sheriff, it would bring half the money? Both the words of the law and its spirit are against the privilege in this case; the words, because the defendant has no freehold clear of incumbrances; the spirit, because it did not intend that the plaintiff’s judgment should be exposed to defeat by sale under a prior incumbrance.

Rule absolute. 
      
       The freehold in question was afterwards sold under a Ji. fa. in this case, and did not produce the amount of the mortgages and interest.
     