
    House vs. Mitchell.
    Ancestor AND Heir. Heir's liability on ancestor's covenant of warranty* All the heirs constitute but one representative of the an cestor, and their lia--bility upon his covenant of warranty, is, in its nature, joint, and it is not made several also, by the act of 1789, c 57.
    SAME. Practice — original writ — process. In an action against heirs on thei*” ancestor’s covenant of warranty, the original writ must be sent out against all, and if it be served on some, and returned non est inventus as to others» the plaintiff must sue out an alias and pluries against those not served, before he can declare against those sued.
    SAME. Pleading) abatement — heirs must be joined. In an action against heirs on their ancestor’s covenant of warranty, if the defendants plead that there are other heirs not sued, a replication — that they reside beyond the jurisdiction of the court, and that those sued are the only heirs who have any thing by descent, is bad upon general demurrer.
    On the 13th of March, 1793, James Allison, by deed of bargain and sale, conveyed to John Johnson a tract of land, by metes and bounds, containing 300 acres, situate in Washington county, Tennessee. In this deed he covenanted for himself and his heirs with Johnson and his assigns to warrant and forever defend the land to Johnson and his heirs and assigns against all persons whatsoever. On the 11th of November, 1797, Johnson conveyed the same land to George House, the plaintiff, by deed of bargain and sale with similar covenant of warranty. And on the 29th of August, 1801, House conveyed the land to Peter French with like covenant.
    After the conveyance by Allison to Johnson, one Ephraim . Murray entered 118 acres of the land as vacant and unappropriated in the office of the Surveyor General of the district in which it lies, and obtained a grant lor it. Upon this title Murray sued French in ejectment and evicted him from the 118 acres. The heirs of French thereupon sued House upon the covenant of warranty in his deed to their ancestor, and on the 5th of August, 1828, recovered judgment against him for $843 44^ cents damages and costs. To recover over against the heirs of Allison, House brought his action of covenant upon the clause of warranty in the deed from Allison to him, in Washington circuit court.
    The capias was issued September 13, 1832, to the sheriff of Washington against James A. Mitchell, Owen Roberts and Jane his wife, and William Collom and Eliza his wife. The sheriff returned the writ executed on Mitchell and Roberts and wife, and as to Collom and wife-, that they were nonresidents. An alias and pluries were issued on the 10th of February and 17th of August, 1834, respectively, to the sheriff of Washington, and returned in the same way as to Collom and wife. House, thereupon, at July term, 1837, filed his declaration against Mitchell and Roberts and wife, as heirs at law of Allison who was grand father of Mitchell and Mrs. Roberts.
    The defendants pleaded in abatement, that besides themselves there were other heirs of the James Allison in the declaration mentioned, and set out their names and places of residence, averred that they were still alive, and concluded— “wherefore, because they are not, nor is either of them named in the said writ and declaration, the said defendants pray judgment of the said writ and declaration and that they maybe quashed,” &c. This plea was verified by the oath of the agent of defendants.
    The plaintiff replied, “that on the day of the suing out of the original writ in this case, to wit: on the 13th"day of September, 1832, the defendants, James A. Mitchell, Owen Roberts and Jane his wife, and William Collom and Eliza his wife, against whom said writ issued, were the only heirs at law of James Allison, deceased, who resided, at that time, in the state of Tennessee, and within the jurisdiction of the court: and they were also the only heirs at law of said James Allison, who had any assets of the said James in the plea mentioned, in their hands by descent from him; and on the day of suing out the writ, all the other heirs of said James mentioned in the plea, resided beyond the limits of the State of Tennessee,” and concluded with a verification. To this replication, the defendants demurred, and the plaintiff joined in demurrer.
    At March term, 1838, the demurrer was argued- before Judge Powell of the first circuit, who sustained it, and gave judgment that the suit be abated. The plaintiff appealed in error.
    
      June 21.
    
    J. A. McKinney for the plaintiff.
    
    Lucky and R. J. McKinney for the defendants,
    said that a part of the heirs at law of a warrantor could not be sued upon a covenant, and part left out; to which point they cited Hammond on Parties, 143; 1 Chitty’s PI. 39, 40; 1 Com. Dig. Abatement, F.; 9 Viner’s Ab. 67; 7 Bac. Ab. Warranty, N. That a portion of the heirs being out of the jurisdiction of the court does not authorize a suit to be brought against those who are within the jurisdiction, 6 T. R. 327; 18 Johnson’s R. 253; 1 Strange, 473; 1 Haywood, 283.
    
      
       The late Reporter left no memoranda of the argument of the plaintiff, nor any brief of the counsel. [Reporter.
    
   Reese, J.

delivered the opinion of the court.

This is an action against a portion of the heirs of a war-rantor, in a deed of bargain and sale, after an eviction of the bargainee; and the question is — whether the writ should not have been sent out against all the heirs? and, whether if any of them could not have been found, or were citizens of another state, the legal means,in force in this state, should nothave been exhausted, by like issuance and return of an alias and a plu-ries writ, before the plaintiff would be at liberty to proceed against that portion of the heirs, upon whom process may have been served?

We think all the heirs should have been sued. They all constitute but one representative of the ancestor. The claim against them is joint, and of that character to be uneffected by the provisions of our act of Assembly, 1789, c 57, making certain liabilities joint and several. They must, therefore, all have been sued.

But it is argued with much force and ingenuity, that, as the process of outlawry does not exist in this state, to issue a writ, and an alias and pluries, steps necessary before a party could, in England, be outlawed, would be useless here. The practice, however, has always been followed with us, and it was sanctioned by the early case of Sherwood, vs. Davis, in 1 Haywood, 283, and has never been departed from. The evil of the delay, which the practice produces, is perhaps more than counterbalanced by the chance furnished of the non-resident party coming within the jurisdiction of the court, before the return of the pluries.

Note Though heirs in our law, who aro in by descent, are tenants in common, yet they are so far like coparceners at common law, that they are quasiunum corpus; one of them is not part of an heir, but all of them are but unus-lucres. Co. Lit. b. 163, Lit. § 313.

As to the process necessary to enable the plaintiff to declare against those not served, besides the case in 1 Haywood, see Anonymous, 2 Haywood, 70; Price vs. Scales, 2 Murphy, 199; and the analagous case, Whitaker vs. Young, 2 Cowen, 569. Where there are two defendants, and only one has appeared oris in custody, then after proceeding to outlawry against the other, it is the practice to declare against him alone who has appeared, stating the outlawry of the other in the commencement of the declaration, 2 Archbold’s Pr. 178, 179; Lee’s Dictionary of Pr., Outlawry and capias utlagatum. After the outlawry, the outlaw was proceeded against by general or special capias utlagatum, whereby he or his estate was made liable to the satisfaction of the plaintiff’s demand, 2 Archbold’s Pr. 177, 178; 2 Lilly’s Ent. 465, 466; Archold’s Forms, 524. Quere, what proceedings can be had, by our law, against the party as to whom the alias and pluries have been returned non est inventus?

As to our common covenant of warranty, and the remedy thereupon. See 4 Kent’s Com. 468, to 480, and cases there referred to.

The Legislature has, by statute, 1784, c 11, § 4, adopted a similar practice in case of scire facias against heirs, requiring, as against the non-residents, the return of two nihils. The practice, in question, moreover, has been so Jong and so uniformly pursued, that if we deemed it inconvenient, and, at present, unsustained by the grounds which originally led to its adoption, we should hesitate to change it, but should refer those who might wish to do so, to the Legis-dative Department.

Let the judgment be affirmed.  