
    Simon Jeffreys v. Charles Yarborough et al.
    From Franklin.
    Where a decree was made for the payment of money against an administrator, and it was ascertained by the decree that he had no assets — held, Hendmisow, Chief-Justice, dissentients, that a sci. fa-under the act of 1784 (Rev. c. 226) is confined to judgments at La v, and that the only remedy for the Plaintiff was by a bill against the heirs, to have satisfaction out of the real assets.
    This was a sc;re eacias issuing from this Court. The case made by it. and the decree upon which it was founded, was, that Charles Yarborough made his will, and bequeathed a legacy to the Plaintiff, and appointed James Yarborough his executor, who received the assets, wasted, them and died : That James also made his will, and ap pointed Henry Yarborough his executor, and left a considerable personal estate, which came to the hands of Henry, who wasted it and died : That Thomas Yarborough was the administrator of Henry, and had assets only to the value of $74 14 : And that David M. Lewis was the admiustrator de bonis non of James, and bed no assets» Upon a bill against all these parties^ the accounts of the several esletos, and of the Plaintiff’s legary. were taken and confirmed, and a decree made, declaring what ■was due to the Plaintiff, and that there were no assets in the Iss.nds of Tintinas Yarborough and Lewis. The Plaintiff sought satisfaction out of the real estate, of Henry arid James Farborougk", and to obtain it, issued the present 4irire facias against «heir respective heirs and devisees.
   Ruffin, Judge,

after stating the case as above, pro-needed: i conceive, th it the Plaintiff caeinot proceed in (his manner. That Equity « ill subject. <h« lauds to the aneestor’<> debts is peril ciiy clear, it is one of its oldestJui-i.sdic tionsto grant discovery, and take accounts of the reales-tate. It does it as ancillary to Courts of La*, for flu* satisfaction of more legal demands. Modi more will it do so when she debt, due by its own decree, is entitled to satisfaction out of the lands, as is the case with all debts So this Suite. B«t when a person resorts to a Court oí Equity for relief, be must adopt the mode of proceeding .known to that Court. The regular course of this Court is to proceed upon English bill, and the answer or plea of the Defendant., upon oath. The sd.fa* is a pro - ceas unknown to it, as a Court of Equity, unless in a few eases provided for by spume. It is a strictly common law writ. Our act of Assembly gives it in the case of the death of a party iw Equity, instead of iho bill of r, i;-'. But it can be «sed only to revive. If any new «.«Her is to be put in iesae, or becomes material to the just decision of the cause, it must be introduced by bill, Isi the nature of a bill of revivor and supplemental bill.

It would be impossible for this Court to administer its justice in this method. Why shall the attempt be made ? It is said, because it is more simple and expeditious. Í think quilo the eoiiüary. The pleadings in Equity are much less technical than at Common Law, and leave a canse mure, open for-a decision up.-m its merits. The expedition will only epist its cases not disputed. Bat wn have a right to expect cases of real litigation, in which the heirs will deny the full administration, or insolvency of the executor : others, as here, where there is a pn-mar.y an(] a secondary liability. How are these questions to be tried ? If under this process, by a jury. We know that one of the most expensive, difficult and dangerous proceedings at Law, is the trial of the issue of" plene administraron. Often the parties have to come into this Court for assistance by way of discovery, before trial at Law, or relief fr om the injustice done by the verdict on that issue. Tue witnesses must all be present at once before the jury. Every voucher must be then proved by a disinterested witness ; and the parties cannot, be called on for admissions. These reasons have raised the jurisdiction here; because accounts can he taken more cor rectly, at less expense, and more speedily. Should we proceed upon scufa. until the jury had found a verdict, and then entertain a bill to correct our own injustice, as we do that of a Court of Law ? At Law, judgments are always direct and immediate, although, as between some of the parties liable, there may be, in Equity, an immediate and more remote liability. In pursuing this legal method, should we not be obliged to adept the legal mea sure of justice? -Now it is plainly inequitable, that the heirs of James should pay the Plaintiff, unless they be able to get satúfái tion from the ir-irs of Henry j because the latter received the assets of the former. Yet at Law, there is no such thing as successive liability. A judgment is always direct. If we are to retain our own rule of decision, why not our own method of arriving at it, since it has the sanction of ages, is thoroughly settled, and well understood. I will mention several other inconveniences of a change. It is the rule of this Court, that each party pays his own witnesses, without regard to the event of the cause. This would be ruinous in practice, upon a collateral issue between the heir and executor. It is another rule of this Court, that no suitor shall -¡•- c-.'íücl'.Hsffid by one faeqnng 5 bul th«.t by by petition or .VIS of rcáe#, «-very materiel point of the decree may bo reconsidered, ;:,¡¡d .¡o,*CH,*»*y «LrAdcd twine, The ittiro-section of the jury < rial abrogates (hi/ of the course »f t*>{: Court, as ‘applied to this claw; of CMttroversies ; and s‘n the case i;j not on paper, many i.f fisc most iutri- •:: ¡Í »• quc.-tlon;:, both of law and fart, u»u--.t go off as at nisi pri¿s, where the case is given to the jury viva voce . or be re-ex itiuncd at the expense of a new tria!, as The extreme difficulty of doing justice, in a trial at Lav- of suds cares, pressed itself on the attention ; f the Legislature so Trongiy, sis to produce the passage of an su:!, authorising Courts of Law to refer, sis to a Master, matters of account of ibis kind. I niiisdc to suits on ihe bonds of gmudians and administrators., Surely then, tisis Court, when it may safely act in its ancient and accustomed «nido, ought not to yield up its distinguishing characteristic, which constituios its real value to the country ; and adopt ik.it of the Commote Law, the inadequacy of which to the ends of justica created Inis jurisdiction, and continues its existence.

I have supposed, that ilia facts put, in issue upon this Segal writ are to he tried by a jury, if this be not soy hut Use defences are to be. made and the facts ascertained, according to the course of this Court, by plea and answer on oath, and reference to the Master, then plainly th"re is no saving of time or expense, or any change but that of substituting- a sci.fa. for a bill, as the means of,' instituting the suit against the heir. Why do that ^ What advantageth if ? Í object to a change that is to do no good, unless required by a law. I object to it also, because, it }■■ an indirect method of giving this Court original jurisdiction, riot contemplated by the Legislature, i admit we must do it, if the Legislature so enacts' £1 is to be hoped it never will. I think it never has.-The act of 1784 { Ihv, c. 226) is expressly eonfin- d to *• suits at law f* and the defences are all legal» apd t® |J0 tried according to the cotmx - ? >„■», comjmon law.. The act of 1807 (Rev. 71'• t ‘f « 1 " ^ pari materia* and confined also to a»?*:* , ,Jt. ; .■■•" t&e express ac~ c]aration in the last -vctim, k, i-»»e jr'cvwi‘",w ’« that act shall not affect the remedy* which a>uy creiiioi* h&s-j in. Equity against the real estate of a deceased dob for, or in any manner change rules of decision in Equity in any such case. The second section of the act of 1787 (Rev. c. 278) has been urged as giving this remedy. After reciting, that the mode of carrying into effect decrees in Chancery was by process in -personam, it enacts that upon decrees for sums of money, the party may issue execution against the Defendant’s body or estate, and that the estate shall be bound in the same manner, as it is by judgment and executions at Law. I take this to mean simply, that there shall be execution in Equity, and to declare its lien — wtiat shall be bound and sold under it. But it does not profess to prescribe a method, by which the decree may originally be had ; nor by which, after obtaining it against one person, you may execute it against another. But if there were a doubt upon this, it is removed by the c&iíügks proviso of the subsequent act of IRQ 7o

I am confitttut*? ¿««frico of this Cobijé eran ©nly fee administered by adhemig io the ¡modo oí" pro ceeding, which is peculiar to it; and I must oppose as strenuously innovations upon it, as upon that of the common law. Each is best in its appropriate sphere, I think this writ must be quashed j and the Plaintiff put to his bill.

Hendersost, Chief Justice,

dissentiente. — I do not Concur in file opinion, that the scire Jadas should be quashed» And the process of reasoning, by which I ar rive at the opposite conclusion, is very simple, and to me very conclusive. But I say this with great deference. By the act of 1784 (Rev. c, 226) after reciting ¿hat doubts were entertained, whether the real afeite of deceased*debtors, in the hands of their heirs or dken'cecs, . ' shoale r i¡ «abject to tue pay ment of debts upon jn.i&wonts, inserts;',.'sAwicLitirators, in order i'« i ■ N, ■ ■ ,;í-íiC<ill (in ü:.j s. ¡-\ ■ fiios!) that in ■ilii'^>'ístíi¡ Law, wherein the riceisi/Hi- ■ -'i-J'iAjíiatrators of any deceased person shall plead fidl.j whur uttered— no assets, or not sufficient assets to satisfy Uw Vlaiutiff’s demand, and such plea shall be found in iVc/w of the Defendant, the Plaintiff may proceed to ascertain the demand, and sign judgment. 'But before taking out execution against the real estate of the deceased debtor, a writ or writs of scire facias shall issue, summoning the respective heirs and devisees of such deceased debtor, to allow cause why execution should not issue against the reai estate of such deceased debtor, for the amount of such judgment. And if judgment ¡dial! pass against the heirs or devisees, execution shall and may issue against the real estate of such debtor, in the hands of such heirs and devisees. The third and fourth sections are on subjects foreign to this point. The fifth section gives the heir or devisee the right of contesting the plea of fully administered, though found for the executor or administrator, on the trial between The creditor and executor or administrator; and points out the manner of making up the issue, and the course to bo pursued if found for the heir or devisee. Another act, that of 1807 (liev. c. 716) points out what is to he done, when there are really no assets, and an insolvent executor or administrator omits or refuses to plead fully administered.

It is to be observed, that in this act, the personal representative is to contest the creditor’s right of recovery. When that right had been settled in contest between him and the creditor, and in favor of the creditor, that question is put to rest as to all persons, whether heirs or d vistees, who have t! dead man’s land (saving, Í pro snnS\p, recoveries efibeted by a fraudulent combination between the creditor and executor or administrator). rj7jie on\!y qU«stion to be tried and investigated, whets the heir o'iy devisee is called on, is that .of the administration of the personal assets. For although the heir or devisee is bound, as to the question, debt or no debt, and all other questions arising in <lie cause, file Legislature did not conclude them as to that point, but permitted them to contest it with the executor or administrator, as a cause, not why.judgment should not lie lendered against them for the debt, but why execution should not issue, not against thew,, but against the lands and tenements of the deceased debtor in their hands. The debt, except in cases of fraud, is conclusively fixed on the estate, by the trial between the creditor and executor or administrator. Tiie heirs’ or devisees’ only defence is, not against a judgment against them, for none is prayed 5 nor against an execution against them, for none is prayed : Í say, their only defence against an execution to sell the land in their bands is, that there is, or was a sufficiency of personal estate to satisfy the debt. It is admitted, that this act did not give a sci. fa. upon a decree in the Court cf Equity ; its words are confined to judgments at Law. At that time, Courts of Equity enforced their decrees by other process, and could not issue either a fieri facias, or capias ad satisfaciendum. But the Courts of Equity were authorized and directed to issue these writs by a subsequent act. By the act of 1787 (Rev. e. 278, s. 2) it was declared, that the mode of proceeding then used to carry into effect the decrees of a Court of Equity, by attachments, habeas corpus attachment with proclamations, and commissions of rebellion, are in many cases dilatory, oppressive and inadequate, and it was enacted, that in all cases, where decrees might have been made in any spit in Equity, in any of the Courts of this State, or »h«»!Íd hereafter be made, for any sum or sums of money» it Rirnuld bo lawful for exer....!i3 !:":i 1 tigainyt ‘ho t)o-fondant's body» op 8;f«iw( I»*'* snd, cíw{(p1s» lands and firs meats, to satisfy w A deem* aiN costs (and the goods . f.cl chattels, lands a|d tenctnh;*-', shall be. bound f)v üsr.b decree and cxcci^on, in the.-..n-ne wanner as good, ami chattels, lands and tencinenif'. are"bound by judgments and executions at Law) in the same manner as executions shall issue in the Courts of Livw. This act gives the same execution on decrees to pay money, as are gben at Law. If.so, execution shall against the lauds and tenements of the deceased debtor; for it did so, at Law, But a scire fadas shall first issue to the lairs or devisees, to show cause why such execution shall ¡not issue. Without this exposition of this act,'the santi remedy is not given to enforce decree:, in Equity, as is givers to enforce- judgments at Low. The lands of the debtor v, ere liable, by an old statute paused in the reign of George II. Our Court Law enforced the came right If gave the fieri facias against lands ami ten«??ne(i>s. The act of 1784 declares it to be doubtful, whether execution should issue against the lands and tenement:) of deceased debtors in the hands of the heirs or devisees, and that is certain cases it shall, and directs that h scire Jadas shall firs? issue to the heirs or devisees, anil pósete out what grounds they may take, to protect the sards in their ‘hands from the execc ión, on die judgment against the executor or administrator. The art of 1787 gave such execution on decrees of the Court of Equity for money, against the goods and chattels, Linds s:;ul tenements of the debtor, as was given fey law; that is, by prior acts. The act of George II. and our act of 1777 f'Mev. c. 115) gave it against the lands of the debtor, and the act of 1784 cleared away the doubt, is. :• execution should. Issue against the lands, in the hands of th. heirs or de-visees, in certain cases, iuu prescribí*', dud ,-otuv. or scire facias shall first issue to them, toefiovr caos® «against it. If the itcfr of 1/87 Crtnly extended the act of Geo. II. 81!<^ as -Equity decrees, then the same ^011^ V w^’c^ exV*tpd prior to tiie act of 1784, we w ; ■ jn now to j|rhato, whether lands ir fl:e hands of lb,. ,-jr ^.vVl h«> mh'C- ..s-"3 against tht - ' ■cüío;* os" .¡¡is,/ "‘\tor í ilsiwk . n doubt existe., The exeerjiktst against the lands is given apon a dercs^,, ,:s it is at Law, explained as it is by the act of 1784.' I ‘liter not into the discussion, which is the easiest nndknost convenient mode, by bill or by scire facias. That jw.ts with the present Plaintiffs. And as to a biil being siawe congenial to Equity rules and Equity practice, that v as a question for the Legislature. But 1 confess I .;gí-¡.\-„ both with the Plaintiffs and the. Legislature, tha, a sn-rejacias is the most easy and convenient. The only question which can arise in the scire faáas.¡ viz. the administration of the personal assets, does not require the modes prescribed in the Court of Chancery by English bill. As to the questions of prior and posterior liabilities, that is settled by the decree. When they arise, it will be more proper to examine into it. But the creditor, having obtained his decree against the executor of his debtor, asks for an execution against his debtor’s land, and calls on tiie heirs and devisees to show cause, if any they have, why he should not have it. As to the argument, that this Court is better qualified to examine the administration of the personal assets, than & Court of Law, if that fact is put in issue, we will examine the fact our own way. If a bill was brought to carry the decree into execution ; if that be the only way, and resorted to from necessity, and not from choice, I suppose, since the act of <787, no defence could be made, except that given by the act of 1784, to the.heirs and de-visees on the scire facias. If the bill be not the only remedy, but resorted to through choice, Equity might say you have no merits, from some cause peculiar to the Plaintiffs, and refuse to move.

, practice since by scire facias. ;a this: The «■ -, ’ i V SCifCJUlMlS. •J . Nil'» ui'ipMueuí., f i-!, ~s«3 up, ;a tfl!S : I lie ;m:> of i0>«o ill -I?..;; ; of 1777.gave the jí»sr íhc irtaifo eí'i'Iif* d.F'-Mr Ln his «wn kinds. The o, ;; ti.:’ HaC ^i.vr against ihe latida of a deceased debtor in the bands of his heir or devisee, upon a judgment against his executor or administrators in cartes..: ■;t prescribed a scire facias against ihe heir i ats' ptk'kssfj-.j, Whr:i these acts were passed, no preror; sell property» ««• ¡diminu* property, issued to •x.-x* :ty ¿se-crees in the Censy ef FT-diy,, 'The pro'err, «nv,.; in p©-, sonam. The act of LT.’>7 <k'er.ivyi* ' -.th.-n* there shall be. any decree for money in u C.íah - - Equity, that ax-aiHon may issue thereon against the hefendanfs body, or against his goods and chattels, lands and tenements, to satisfy such decree, in the same manner as executions shall ar may issue in the Courts of Law.

I; follows, i!¡íit as by the statutes of Geo. IX, and of i777, execution might issue against the lands of the debtor in his own hands, to satisfy a judgment at Law? so an execution might issue against the lauds of the debtor in his own bands, to satisfy a decree in the Court of Equity. For by the act. of 1787, execution shall issue, sn the samo manner as in the Courts of Law. And as by the act of 1784, execution may issue against thedands of (he, deceased debtor in the bauds of the heir or devisee, io satisfy a judgment obtained against an executor or administrator in certain cases, so in like cases an execution may issue against the hinds of the deceased debtor, in the hands of his heir or devisee, to satisfy a decree of a Court of Equity, against the executor or administrator. For. as was said before, the act of 1787 declares, that execution may issue thereon (decrees in a Court of Equity) against the Defendant’s lands to satisfy such decree, in the same manner as such executions may issue an the Courts of Law'. The act of 1784 prescribes tfec set. fa. to the heirs and dev/Sees apon a ¿udgment.at 7/ against an executor or afl'ministrator. It must befou , . •. .. " i . _ . _ ■ ' e(! i» a similar Case on a decree in Equity ; tor e;, ,- tion is to issue i.rtihe same manner as- in a Court of Law. The same argument, which would prove that a fi. fa„ could not issue against the lands of a deceased debtor, in the hands of his heir or devisee, upon a decree for money, prove, that a f. fa. could not issue against the lands of the debtor in his own hands, upon a similar decree ¿.gainst him.

I very much regret this dille:-:. ■ b of ojjimnno Eta»' <?a fertaining doubts, 1 could not do oMiei’wnee ftai ospeets mine.

Per Curiam.

— Let the scire facias be quashed.  