
    Butterworth vs. Brown’s heirs and others.
    
    A judgment against heirs to be levied of the lands descended generally, without designating any specific tract, is regular.
    A judgment was rendered against A, in the county court; he appealed to the circuit court, and B and C became his securities in the appeal bond; After the appeal was taken, A died, and no person administered upon his estate. The suit was revived against his heirs, and judgment rendered against them, to be levied of the lands descended: Held, that the securities in the appeal bond were also liable, and that a judgment rendered against them was not erroneous.
    The facts of this case are stated in the opinion delivered by the chief justice.
   Catron, Ch. J.

Judgment was had in the Giles circuit court, on an appeal from the county court by John Butterworth against Lewis H. Brown, the principal debt- or, and also against James Patterson and Edward M. Brown, his securities for the appeal, from the county to the circuit court. From this judgment a writ of error was prosecuted to the supreme court, and the judgment of the circuit court was reversed and another trial ordered. The cause was accordingly remanded to the circuit court. In the mean time, Lewis H. Brown died: no one would administer on his estate, and alter the cause was remanded, a scire facias was run against his heirs to revive, pursuant to the act of 1809. This was accordingly done, and the parties went to trial on the former issues, the pleas of payment and set off, put in by Lewis H. Brown, the ancestor of the defendants, and the jury found a balance of debt of five hundred and ninety-one dollars, and six hundred and seven dollars, damages, amounting in all to eleven hundred and ninety-eight dollars; whereupon, the court gave judgment for said sum against the heirs, to be levied of the lands and tenements of the defendants, which have descended to them from their said ancestor Lewis H. Brown; and on motion judgment was also given against Edward M. Brown and James Patterson, the securities in the appeal from the county to the circuit court. From which judgments, the defendants (the heirs and the securities) jointly prosecuted an appeal in the nature of a writ of error to this court.

The first objection is made in favor of the heirs, that the judgment ought to have b.een, for some special lands designated by the scire facias. No plea was pleaded by them, and even had there been, the proper judgment was entered; it is, that the debt and the costs be levied of the lands descended generally. This was the conclusion of the court, and the bar, ten years since, in causes against Christopher Stump’s heirs, upon much consideration, and is the settled practice of the courts. There, judgment for costs was given against the heirs personally, which was reversed, because the creditor was pursuing a fund to which he was entitled, and to nothing more.'— Judgment in this case is the same as if Lewis H. Brown’s estate had been administered upon; the administrator had pleaded fully administered; the plea had been found for him, and then a scire facias had been run against the heirs to subject the lands descended. In such cases judgments are general, to be levied of the lands descended in the hands of the heirs. The lands are liable in the hands of the heirs, as they would have been liable in the hands of the ancestor, had no personal property been found by the sheriff on a fieri facias.

2. It is objected on the part of the securities, that they were bound “that Lewis H. Brown should prosecute his appeal with effect, or in case of failure thereof, he should abide by, perform and fulfil the judgment, sentence or decree of the circuit court,’' but that they did not undertake for the performance of any judgment that might be had against the heirs of Brown.

The form of the bond is prescribed by the 63d section of the court law of 1794, which this bond substantially pursues: first, that the appeal shall be prosecuted with effect; and second, that the securities, on failure, shall perform the judgment of the court above. The bond, by the 64th section, is to make part of the record, and binds the securities for the judgment that may be rendered in the circuit court, not only against the defendant personally, but against those who represent him. By the same section, it is provided, that “no appeal in any cause or court shall be abated by the death of either plaintiff or defendant, but may be proceeded on by application of the heirs, executors, administrators, or assigns. The case that has here occurred, was contemplated by the legislature, and is provided for by preventing an abatement, and causing to be substituted a representative of the appellant, for the performance of a judgment against whom, these curities are just as much bound as if it had been against the intestate.

Gjeeem J. concurred.

Peck J.

dissentients. I do not see any error in the revival of the suit, the trial of the issue made by Brown in his lifetime, or in the giving judgment against the estate in the hands of the newly made defendants, except the calling in the widow. But judgment has also been rendered against the securities in the appeal bond given by Brown: this I humbly conceive is erroneous: it is assumed that the condition of the bond is broken, because the appeal has not been prosecuted with effect; but it must be kept in remembrance, that as far as the appellant is concerned, there is an abatement of the cause. The scire facias, which is defined to be an action, makes this a new case; by the revival, the widow and heirs are before the court as defendants. By the act of 1794, ch. 1, sec. 63, the appeal bond is ordered to be made part of the record to be sent up, i£on which, (in case of affirmance against the principal) judgment may be instanter entered against the appellant and his securities.” In the case before us, there is no affirmance; no judgment against the principal. The judgment is against other parties, and the estate designated, out of which it shall be satisfied.

The summary mode of taking judgment by motion, (which is this case, so far as the securities are proceeded against,) is in derogation of the principles of the common law, and of the constitution of Tennessee securing the right of trial by jury. In all such cases, the summary course of proceeding must be direct and within the provisions of the act which gives it, or it will not be followed.

Here is no judgment against the principal in the bond, no affirmance of the judgment of the county court, and therefore the act of assembly is not broad enough to authorize the judgment against the securities; for the judgment rendered is a new judgment against the estate of the deceased.

From the very words of the act of 1794, ch. 1, sec. 63, the right and power to render the judgment against the securities is made to depend apon the judgment against the principal. The newly substituted defendants, bad they been sued in the first instance, would not have been compelled to have given security for the debt in case they had taken the appeal (5 Yerg. 197). Judgment does not pass against the heirs in the same general terms, in which it would have been rendered against the principal in the bond, had he been before the court.

But it is assumed that there shall not be an abatement. The act provides: “that the cause may be proceeded in by the heirs, executors, administrators,' or assigns of either” (plaintiff or defendant); and that inasmuch as the suit may be revived, the same judgment may follow as would have been rendered had the appellant lived. This consequence does not follow hy the words of the act; nor do I think the argument can be borne out even by in-tendment. We have uniformly denied giving these summary judgments, by construction of law; they have been withheld where the very letter leaves the authority to proceed doubtful. 4 Yerg. 569, 157: 3 Yerg. 62, 414, 355, 41: 2 Yerg. 484, 400, 413: 5 Yerg. 203.

I may here venture to say, that no class of cases in our books of reports can be found more numerous or uniform than this class, which resists the right to give the judgment unless the case is brought directly within the provision of the act authorizing it.

Two 'considerations are very forcible with me, to show that the judgment cannot be given. 1. In all cases where judgment is given against the securities, they are instantly entitled to a judgment over against the principal; here this judgment cannot be given. 2. What form of execution must follow this judgment.

An execution, special and limited, against the estate in the hands of the heirs of Brown, and genera) against, (not the securities of the heirs,) but the securities of the deceased, against whom all proceeding abated by his death.

“Actus dei nemini faciet injuriam,,” is a maxim which applies; when the suit abated as to the principal, by consequence it abated as to the securities. We cannot say what might might have been the result, had the appellant, instead of the substituted parties, defended throughout; and as the act is confessedly not broad enough to cover the case by express provision, it must be taken as one of omission, which no intendment can help. So far, therefore, as the judgment in the court below has been rendered against the securities of Brown, it is, in my opinion, erroneous.

Judgment affirmed.  