
    
      E. M. Whiting, Assignee, vs. Elizabeth Pritchard et al.
    
    In sci fa. to revive a judgment againt an heir, semble, it should be made to appear on the face of the proceedings, that he is in possession of lands, of which his ancester died seized, 
    
    The City Court of Charleston has no jurisdiction to issue a sci fa. to revive a judgment against parties who are not subject to the jurisdiction of the court, 
    
    Q,u£ere ? Can the assignee of a judgment bring sci fa. thereon in his own name?'
    
      Tried in the City Court of Charleston, November Term, 1844.
    This was a motion to set aside a scire facias, on the ground of irregularity.
    On 13th October, 1844, the clerk signed, under the seal of the court, a writ purporting to be a writ of scire facias, to revive a judgment, returnable to November Term, 1844, directed to the sheriff of the City Court, and “To all and singular the sheriffs of the State,” reciting that Wilkes and Wilkins, in the City Court, at July Term, 1828, recovered a judgment against William Pritchard, Senior, for three hundred and twenty-three dollars and sixty-four cents, and that John Wilkes, the surviving co-partner of Wilkes and Wilkins, had assigned all his right in the judgment to E. M. Whiting — that William Pritchard, Senior, has died intestate, and no administration has ever been had of his goods and chattels, rights and credits. That William Pritchard, Senior, has left as heirs or distributees, Elizabeth Pritchard, Constantia Heyward, and other parties, defendants thereto. That execution of the damages, costs and charges, still remains to be made; for remedy whereof, the sheriffs aforesaid were commanded, by good and lawful men of their respective districts, to give notice to Elizabeth Pritchard and the other named defendants, to be and appear before the Recorder of the City of Charleston, at the City Court, on the first Monday of November, 1844, to show cause why the said E. W. Whiting ought not to have judgment and execution against them, for the damages and costs of the goods and chattels, negroes, lauds and tenements, which were of the said William Pritchard, Senior, at the time of his death, and now in their hands, according to the force, form and eifect of the said recovery.
    . This writ was lodged in the office of the City sheriif, on the 13th October, 1844 — and also in the offices of the sheriffs of Beaufort and Georgetown districts. The sheriff of Beaufort district made return that he had personally served Paul Pritchard with a copy, and left copies for Elizabeth Pritchard, Constantia Heyward, Charity Pritch-ard and Richard Pritchard at their residences, by his special deputy. The Sheriff of Georgetown district made return that a copy for each of the defendants was left at the residence of Mary Nesbitt, wife of Robert Nesbitt, W. P. Hamilton and Catharine Hamilton, on Waccamaw River, by the sheriff’s deputy.
    The grounds taken in support of the motion were,
    1. That the writ was improperly directed, and was served on persons not subject to the jurisdiction of the City Court — 2. That it did not appear in any part of the proceedings, either on the face of the writ or in the sheriff’s return, that the defendants were in possession of any lands of which the intestate died seized.
    The Recorder granted the motion, and the plaintiff appealed, and now'moved that the decision be reversed, on the ground, that by sci.ja. which is a proceeding on the record, a judgment can be revived against defendants who are not within the jurisdiction of the court.
    
      T. P. Magrath, for the motion.
    Has the City Court the power to revive its judgment when defendant is beyond its jurisdiction % This may be ascertained by enquir-ing whether the presence of defendant is necessary. If it is, then defendant may have it in his power to render the judgment of the court inoperative by withdrawing himself whenever he pleases. But we say that the presence of defendant is not necessary to enable a court to revive its judgment. In England and in this State the authorities decide that a judgment may be revived upon the return of 
      nihil to the sci. fa. when the defendant cannot be found ; 2 Saunders Rep. 72; 2 Brevard, 108. If this be the rule, why deny its applicability to the City Court ? Because they say that the City Court is a local jurisdiction. Conceded, but does this circumstance deprive it of the power to render its judgments effective? To say that a court can give judgment and not render that judgment available, is to say that the court has a right, but cannot exercise it. It is contended moreover that the A. A. organizing the City Court restrain its process to the City of Charleston, but a reference to those Acts will shew, that they refer exclusively to original process ; Dig. City Laws, &c. 228, 336. Where a court is authorised to take cognizance of a cause it impliedly possesses the power to render its judgments operative, or its jurisdiction is nominal. The City Court does not posses the power to issue original or final process beyond the City of Charleston, but the writ of sci. fa. is •not original or final process ; it is merely notice to the defendant that the court in possession of the judgment intends to give the party thereto entitled, the benefit thereof, and requires defendant to shew cause to the contrary. This is not an usurpation of jurisdiction. The court has certainly jurisdiction over the judgment, and the proceedings are on the judgment; they are not in in personam, for if they were, then no court could revive its judgment unless the defendant was within its jurisdiction ; but, as we have seen, this can be done, therefore the proceedings would seem to be in rem. It is said that the issuing of the writ of sci fa. into Beaufort, where the defendant resides, is unauthorized, and beyond the power of the court. There is certainly no authority for the City Court to issue this process, but there is no authority for the State Courts to issue sci fa. unto the respective districts of the State, 2 Brevard Dig. tit. process, 164, yet it is done. May not the City Court exercise this power “ex analogía.” The case in 2 Brevard Rep. 208, recognizes however this practice, and it is presumed applies to the City as well as the State Courts. The State Courts, as regards their original jurisdiction, are local, they are cdnfined to the districts in which they are respectively situated, yet. they issue sci fa. into other districts. The City Court is local, that is, its original jurisdiction is confined to the City of Charleston, yet why may it not, in order to render its judgment perfect, issue sci fa. into the district where defendant resides ? Judgments in the State Courts are considered as much foreign judgments as those in the City Court. It has been said that the action of debt on judgment should be brought. But we con tend that where the judgment is in the City Court, and the property within the jurisdiction, the action of debt to be brought in Beaufort would be a circuitous proceeding, and one calculated to delay. And we see no reason why the City Court should be deprived of the power of issuing the writ of sci. fa. into the districts of Beaufort and Georger town, when it is necessary for the revival of its judgments ; especially when it is not denied that the power to revive is an inherent power of the court, and indued in the power to give judgment; and when, from the nature of the case, the issuing of this process will effectuate the intention of the Legislature in creating this court; that is, will enable parties, suitors in the City, to obtain the benefit of their proceedings without going into the State Courts, where unnecessary delay and expense might be experienced.
    
      Bryan, contra, was stopped by the court.
    
      
      ) In scifa. to revive a judgment the heir is not chargeable as heir but as tenant. In debt on bond or other specialty he is chargeable as debtor in the debet and detinet. 2 Saund. R. 7, n. 4; see also Rice Eq. 374; 2 Saund. PI. and Ev. 563. Debt will not lie against an heir on a judgment; 2 Saund. 7, n. 4. As to what are assets by descent, see Ram. on Assets, 8 Law Lib. 144, et seq.
      
      In this State, it is apprehended that under the Stat. of Geo. 2, not only debt on judgment will lie against an heir, but that even assump-sit or covenant will lie against him. In the case of Bird vs. Houze, Sp. Eq. 250, it was held, that when land is “in the actual exclusive possession of the heir entitled to it,” it cannot be levied on and sold under a judgment and exection against the executor or administrator. See also 2 Hill, 579. In the case of Bird vs. Houze, the following language was held by the court. “Although, by the Statute of Geo. 2, lands in the possession of the heir are liable for the payment of the simple contract debts of the ancestor, yet in that case the cause of action must be established against the heir, and he is not bound by a judgment against the executor or administrator, to which he was neither party nor privy.”
    
   Curia, per

Butler, J.

It does not appear from any of the proceedings in this case, whether the intestate left any estate at all, either real or personal, liable to be sold under execution, on a debt recovered against him in his lifetime. But if he had left any such estate, situate or being within reach of the process of the City Court, I can see no reason why it might not have been levied on; or if there was a necessity to make new parties for the purpose of reviving the judgment, it was proper that an administrator should have been appointed. Heirs, as such, do not represent the intestate, so as to be under an obligation to perform the functions of an administrator. An heir may have assets by descent, in contradistinction to assets in hand, that is, such as are in the hands of an administrator or executor. In such case, it should be made to appear that the deceased w;as under an obligation, and died seized of lands in fee simple, which have desecended to his heirs ; Grimke’s Ex’rs. 227. There may be cases in which such assets may be made liable, in the possession of an heir, without administration. - But since the provisions of the Statute of 5 Geo. 2, C. 2, (2 Stat. 570,) have been adopted in this State, there can be little or no necessity to proceed against the heir. By that Statute “houses, lands, negroes and other hereditaments and real estates,” of persons indebted shall be liable for their debts, “and shall and may be assets for the satisfaction therof, in like manner as real estates are by the laws of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to like remedies &c. for seizing,” and disposing thereof for such debts, “in like manner as personal estates in any of the said plantations respectively are seized, sold or disposed of for the satisfaction of debts.” Under these provisions of the statute, as they have been expounded in the case of Martin et al. vs. Latta, 4 M’Cord 128, the lands of an intestate may be sold under an execution obtained against the administrator, without making the heirs parties to the proceedings, and notwithstanding there may be sufficient personal assets to satisfy the debts. All that is necessary, therefore, is to have an administrator appointed for the purpose reaching the estate of an intestate by a Ji. fa. That lias not been done in the case before the court — and it does not appear that the defendants are at all liable to pay the debt which is endeavored to be revived against them.

But there are other objections, equally fatal, to the plaintiff’s proceedings. As the City Court is a local and limited jurisdiction, its processes cannot operate beyond the limits assigned and prescribed by the Acts which have created that jurisdiction. As to strangers, such as the defendants are, the judgments of this court must be regarded somewhat in the nature of foreign judgments. They may authorise an action of debt to be brought on them, and an exemplification of the record would be held as sufficient evidence to establish it against proper parties. But a sci. fa. to revive a judgment, can only be issued against those who are within the jurisdiction of the court. Por as to others, a proceeding cannot be continued against them, when they were never liable to original process — and such seems to have been the fact in the case before us.

It must not be assumed, because we have given no specific judgment on the point, that the plaintiff, as assignee, could maintain the action. We have thought it unnecessary to consider that question.

The Recorder having attained a correct result in his judgment, the motion to reverse it is refused;

The whole court concurred.  