
    William Austin versus Josiah Gage and Others.
    Lands descending in another state are not assets in this commonwealth, by which tile heir of a covenantor may be here charged.
    Covenant broken by the plaintiff, as assignee of one William Elliot, against the defendants, as heirs at law of Josiah Gage, deceased
    The declaration states that the said Josiah, deceased, and one James Wilson, (whose heirs were originally joined in the action with the present defendants, but were afterwards struck out by consent,) on the 30th of August, 1768, by their deed duly executed, &c., for a valuable consideration therein mentioned, bargained and sold to the said Elliot a certain tract of land in Dracut, containing seventy acres, to have and to hold to him, his heirs and assigns, to their own use forever; and in and by said deed, among other * things, for themselves, their heirs, executors, and administra.tors, covenanted with the said Elliot, his heirs and assigns, that they were lawfully seised, &c., had full power, &c., that the granted premises were free of all encumbrances, and that they, the said James and Josiah, their heirs, &c., would warrant the game to him, the said Elliot, and to his heirs and assigns, against the lawful claims and demands of all persons. The plain iff then derives a title to himself, through several mesne conveyances, in twenty acres, parcel of the said seventy acres; and avers that the said grantors were not lawfully seised, &c., according to the tenor of their said covenants; but that B. L. Oliver and others, being the rightful owners thereof, by an elder and better title, at the S. J. Court, April term, 1808, recovered judgment for their seisin and possession thereof, and afterwards entered and expelled the plaintiff therefrom, and now legally hold the same in fee. Yet the defend ants, as heirs of the said Josiah, deceased, have not warranted the said premises to the jdaintiff, although often requested, &c.; and so the covenants aforesaid of the said Josiah, deceased, as his heirs, they have not kept, but have wholly broken the same, &c.
    
    The action was submitted to the Court on a case stated by the parties, in which it was agreed that the said James Wilson, and Josiah, Gage, deceased, made the deed, with the covenants recited in the declaration, to the said W. Elliot; that twenty acres of the same land, by several mesne conveyances, came to the plaintiff; that he was in quiet possession thereof until evicted therefrom by virtue of a judgment rendered upon a verdict against him, in favor of the said B. L. Oliver and others, in this Court, October term, 1806, upon evidence of an elder and better title; that upon a review of the same suit, April term, 1808, another verdict was returned, against the plaintiff, and judgment rendered thereon in favor of the said B. E. Oliver and others; but the plaintiff continued to occupy the said land, as tenant to the said Oliver and others, until the commencement * of this action, notwithstanding the said recovery; that the said Josiah Gage, the elder, died intestate in 1775, and the said James Wilson died, also intestate, in 1788; and no administration was ever taken upon the estate of either of them ; that the said Josiah Gage left, at his decease, two other children besides the defendants, namely, Hannah, still living, and wife of Jesse Wilson, originally made a defendant in this action, and Nathaniel, who had deceased before the commencement thereof, leaving issue; that the defendants have by descent from the said Josiah Gage, their father, sufficient lands in fee simple, lying in the state of New Hampshire, to satisfy the damages sustained by the plaintiff.
    It was agreed that the defendants might avail themselves of every species of defence which the above facts might furnish them, in the same manner as if specially pleaded in bar.
    If, upon the facts above stated, the Court should be of opinion that the plaintiff was entitled to recover, the defendants agreed to be defaulted, and that judgment should be rendered in the plaintiff’s favor for 200 dollars damage, with costs; (unless the opinion of the Court should be that the plaintiff was entitled to nominal damages only ;) but if the opinion of the Court should be, that the plaintiff" was not entitled to recover, he agreed to become nonsuit, and the defendants should recover their costs.
    The cause was argued at the last October term in this county, and again at the present term, by Stearns for the plaintiff, and Richardson for the defendants. Sundry points were made in the argument, but as one only received a decision by the Court, it will be unnecessary to state the others.
    
      Richardson.
    
    Lands in New Hampshire are not assets here. That no lands are assets, but such as lie within the jurisdiction of the Court, is evident from the nature of the judgment, which may be rendered against an heir. When he confesses the action of the plaintiff, and shows the certainty of the assets descended, the judgment must be special, * that the plaintiff recover his damages, to be levied of the lands descended. How is a judgment of this Court for damages, to be levied upon lands in New Hampshire, to be executed ? what officer is to serve the execution issuing upon such judgment ?
    It is no answer to this argument, that in this particular case the Court may render a general judgment. That would, in effect, be saying that, where the Court must render a special judgment, lands in another state are not assets ; but where they can render a general judgment, they are assets.
    In other words, it would be saying that, if the heir showed the certainty of assets, then they would not be assets ; but if he denied the land to be assets, then they would be assets; thus making the question of assets depend entirely upon the will of the heir; who might, in every case, if he saw fit, confess the action and assets, and thus defeat the action.
    
      Stearns.
    
    The objection that the assets, which descended to the defendants, are in the state of New Hampshire, proceeds upon the supposition that the decision must be according to the ancient common law of England. There is, in Vern. 419, a d.ictum, that lands descended in Scotland are not assets in England, to satisfy a bond debt. But it is there said that lands descended in Ireland, are assets. Yet judgments and process of the superior courts in England do not extend to Ireland; nor is it possible they should, because those courts have no odicers there to carry them into execution.  From the cases referred to in the margin,  it seems manifest that, even at common law, the liability of the heir did not depend upon the assets being within the reach of the process of the court.
    Where the judgment was special, it was to be satisfied by the sheriff’s delivering to the judgment creditor possession of the assets confessed, after his inquest had determined the yearly value. And it was only to such cases that the present objection could apply. But in England *the ancient common law has been much altered by several modern statutes. Since the statutes of 29 Car. 2, c. 3, and 3 & 4 W. & M. c. 14, there is, perhaps, not a single case of a special judgment satisfied by an extent upon the assets descended.
    But, whatever may be the law and practice in England, the statutes of Massachusetts and New Hampshire, which make the whole estate of a deceased debtor, real as well as personal, a fund for the payment of his debts, have very much limited the application of the principles of the ancient common law. And while they have rendered a resort to the heir seldom expedient, they were intended to facilitate that remedy when necessary. The alterations introduced by the statute of this commonwealth, (1788, c, 66,) in the mode of prosecuting claims against the estate of a deceased debtor, are very important. This statute does not allow the executor to detain the inheritance from the heir beyond a certain period; but it makes the heir liable wherever the executor would have been. And it could not have been the intention of the legislature, when they deprived creditors of all remedy against the executor, for claims which might arise in future, to confine the remedy given them against the heir, to such persons only as were liable as heirs at common law ; but it extends to those who take by descent a freehold, chattels real, or a distributive share of personal chattels. And the distinction, not only between legal and equitable, but between real and personal, assets is at an end. The heirs, on the one hand, are answerable to the creditors of their ancestor by simple contract, as well as by specialty ; and, on the other hand, they are chargeable in respect of personal as well as fee simple real assets. And the plea of “ nothing by descent in fee simple,” it seems, would not now be good.
    This construction appears to be necessary. For since future demands against the executor are barred by this statute, creditors would be without remedy, where the ancestor left no real estate, however ample his personal estate * might be ; unless the heir is to be answerable for the personal assets descended to him. And as the assets, both real and personal, go to compose a fund for the payment of all the ancestor’s debts pan 
      passu, and tlie personal assets are not local, the consequence seems to be, that under this statute all locality of assets is at an end. The ’udgment being general, for the gross value of all the assets, it is immaterial what or where they may be. The only inquiry is as to the value ; and the creditor is equally entitled, whether it be fee simple, chattels real, or personal, in this state or elsewhere. This construction imposes no hardships upon the heir. He cannot be charged beyond the value of the assets, and may plead, to a subsequent action, payment to that value to other creditors, before the commencement of the suit. 
    
    But whether our construction of this statute be adopted or not, the remedy against the heir is in personam., and the judgment against him must be general. The process by which a special judgment is executed, is wholly unknown in our law. The general policy of our judicial system requires, in analogy to the 3 & 4 W. & M., that wherever the heir is charged, it should be for the gross value of the assets. And assets in another state are no more out of the reach of process, than assets which have been bona fide aliened by the heirs.
    If the heirs have aliened their inheritance, and converted it into money, or if they have received from the income of it sufficient to satisfy the claim of the plaintiff, of what importance can it be, whether that money is the proceeds of lands in New Hampshire or Massachusetts ?
    The objection is quite foreign to the merits and justice of the plaintiff’s claim. It derives its force from the ancient principle of the common law, which charged the heir only as terretenant, and held him not liable after he had aliened the assets.  But the English statutes have long since altered the common law, and made the person of the heir the debtor, and not the land. And our own statute expressly gives the * remedy, not against the lands, descended or devised, but against those who inherit the estate or the devisees thereof. It was the intention of the legislature to give the creditor of the ancestor a reined}’ in every case, where, by reason of the lapse of time, or other cause, no remedy could be had against the executor or administrator. The law of descent of real and personal estate being the same, no contest can arise between the heir and executor, as to their respective liabilities; and it is of no importance to the heir, whether the creditor of his ancestor is satisfied by the executor or by himself.
    Estates here frequently descend to a great number of heirs ; and the ancestor often has lands in the adjacent states, as well as in ibis. In a distribution among heirs, in such a case, it is convenient that each should take his whole share in the same state; ana it would certainly be more just, as well as more convenient, that all should be liable together, for a claim against their ancestor, than that one or two should be answerable for the whole, and be compelled to submit to hardship, or be turned round to pursue a doubtful remedy against the others for a contribution.
    The plaintiff is an assignee, and is compelled to pursue his remedy in this county. If he cannot maintain this action, he is without redress. His right to a compensation for the loss of his land is manifest. And it is equally clear, that the compensation ought to come from the defendants, who inherit the estate of the warrantors.
    
      
       14 Vin. Abr. 569, pl. 5.
    
    
      
       9 Mod. 124. — 2 Vent. 53. — 12 Mod. 225.-2 Vent. 4. -14 Vin. Abr. 565, pl 5,6
      
    
    
      
       1 Strange, 665.
    
    
      
      
        Popham, 155, Bowyer vs. Rivet.
      
    
   The Court

said that lands descended in another state cannot be considered as assets in this state. Of consequence, the plaintiff was not entitled to recover against the defendants, and he must therefore be called,

Plaintiff nonsuit. 
      
      
         [Doolittle vs. Lewis, 7 Johns. Ch. Rep. 5. — Morrill vs. Dilkey, 1 Johns. Ch. Rev 153.— Williams vs. Storrs, 6 Johns. Ch. Rep. 353. — Ed.]
     