time, it was impossible for the court to act, and then for the administrator to give legal notice of sale. It seems, therefore, to be an almost necessary conclusion, that the administrators did not consider an order, or direction to sell, founded upon the return of the valuers, as necessary to invest them with the power to effect a sale. We cannot otherwise account for their appointing and advertising a sale, even before the valuation was made, and, of consequence, before any power to sel, could be vested in them. They mistook their duty and their powers. We might as well attempt to sustain a sheriff's deed for land sold, on execution, where the pleadings were found, Lut no judgment, as to sustain the sale by the administrators, in this case. To divest the heirs of their estate, by the sale of the personal representative, that sale must be made in substantial compliance with the statute. This must appear in the record, or arise on a just implication from it. Here we have neither. The judgment must be for the plaintiff.

COWDIN v. HURFORD.

A foreign attachment cannot be sustained against one of several joint contractors.

This was a writ of error adjourned here for decision from the county of Jefferson. The original suit was an attachment sued out of the Court of common pleas, of Jefferson county, upon the affidavit of the defendant in error, filed in January, 1823. Upon the return of the writ of attachment, Joseph Hurford filed a declaration, charging the assumpsit upon Robert Cowdin. George Starr claiming to be creditor, filed his declaration in the same manner. Other dec. larations were in like manner filed. Thomas Stevenson counts "that Robert Cowdin jointly with one Robert Gilmore, they being then and there joint partners, made his certain receipt, &c. jointly with the said Robert Gilmore, by which said receipt, said Cowdin acknowledged," &c. The promise was laid, as made by the defendant in attachment, to the plaintiff. To all these declarations, the defendant in attachment, pleaded in abatement, because the undertaking, if any, was by said Cowdin and one Robert Gilmore, who is still living. Demurrers and joinders to the pleas. The Court below adjudged the several pleas in abatement insufficient, and gave several judgments, to reverse which, this writ of error is brought.

Tappan, for plaintiff in error. J. & D. Collier, contra.

By the COURT.

The writ of attachment appears to have been issued under the statute of 1810; but the subsequent proceedings have been had under the law, which took effect on the 1st day of June, 1824. The pleadings disclose the fact, that one of two partners lived in the county of Jefferson, and the other was not a resi dent of the state. The affidavit was made, and the writ issued against the ab. sent partner. The declaration charged him alone as the promiser, and the judg

the

ments are rendered against him without noticing the liability of the other partner. The correctness of the whole pleadings is fairly before the court, upon assignment of general errors. The question principally to be considered, is, whether in proceedings in attachment upon contracts, express or implied, where there are partners, it is necessary to charge them in the declaration, as in other actions. The thirteenth section of the act is in these words: "where two or more are jointly bound, or indebted either as joint obligors, partners, or other. wise, the writ of attachment provided for by this act, may be issued against the separate or joint estates, or both of such joint debtors, or any of them, in the same manner, and under the same restrictions as is provided for by this act in other cases."

Now this is merely directing the mode of proceedings in rem, where the defendants are joint obligors or partners; but neither dispenses with the proper parties to the suit, or with the necessity of pleading according to the established usages of law. It is not now necessary to decide whether the writ can in any case issue against partners, or others jointly liable, when one of the defendants is at the time resident within the jurisdiction. There is no just inference, however, to be drawn from this part of the statute, that the legislature intended to change either the form or substance of special pleading, so as to authorize a declaration and an assumpsit laid, or a recovery had against one of two or more partners, without noticing the liability of the others. It is further provided by the ninth section, "that the plaintiff in attachment, and every other creditor, at or before the third term, may file their declaration, setting forth, in a proper manner, their cause of action, &c. and the defendant may plead to any or all of the declarations." In legal parlance, the plaintiff cannot be said "to set forth his cause of action in a proper manner," when there is a joint undertaking by two, and the assumpsit is laid as made by one only. The declaration in this case neither accords with the law nor the facts. It ought not to be presumed that the legislature intended the facts should not be disclosed in the declaration, according to the settled legal forms. They have indeed used strong and unequivocal terms to the contrary. The Court feels great anxiety to preserve the rules of special pleading, which has been founded in wisdom, and are the safest guide of the profession. To depart from them, is at best, a danger. ous experiment; often leading to inexplicable confusion and great injustice.

Whatever effect was intended to be given to the writ of attachment, against the property of partners, or other defendants jointly liable, the Court is not able, from the most attentive examination of the statute, to discover any intention to change the law of pleading, or the final judgment to be rendered. Separate actions and independent judgments upon liabilitics, in their very nature joint, would be an innovation upon the settled principles of law, which cannot be permitted without the legislature expressed an intention to that effect, in the most clear and unambiguous terms. The Court are of opinion that the omission to join a living partner in the writ and declaration, is as fatal in attachment, if pleaded in abatement, as in any other form of action. The judgment is therefore reversed.

HILL . KLING.

On a sci. fa. to subject lands to execution on the judgment of a justice, it is not necessary that the constable should retain the execution from the justice thirty days--nor is it necessary to take a rule upon the defendant to plead to the sci. fa., and execution may be awarded by the com. pleas at the return term of the writ.

This was a writ of error to the Court of Common Pleas, of Richland county, adjourned here for decision from that county. The case was this:

On the 10th day of October, 1823, J. Kling recovered a judgment against S. H. Hill, before justice Gardner, in Richland county, for eighty dollars and fif. ty-four cents and costs. Upon this judgment execution issued on the 11th of October, which was returned on the 16th of the same month, that there was no goods whereon to levy; but it is suggested that the defendant was possessed of lands and tenements within this county.

Upon this suggestion, on the same 16th of October, 1828, scire facias was issued from the Court of Common Pleas, at the suit of Kling against Hill, to appear and show cause, on the 20th instant, why execution should not issue on the judgment against his lands. The sheriff returned the scire facias duly executed on the 18th of October, and at the October term of the same year, judgment by default, was rendered that execution issue to take the lands of Hill. reverse this judgment, the writ of error was brought.

The errors assigned, were:

Το

First. That on the judgment before the justice, execution issued on the 11th of October, returnable the 16th of the same month, which was a void execution, and laid no foundation for the scire facias.

The Second error assigned, involved the same proposition in different terms. Third. It was assigned for error that no suggestion was made on the transcript of the justice that the defendant held lands.

Fourth. It was error in the common pleas, to render judgment on default, at the return term of the scire facias.

Fifth. The judgment was rendered, without either rule or order on the defendant to plead.

Sixth. The writ of scire facias was insufficient.

Parish and Boalt, for plaintiff in error.

J. M. May, for defendant in error.

By the COURT.

The plaintiff in error insists: 1, That the constable's return having been made a short time after the execution came into his hands, is void.

2. That the Court below erred in rendering a judgment at the term to which the scire facias was returnable.

3. That it was error to render judgment without rule or plea.

The third and fourth errors appear to have no foundation in fact, the record containing, with sufficient certainty, the suggestion that the judgment debtor was possessed of lands and tenements.

1. This question depends upon different principles from that which might arise between the party, supposed to be injured by the return, and the officer. What might be the result of an action prosecuted against the constable, by the plaintiff in error, would depend on facts and circnmstances which cannot be collaterally determined between the parties to the record. The statute does not fix any day upon which constables shall make return of executions directed to them. Executions are to be returned within thirty days. The proceedings of a constable, unless the statute otherwise provides, are strictly analagous to those of a sheriff, and his legal responsibilities are the same. A sher. iff's return is parcel of the record, and in an action of debt upon it, nil-debit is no plea. 2 Saund. 344, n. 2. The sheriff cannot be permitted, either in plead ing or by evidence, to falsify his return. 6 Mass. R. 325. 7 Mass. R. 388. A scire facias lies to a sheriff's return, it is therefore a part of the record.― Croke James, 514. When the sheriff returns he has recovered a certain sum of money made by the execution, this shall charge him, although none was actually recovered. 8 John. R. 16.

These authorities shew that as between parties and privies, and the officer, except where the latter is charged upon its falsity, the return is matter of record, and therefore conclusive. The return is at the peril of the officer. If true, it is his protection; if false, he is responsible. If a return upon execution can be impeached, or falsified by the parties to the judgment, purchasers at sheriff's sales, whether of personal or real estate, would be without protection. It would be hard indeed, if it was at the peril of the purchaser whether the return was true or false, especially where he must be absolutely ignorant of the fact. The point was decided, (4 Day, 1) in a case where the bail was fixed, by the sheriff's return, before the return day of the execution.

2. The statute settles this point. The clerk shall issue a scire facias against such person to appear at the next term of the court of common pleas, and shew cause why execution should not issue, the court shall issue execution against the lands and tenements of such person, in the same manner as though judgment had been obtained in said court. The provisions of the statute clearly do not grant an imparlance to a term subsequent to the return of the scire facias.

Lastly, the rules of the common pleas are not exhibited, so that it cannot be ascertained whether they extend to a case like this. It is no doubt competent for that court to establish rules of pleading upon scire facias issued from justices' transcripts; but such rules could not extend beyond the return term. The statute makes this a summary proceeding, in order, no doubt, to fix a lien upon the defendant's lands, and prevent frauds upon the judgment creditor, by alien

ation.

In courts of record, this lien is created from the rendition of judgment.— Justice and sound policy require the same course when judgments are rendered before justices of the peace. But as these proceedings are less notorious, and the business of transferring lands too complicated for inferior jurisdictions, ths legislature intended to afford the most prompt and efficacious remedy in the courts of record.

This summary proceeding, expedited by the rules of court, as far as the law will warrant, can seldom operate injuriously or oppressively upon the debtor; but delay to the creditor might let in a paramount lien where there was no superior equity or justice.

Judgment affirmed.

BIGELOW v. BIGELOW.

Where the obligor is appointed administrator of the obligee, the debt is not thereby extinguished, but is merely suspended, and the debt becomes assetts in the hands of the obligor as adminis

trator.

This case was adjourned here for decision from the county of Licking. It was an action of covenant, and the material facts of the case are as follows:

On the 26th of April, 1815, Oliver Bigelow sold to Elihu Bigelow, a tract of land, and covenants in writing were entered into by which Oliver Bigelow agreed to convey the land, and Elihu Bigelow agreed to pay Oliver the purchase money, in instalments, of two hundred dollars on demand, and two hundred dollars yearly, from the date of the article until the whole be paid.

During the life time of Oliver Bigelow, several payments were made, and endorsed on the article. But before the contract was completed, Oliver Bigelow, deceased and letters of administration, on his estate, were granted to Elihu Bigelow, in virtue of which he became possessed of his own covenant to Oliver Bigelow. In his administration account Elihu Bigelow represented that there was due on this article to Oliver Bigelow, the sum of one hundred and eighty dollars. Whilst acting as administrator, Elihu petitioned the court under the statute, to complete the contract, by ordering a conveyance, in which petition he alleged that the whole purchase money was paid.

Subsequent to this Elihu died, and the defendants became his administrators. It was also ascertained that Oliver left a will appointing the plaintiff his executor, who proved the will, and took letters testamentary. And having by some means obtained possession of the article of agreement, instituted this suit.

At the trial the jury found a special verdict, finding that the article was the deed of Elihu Bigelow, and there was due upon it, to the estate of Oliver Bigelow, the sum of three hundred and nine dollars, and sixty cents. And that the present plaintiff obtained the article without the consent of Elihu Bigelow or his administrators. Upon this special verdict, and an agreement of the other facts stated, the cause was reserved to be decided here.

II. Stanberry, for the plaintiff. Dille, contra.

By the COURT.

The first question made, is, whether the appointment of a debtor administrator, extinguishes the debt, and eo instante turns it into assets.