(Grimke's Exors. 451,) founded on the rule of law that the personal assets were to be exhausted before the land should be sold. The administrator has no direct power over the lands. He is liable as any other person for a trespass, and yet indirectly he has power to supersede the rights of the heir.

NOTT, J.-If the administrator plead the plea of plene administravit and shews that he has administered all the assets, the plaintiff may allege that there are lands, and it has been the practice to suffer the plaintiff to take judgment against the lands.

Rogers-He thought that proceeding very proper, but the heir should have notice He should have the opportunity to investigate the correctness of the plea of plene administravit. If the rule contended for in this case was sanctioned, the heir may be defrauded in every case; for as he knows nothing of the suits for and against the administrator, a creditor might take out execution against the administrator, entirely without the knowledge of the heir, and before the heir could possibly know, the sheriff

hands of the defendants to be administered. The court will not lay hold of this objection which was not made at the trial, to deprive the defendant of a new trial. But it is recommended to the defendant, to apply to the district court to amend the judgment, before the new trial takes place; for sheriff's sales ought to be favored and supported as far they legally may.

A new trial was granted. (a)

Note. In Massachusetts, at an early period of their government, the county courts had jurisdiction in testamentary matters. In the beginning they so far followed the civil law, as to consider real estates as mere bona, and they did not confine themselves to any rules of distribution then in use in England. See Hutchinson's Hist. of Massach. vol. 1. p. 393.

(a) See Hayw. 43 65 35 92 Baker vs Webb, and Bell vs Hill. See 2 Johnson's N Y. Term. Rep. 251. Lands liable to payment of debts by Stat. 5 Geo; 2. c. 2.

may have sold his freehold and made a title of it to another. The heir cannot be deprived of his rights until he has been made a party to the proceeding. He may be absent from the part of the country where the lands lay or where the administrator resides, and the whole transaction from the beginning of the suit to the sale of the land might be consummated without the knowledge of the heir. It would be committing the lamb to the wolfe. The courts are said to protect the heir. But in this case the administrator had confessed judgment, which was a confession of assets, and this valuable tract of land was put under the hammer to pay the small balance on the judgment.

Wallace Thompson-same side-Cited Webber vs. Higgins, in Equity.

Williams in reply.

CURIA, per COLCOCK, J.-The counsel for the appellant has presented some strong arguments against the construction which has been long given to the statute of Charles in this state, and pointed out very clearly the technical difficulty which has resulted from that construction, of selling one mans land under a judgment and execution obtained against another. But even if the objections were greater we could not at this day depart from that construction which the statute has received for 20 or 30 years. For by doing so we should jeopardize one half of the landed estates in the country. Since the construction which was given to the statute by which lands have been considered as equally liable to the debts of the ancestor as chattels, it would not be venturing too far to say that two thirds of the valuable land in the state have passed through different hands. But when we lay aside those distinctions between land and personal property which arise from feudal doctrines, the principal objection to the construction which has prevailed here, is, that it

operates to deprive the heir of his land without his knowledge and often times when the personal estate has not been all disposed of.

But upon a little examination we shall find that from the changes which have taken place in our laws of descents, and in the relative value of real and personal property, that these objections have lost much of their force, and that in truth nothing remains but the technical objection; and the force of that is much diminished by the adaptation of the legal process to the construction which has prevailed.

By the act of 1791 there is now no individual who stands in that relation to the executor or administrator that the heir at law did, and consequently there is not that collision of interest which subsisted between them.

(a) The land as well as the personal property is distributable among all the children in equal shares. So that in a case of intestacy all the family are interested in the land; and therefore it is not very important which is sold first the land or personalty. And in the case of a devise of land, the 3 and 4 Wm. & Mary, Ch. 14, destroys the old common law notion that the devisee by taking as a purchaser excluded the creditor, and the lands devised are still liable to the debts of the testator. The devisee then may very easily protect his rights by making enquiry into the affairs of the estate, as he would have an undoubted right to do. Where the whole family are interested in the land, it would be often times a great hardship to compel the executor or administrator to sell all the personal estate before the land; for it frequently happens in the present day that the personal is more valuable than the real estate, and it would amount to a serious injury to pursue the old common law doctrine which was intended

(a) See Hall vs. Hall, 2 M'Cord's Chancery Reports. 302.

for the benefit of the heir. The technical objection has induced many persons to make up their proceedings in such a manner as to show a full administration of the personal estate and then to suggest that there are lands, but this in fact did not remove the difficulty, for it did not operate as a notice to the heir or devisee. But this practice fell into disuse, for it was said if the land was equally liable with the personalty why say any thing about it in the record, it is enough, to frame the execution in such a manner that the land may be taken by virtue of it and sold. Nothing is said in the proceedings generally against a debtor as to the particular kind of property which he possesses. It was therefore enough to convert the old fi. fa. which it is admitted was a process operating at the common law only against personal property, into an execution against the lands also, and this is now invariably done. So that notwithstanding the true interpretation of the statute of Charles may have been that the land should be made liable by proceedings against the heir or devisee, yet in fact the purpose is sufficiently effected by our mode of proceeding, and the well established doctrines as to the rights of devisees.

Motion Dismissed.

Survivors of HALLS, KIRKPATRICK, & Co. vs. Coe, GREEN, & RANDOLPH.

One of sevaral co-partners can discharge his iudividual debt to a third person, by releasing or giving a receipt to such person for a debt due by him to the firm.

Coe, Green, and Randolph had been partners in the business of Blacksmiths. Coe was the only blacksmith, and was the acting partner in attending to the business of the concern. On the 17th of January, 1822, Green introduced Coe as a partner of Coe, Green, & Randolph,

to Halls, Kirkpatrick, & Co. and requested them to let Coe have whatever might be wanted for the shop on account of Coe, Green, & Randolph. The firm of Coe, Green, & Randolph was dissolved in January, 1823, though the dissolution was not known to Halls, Kirkpatrick, & Co. before February 1823, and not published until April 1823. On the 13th February 1823, the account against Coe, Green, & Randolph amounted to $593 82. Halls, Kirkpatrick, & Co. had also a running account against Coe individually, which on the 31st of August, 1822, amounted to $248 75, and in September 1823, to $388 75. Coe, Green, & Randolph had an account against William Hall, one of the partners, amounting in December 1822, to $156 37. Coe, Green, & Randolph held Hayne's order for $74 43, and Levy's order for $45, in their favor, drawn on and accepted by Halls, Kirkpatrick, & Co. some time in the year 1822. On the 31st of August 1822, Coe being at the store of Halls, Kirkpatrick, & Co. they requested him to settle his private account. He said he had not the money, but that they might charge his private account, amounting at that time to $248 75, to Coe, Green, & Randolph; he at the same time gave them in the name of his firm a receipt for so much money on account. In February 1823, before the dissolution of the firm of Coe, Green, & Randolph was known to Halls, Kirkpatrick, & Co., Coe settled $248 75 of his private account with Halls, Kirkpatrick, & Co. by giving a receipt for the shop account against William Hall, and by giving up Hayne's and Levy's orders to Halls, Kirkpatrick, & Co. who accepted their account against Coe individually for that amount, and applied the balance of $29 37, as a credit on their account against Coe, Green, & Randolph, leaving a balance of $564 45, for which this action was brought. Green and Randolph were not consulted by Halls, Kirkpatrick, & Co. in relation to this settlement,