Leonard vs. Scarborough and wife et al.

one of them seized the chattel and sold the whole of it, and paid over the whole money to the judgment creditor. The other partowner of the chattel brought trespass against the Sheriff, and it was resolved by the Court that although the Sheriff might seize the whole, yet, that he ought not to have sold but the share of the judgment debtor, and that the subsequent abuse of his authority made him a trespasser ab initio.

In Mersereau vs. Norton, 15 John. R. 180, it was held by the Supreme Court of New York, that an attachment issued in pursuance of the act against absconding and absent debtors, the Sheriff may take and sell property of which the absconding debtor is a tenant in common with another, though it be in possession of his co-tenant. But the Sheriff can sell only the undivided moiety or interest of the debtor, and the purchaser at such sale becomes a tenant in common with the other co-tenant, who cannot therefore maintain trespass or trover against him, the tenancy in common not being severed or destroyed by the sale.

The Court say, "the only question which appears to be raised in the Sheriff's return is, whether a Sheriff, under an attachment like this, has a right to take and sell property of which the absconding debtor was only a tenant in common, when that property was found in the possession of the other co-tenant? Of this there can be no doubt. There is no other way to get at the interest of the one against whom the attachment issues. The Sheriff in such case seizes all, and sells a moiety thereof undivided, and the vendee becomes tenant in common with the other partner. Although the Sheriff sold the oxen as the sole property of Norton, yet no more than his interest passed, and the co-owner became tenant in common with the purchaser. The Sheriff who took the oxen and all who aided him and the purchaser, must certainly have all the rights and interests of Norton, the absconding debtor; and one. tenant in common cannot maintain trover or trespass against his co-tenant." Littleton, sec. 323; 2 John. R. 468. "The sale by the Sheriff was not such a destruction of the property as to work a severance of the tenancy in common." Wilson & Gibbs vs. Reed, 3 John. R. 176; Sheldon vs. Skinner, 4 Wend. R. 525; Dunham vs. Murdock, 2 Ib. 553.

I take, then, as settled, that no reported case can be found which denies the right of the Sheriff to seize and sell the share of the judgment debtor, whatever that may be. What, then, would be equity in the present case? A course something like this would

Dill and others vs. Jones.

estimate the value of

appear to mete out justice to all concernedthe whole property conveyed by Miles Bembry to his grandchildren, and if it shall be ascertained that David Scarborough, in right of his wife, has not received more than his share, there should be a general finding for the defendant; if, however, Dinah and her children, that were sold, exceeded a share, then the owners of the slaves bought at the Sheriff's sale should refund three-fourths of the excess, and each in proportion to the value of the property, which he holds. Upon a bill filed for a division among the original parties, this is virtually what David Scarborough would have been decreed to do, aud the purchasers under him stand in his shoes.

The judgment, therefore, below, must be reversed.

No. 11.-JOHN DILL, JAMES BUCHANNON, AND SIMEON GREENE, plaintiffs in error vs. Gabriel JONES, defendant in error.

[1] Where there has been a judgment entered up against the securities on the appeal in the Court below, they should be made parties plaintiffs to the writ of error; and, if they are not so made parties, the writ of error will be dismissed.

Motion to dismiss writ of error.

The case brought up by this writ of error was tried in Randolph Superior Court, on an appeal before Judge Warren, at October Term, 1846, and resulted in a judgment against the appellants and their securities on the appeal; all of whom, except one of the securities, were joined in the writ of error as plaintiffs.

For the grounds of the motion to dismiss, and other particulars of the case, see the decision of the Supreme Court.

STURGIS, JONES, CARUTHERS, KIDDOO and TAYLOR, for plaintiffs in error.

BROWN & BOWER, for defendant in error, in support of the motion to dismiss, cited, 1 Ala. R. 27, 275, 285, 208; 3 Com. Dig. 268; 3 Day R. 144.

Dill and others vs. Jones.

By the Court-WARNER, J. delivering the opinion.

error.

In this case, John Dill, James Buchannon, and Simeon Greene security on the appeal in the Court below, sued out their writ of error returnable to this Court, against Gabriel Jones, defendant in The counsel for the defendant in error now moves the Court to dismiss the plaintiffs' writ of error, on the ground of the nonjoinder of Abner W. Jones, a co-defendant in the judgment of the Court below. It appears, from an inspection of the record, that Simeon Greene and Abner W. Jones were securities on the appeal in the Court below, and that judgment has been regularly entered up against them as such securities. Simeon Greene is made a party plaintiff in the writ of error, but Abner W. Jones is [1.] not made a party plaintiff; and the question now made is, whether he ought not to have been made a party plaintiff in this Court. Mr. Tidd, in his valuable book of Practice, states the rule to be; " on a judgment against several parties, the writ of error must be brought in all their names, provided they are all living and aggrieved by the judgment; for otherwise this inconvenience would ensue, that every defendant might bring a writ of error by himself, and by that means delay the plaintiff from his execution for a long time." Tidd Prac. 1053.

In Swift vs. Hill, 1 Porter R. 277, the judgment in the Court below was rendered against Swift, and one William Harris his security, on an appeal bond. The writ of error was prosecuted in the name of Swift alone, and the defendant insisted for this cause, the writ should be quashed. Chief Justice Saffold, who delivered the opinion of the Court, said: "both defendants in the judgment should have been made parties to the writ of error; the same not having been done, the writ must be quashed.”

By the Act of 20th December, 1826, Prince Dig. 461, the plaintiff is authorized to enter up judgment against the security on the appeal as well as the principal, and execution may issue against either, or both, at the option of the plaintiff, until he is satisfied. The security on the appeal, would also be liable for the ten per ct. damages, provided there was no certificate, as provided by the Act of 1845 organizing the Supreme Court.

We are therefore of the opinion, Abner W. Jones was directly interested in the decision of this Court to be made in the case brought before it, by the writ of error, and that he ought to have been made a party plaintiff thereto; which not having been done, the writ of error must be dismissed.

Ex'rs of Henderson vs. Alexander, adm'r.

No. 12.-Executors of MAJORS HENDERSON, plaintiff in.error, vs. MOSES H. ALEXANDER, adm'r of MOSES ALEXANDER, defendant.

[1.] Under the Judiciary Act of 1799, where both plaintiff and defendant die before scire facias has issued to make parties, the action does not abate; but parties may be made and the action proceed.

Scire Facias to make parties after death of both plaintiff and defendant. Returned before Judge WARREN, in Randolph Superior Court, and overruled October Term, 1847.

For the facts of the case, see the opinion of the Supreme Court.

ALEXANDER MCDOUGALD, GRIGSBY E. THOMAS, H. J. DEVON, and WILLIAM TAYLOR, for the plaintiff in error.

HINES HOLT & HENRY L. BENNING, for the defendant in error.

Messrs. McDoUGALD & THOMAS, of counsel for the plaintiff in error, cited and commented on the following authorities: Prince Dig. 422, 419, 570, 911; 1 Black. Comm. m. p. 91, 88, 60, t. p. 40, n. 12, m. p. 89, 90, 61, 86, n. 25, t. p. 61, n. 30, t. p. 60, n. 26, m. p. 86, 87; 6 Jacobs Law Dic. 19, 17, 18, 21, 25; 1 Wils. 315; 1 T. R. 388; 11 Vin. Abr. 1; 19 Vin. Abr. 280; 2 Bac. Abr. 128; 6 Bac. Abr. 102; 2 Saund. 72; 3 H. Plead. 436; Bou. Law Dic. Scire Facias; Hob. 346; Plowd. 109; 3 Co. 7; Tidd's Pr. 848; Toll. on Exec. 422; 7 T. R. 31; 1 Salk. 8; 1 Sel. Pr. 187; Arch. Pr. 76; Bac. Abr. Schley's Dig. 288, 246, 247, 290; Jeremy's Eq. Juris. 306, 399; 19 Johns. R. 173; 2 Burr; Act of 1845, 40; 3 Blac. Com. m. p. 302, 399, n. 10; 2 Saund. R. t. p. 72; 2 Tidd's Pr. t. p. 1116, 1119, 1095; Tidd's Ap. t. p. 324, 325; 4 Bac. Abr. t. p. 649, tit. Statute; 1 Salk. 319, 320.

By the Court-NISBET, J. delivering the opinion.

The facts disclosed in the record of this cause are as follows. Majors Henderson sued the defendant, Moses Alexander, in an action of debt, upon a promissory note. Pending the action, the defendant filed a bill enjoining it. This bill, after some years of litigation, was dismissed by the complainant, and left the Common Law action to proceed. There w f judgment for

Ex'rs of Henderson vs. Alexander, adm'r.

the plaintiff, and an appeal entered. In 1839, or 1840, the plaintiff died, and, at August Term, 1840, his death was suggested on the record of the Court below. On the 7th of January, 1841, scire facias issued to make the executor of the plaintiff a party, which was served on the defendant personally on the 14th of the same month; but no order was taken upon the return of the writ to make parties. The reason of this, we suppose is, that the executor of the plaintiff had been made a party to the bill, which held the action at law enjoined, until the April Term, 1843, when it (the bill) was dismissed. This accounts for there appearing to be no action on the scire facias, intervening its return and 1843. At October Term, 1843, the death of the defendant, Moses Alexander, is suggested on the record, he having died a short time previous. At the April Term following, the entry on the docket, is "no Parties." On the 3d of March, 1846, two other writs of scire facias issued, which were both served on the 20th of that month. Each of these writs recited the history of the case, and in each the administrator with the will annexed of the defendant, Moses H. Alexander, was notified to appear and show cause, why the executor of the plaintiff should not be made a party plaintiff, and why he should not be made a party defendant to the suit. At the April Term, 1846, an order was passed calling upon the administrator with the will annexed of Moses Alexander, deceased, to show cause why, in pursuance of the requirements of the writs, he should not be made a party defendant; and why one Sutliffe, who was the executor of the plaintiff, should not be made a party plaintiff. At the October Term following, an order was passed dismissing the two writs of scire facias, the presiding Judge determining that the action abated, because both plaintiff and defendant died after the commencement of the suit, and before the writs of scire facias were sued out, and therefore no parties could be made. To this judgment of the Court the counsel for the plaintiff excepted, and claims now that the decision was erroneous. We do not think that the bill in Chancery in any way affects this question, and shall therefore consider it wholly irrespective of that bill. Being dismissed, it had ceased to affect the case long before the judgment complained of.

[1] This question is one mainly of statutory construction; and, although confined in narrow limits, is one of no ordinary magnitude. Our opinion is, that the action in the case made by the record did not abate, and that the parties ought to have been made.

The counsel who argued this cause for the defendant in error,