Union Bank v. Administratrix, Heirs & Tenants of Meigs ( 1832 )

Wright, J.,

delivered the opinion of the court: ’

We will now only consider one of the several questions dis-, -cussed on this demurrer. Is the writ of scire facias and return sufficient to give the plaintiff a right to execution ? *The writ in this case stands in the place of a declaration, and must show in the plaintiff a title. This scire facias contains no suggestion of any particular real estate of which the intestate died seized, and which it is sought to chargo in execution, or that any particular - person is tenant of any real estate, late the property of the-decedent. The return leaves everything equally uncertain.. How can the court award execution against any particular land upon such a proceeding? In McVickars v. Heirs of Ludlow, 2 Ohio, 246, this court say, “Writs of this description are entered on the record with a mere formal charge, etc., as the declaration in the cause. They, must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must contain everything that is required' to show a right in the plaintiff to the relief prayed for.” “The scire facias contains an averment that lands descended to the defendants from their ancestor, but what lands, or of what value, or whether they are now' held by the heirs subject to execution or not, does not appear either in the writ, or in the return, or in any part of the record. And if a judgment should be rendered in this case, there is nothing to guide the officer in making the levy; or if the lands descended have been sold under such circumstances as place them beyond the reach of the judgment creditor, there is nothing from which the value of the assóts can be ascertained. Although the statute is silent on this point, yet the nature of the claim set up,. and the uniform practice of courts in similar cases, require that • the lands which may have descended should be set out in the body of the writ, or ascertained and described in the sheriff’s return. The latter course seems to be the practice in the courts of. Westminster. The propriety of ascertaining the lands, or their value, will appear from this consideration that the heir is not answerable beyond the amount of assets descended, and it may be that he has paid other claims against his ancestor to the amount-■ of the assets which came to him by descent. 1 Strange, 665.” In Wolf v. Pounsford, 4 Ohio, 397, the case of McVickars v. Heirs of Ludlow is cited and confirmed. The court in the last-named case • declined to settle the practice, and left the subject open, with the remark, “ That the plaintiff must *see that in some part of the proceedings the assets are shown to have descended to the heirs, so that an issue may be formed, and the matter reduced to a1certainty.” We think the better practice would be to make the suggestion in the writ of what lands are descended, by whom held, and to set out all the material facts essential to the right to.' •proceed against the particular estate he seeks to charge. Upon the authority of these cases this writ is clearly bad.

The demurrer is sustained, but the plaintiff has leave to amend •upon payment of costs.

We leave the other questions in the case wholly unnoticed.