this construction was wrong,
this construction was wrong,
The section seems to have been drawn, with an eye to the case of The Executrix of Christmanv. The Administrator of Fritz,(13 Serg. Rawle1), where it is held \" that in a suit against an executor, the heirs of the testator, to whom land has descended, maybe permitted to appear and take defence, in the name of the executor.\" The attention of the legislature being directed to the subject by that decision, it was thought right that the parties interested should have an opportunity to take defence in such cases, and hence it was directed that those entitled to the real estate to be charged, should be made parties to the suit. I am rather Coach Outlet Online inclined to confine the interpretation of the section to this class, because, such has been the construction of the Act in perhaps a majority of the judicial districts, and to decide now that this construction was wrong, would unsettle many titles held on the faith of it. A different practice has prevailed in other parts of the State, but the construction now given can produce no injury there, as making them parties cannot affect the titles, utile per inutile non vitiatur.This is therefore the safest course, and if the legislature choose to extend it to judgments, it can be done, without any danger to existing titles. Besides, the Act of the 4th of April 1798, 3d section, points out the mode of proceeding in a scire faciason a judgment against executors and administrators, and there is nothing in the latter Act which satisfies me that it was intended to alter and supply that Act in this particular. I do not put the case on [M\'MUlan v. Red.]
the 33d section, because that section is drawn Christian Louboutin On Sale in reference to Leiperv. Levis,(15 Serg. Sf Rawle108), and in affirmance of the principle there decided, and consequently has no bearing on this question. In Chambersv. Carson,(2 Whart.365), it is ruled, that a scire faciason a mortgage is not within the section, and that it is not Coach Factory necessary to make the widow, heirs, or devisees, parties. It frequently happens, that from want of due precision in the language of Acts of the legislature, or from some intrinsic Coach Purses Canada difficulty arising from the subject of the enactment, different interpretations are given, not without plausible arguments, in the various judicial districts. And when this is the case, whatever may be our impressions, considering the point entirely new, we feel ourselves bound to avoid that interpretation which tends to unsettle titles.
Huston,J., dissenting.â€\"Whether the practice on a scire faciasof directing the sheriff not to serve Coach Factory Store the writ, but to return nihil,though hesaw the defendant every day, and MBT Shoes on a second scire faciasand similar return, to sign a judgment, was or was not consistent with a first principle of justice, viz., that no man\'s property should be taken without an opportunity of being heard, I shall not discuss. After long submission to this practice, Coach Outlet the legislature attempted to change it; and by the 39th section of the Act of 13th of June 1836, it was enacted \" In every casein which a writ of scire faciasmay MBT Shoes Sale by law be issued, it shall be served and returned in the same manner as is herein before provided, in case of a summons in a personal action; and judgment for default of appearance may be taken at the same time and in the same manner as in the case of a summons, as aforesaid, unless it be otherwise specially provided.\"The summons in a personal action was to be served by reading it to him, or giving him notice, or leaving a copy ten days before the return.
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