420 JONES v. JONES.—1 BLAND.

hands of the sheriff whose official term must have since expired,
and who has been brought here as a defendant, uuassociated with
any personal representative of the intestate. These circum-
stances present a case in which it becomes necessary to determine
the extent of the power of the sheriff to follow out, after the death of
the defendant, * the authority conferred on him by the fieri
445 facias he had previously levied; and if it should appear,
that his authority to proceed with the execution was well founded,
to ascertain whether the surplus of the proceeds of the sale, so
made, is to be considered as real assets to be taken from the hands
of the heirs, or to be accounted for as personal assets by an admin-
istrator of the intestate; and also to inquire whether there is any
mode in which this Court, by any exercise of power within its own
legitimate sphere, can compel an officer of another and a superior
tribunal to place a fund, now in his hands by their authority,
under the direction of this Court to be disposed of as prayed by
these plaintiffs.

fit was a well settled principle of the common law of England,
that the real estate of a debtor could not be taken in execution at
the suit of a citizen creditor, and sold for the satisfaction of the
debt. This rule was considered as a fair and necessary result
from the nature of the feudal tenures, according to which all the
lands of that country were held. And, as the most liberal species
of those tenures was expressly declared to be that by which all
the lands of Maryland should be held, it followed, that real estate
could be no further subject to be taken in execution here than the
same kind of estate was liable in England. Charter of Maryland,
s. 5 & 18; Gilb. Excli. 89.

In the case of the king, however, an execution always issued
against the lands as well as the goods of a public debtor; because
the debtor was considered as being not only bound in person, but
as a feudatory who held mediately or immediately from the king;
and, therefore, holding what he had from the king, he was from
thence to satisfy what he owed to the king. Gilb. Execu. 3. As a
consequence of this liability, and for the public benefit, if a judg-
ment was obtained against a public debtor by the king, he thereby
acquired a lien upon the real estate of such debtor, which took
effect not merely from the date of the judgment, but by relation
from the commencement of the suit to the exclusion of all subse-
quent iucumbrances. Pow. Mort. by Coven, c. 23. s. 9; Gilb. Exch.
93; Rorke v. Dayrell 4 T. R. 410; Sug. Pow. 184. In England,
the king's debt is preferred in execution and in the administration
of a deceased's estate, to that of a citizen; which right of prefer-
ence was in Maryland extended to the Lord Proprietary. 1650,
eh. 28. After our Revolution it was held to have devolved, ac-
cording to the principles of the common law, upon this State; The
State v. Rogers, 2 H. & McH. 198; Hollingsworth v. Patten, 3 H. &