424 JONES v. JONES.—1 BLAND.

from him. Yet, if before a sale the defendant pays to the sheriff
the whole debt and costs, he is bound to re-deliver the property so
taken in execution. The Statute of Frauds was intended for the
benefit of purchasers and creditors only; therefore, still, as relates
to the party himself, the judgment and fieri facias relate to the
first day of the term, or at least to the tcste of the writ; so that if
it be tested in the defendant's life-time it may be taken out and
executed after his death. Tidd Pra. 915; Pow. Mart, by Coven.
275, 280, 515; Odes v. Woodward, 2 Ld. Raym. 850; Bragner v.
Langmead, 7 T. R. 20; Docura v. Henry, 4 H. & McH. 480. And
so, on the other hand, if the plaintiff dies, after a fieri facias has
been sued out, it may nevertheless be executed. And as the writ
commands the sheriff to bring the money into Court, it is his duty
to do so accordingly, so that it may be there deposited to be paid,
if the plaintiff be dead, to his executor or administrator, when he
shall appear; or, if the defendant be dead, that the surplus, if
any, may be paid to his legal representatives when they may come
prepared to shew their right to it. Tidd Pra. 915. Hence it is
clear, that this positive command of the writ, virtually and neces-
sarily intercepts the property in its course, and evicts it from the
hands of the executor or administrator of the deceased defendant,
who died after it bore teste. Wilbraham v. Snow, 2 Saund. 47;
Oades v. Woodward, 7 Mod. 94; Dr. Needham's Case, 12 Mod. 5;
Waghorne v. Langmead, 1 Bos. & Pul. 572; Robinson v. Tonge, 3 P.
Will. 400.

These are the well settled principles of law in relation to the per
sonal property of the defendant against whom the fieri facias
issued. But, as in England, real estate cannot be taken in execu-
tion under a fieri facias, there are no English adjudications in re-
lation to a case, like this, where the fieri facias had been levied
upon the real estate of the debtor. But, the statute, 5 Geo. 2,
c. 7, which subjected lands to be sold for the payment of debts
has been so interpreted, and carried into effect here, as to make
no distinction whatever between the debtor's real and personal
estate, so far as may be affected by any execution bearing teste in
his life-time. Harney v. Patterson, 6 H. & J. 182; Davidson v.
Beatty, 3 H. & McH. 616. And therefore, by analogy to the prin-
ciples of the English law, applicable to an execution against the
personalty, it has been held * in this, and in other States,
in which this English statute has been received, that by a
fieri facias which bears teste, or has been levied, during the life-
time of the defendant, his real estate may be intercepted in its
descent and evicted from the hands of his heir; who, if he happens
to have obtained actual possession of the estate after the death of
his ancestor, will be treated merely as a terre-tenant, whose inte-
rest cannot be allowed, in any manner, to retard, or turn aside the
execution which had been thus, in fact, or by relation, sued out in