450 JONES v. JONES.

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 lifetime of the defendant, his real estate may be inter-
cepted 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 interest cannot be allowed, in any manner, to retard, or
turn aside the execution which had been thus, in fact, or by rela-
tion, sued out in the lifetime of the debtor.(r) Whence it clearly
follows, that the sale of Jesse Jones9 lands made after his death
under the fieri facias issued on Dawson* s judgment was, in all
respects, regular and lawful.

The next inquiry.is, how far the judicial proceedings, to which
the real estate of Jesse Jones has been subjected, have produced a
Change in its character, or converted it from realty into personalty ?
And if it has been so converted, then it will become necessary to
ascertain the exact point of time at which that very important
change was definitively effected.

The writ of fieri facias commands the sheriff to have the money
in court, there publicly to pay the party. He may himself pay the
plaintiff; but if he does so, it will be at his peril; for he is only
perfectly safe in bringing the money into court, according to the
express command of the writ. The sheriff cannot deliver the pro-
perty taken in execution to the plaintiff in satisfaction of his
claim; he must sell it and bring in the money. The property of
the defendant is to be taken and converted by a sale into money ;
and hence, if the judgment be afterwards reversed by writ of error,
the defendant shall not be restored to the thing in specie, but the
money for which it was sold; for the fieri facias gave the sheriff
authority to levy the money of the goods, so that he was obliged
to turn the goods of the defendant into money; and therefore, the
restitution must be of what the execution had taken from him,
which was money, and not the thing itself, for then no body would
buy.(s) These are the well settled principles of the common
law in relation to personal property taken in execution under a
fieri facias; and the statute having made lands liable to the
payment of debts, and subject to the like remedies and pro-
cess as personal estate,—it follows, upon the same principles, that

(r) Sir William Harbert's Case, 3 Co. 12; Winstead v. Winstead, 1 Hayw. Rep.
245; Beatty v. Chapline, 2 H. & J. 19.—(s) Gilb. Exeeu. 16 & 20.