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COOMBS v. JORDAN. 301
gular instance in which lands held in fee simple might become
assets in the hands of an executor; and, as such, liable, by the
common law, to be taken and sold for the payment of the debts of
the deceased to whose estate the perquisite had accrued. But as
villenage has long since ceased in England, this law has certainty
become obsolete there; yet I can see no reason why the same law
might not be applied in Maryland as to any real estate which
might be conveyed to a slave with the consent of his master, who
held him as an executor or administrator, (r)
Where a man by his writing obligatory under seal bound him-
self and his heirs for the payment of a sum of money and died,
leaving an estate in lands which descended to his heir; the credi-
tor, on obtaining judgment upon his obligation against the heir,
might, by the common law, not by any statute, take in execution
all the lands which descended to the heir; although he could not
have had execution of any part of them against the ancestor him-
self. This ensued as a necessary consequence of allowing the
ancestor to bind his heir as well as himself for the payment of a
debt. For, having given an action against the heir, the creditor
could have had no fruit of his action unless the lands descended
could be taken in execution; because the goods and chattels of
the deceased belong to his executor or administrator, and the lands
only descend to the heir; and neither of them could be charged
further than to the amount of the assets which came to his hands.
But if the obligee sues and obtains judgment against the obligor,
in his life-time, the debt is placed upon a new and a different
foundation; and the claim becomes extinct as a debt resting upon
a security by which the heir is bound. The judgment extinguishes
it as a bond debt, and discharges the heir. And therefore, a bond
creditor who has thus obtained judgment cannot after the death
of the ancestor, by a scire facias, or in any other manner charge
the heir, or affect the lands which may have descended to him.
Whence it appears, that, in some instances, at common law, a
creditor might be in a better situation before than after he had
obtained a judgment against his debtor, (s)
In all cases, at the common law, if the party who should be
(r) Hall v. Mullin, 5 H. & J. 190; Cunningham v. Cunningham, Cas. Conf.
North Carol. 353; Walker v. Bostick, 4 Desau. 266.—(s) Davy v. Pepys, Plow.
439 Sir William Harbert's case, 3 Co. 13; Drake v. Mitchell, 3 East 258; Kinas-
ton v. Clark,2 Atk, 2W; Galton v, Hancock, 2 Atk, 428; Stileman v. Ashdown, 2
Atk. 609; Powel Mortg. 598, 777,
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