I adhere to the opinion which I expressed in King v. West, (10 How. Pr. 335.) The liens referred to in the 136 th rule of the Court of Chancery, in the Supreme Court rule formerly numbered 48, and in the most recent edition of the rules, 76, are those which subject the estate to be sold under execution without any further intervention of the court. Questions which constitute issues can only be decided in an action commenced for the purpose of their adjudication, by the mode of trial provided for the determination of issues, duly joined on the pleadings by the respective parties. This can not'be done on a mere collateral reference in an action commenced for another purpose. If such a practice can be permitted, it would alter the whole character and method of legal procedure. The authorities referred to by the counsel of the mortgagee do not sustain
The judgment should be affirmed.
Order reversed.
Geo. G. Barnard, Clerke and Sutherland, Justices.]