dissenting. — Whether the practice on a scire facias of directing the sheriff not to serve the writ, but to return nihil, though he saw the defendant every day, and on a second scire facias and similar return, to sign a judgment, was or was not consistent with a first principle of justice, viz., that no man’s property should be taken without an opportunity of being heard, I shall not discuss. After long submission to this practice, the legislature attempted to change it; and by the 39th section of the Act of 13th of June 1836, it was enacted “In every case in which a writ of scire facias may by law be issued, it shall be served and returned in the same manner as is herein before provided, in case of a summons in a personal action; and judgment for default of appearance may be taken at the same time and in the same manner as in the case of a summons, as aforesaid, unless it be otherwise specially provided.” The summons in a personal action was to be served by reading it to him, or giving him notice, or leaving a copy ten days before the return.
But there are cases in which it is, otherwise specially provided. By the 34th section of the Act about executors and administrators, of 24th of February 1834, it is enacted, “ In all actions against the executors or administrators of a decedent who shall have left real estate, where the plaintiff intends to charge such real estate with the payment of his debt, the widow and heirs or devisees, and the guardians of such as are minors, shall be made parties thereto: and in case such widow and heirs or devisees, or their guardians, reside out of the county, it shall be competent for the court to. direct notice of the writ issued therein to be served by publication or otherwise, as such court may determine by rule of court, and if notice of such writ shall not be served on such widow and heirs or devisees, or their guardians, the judgment obtained in such action shall not be levied or paid out of the real estate of such widow, heirs, or devisees, as shall not have been served with notice of such writ.”
■ Section 35th, " In every case of an execution against the execu*240tors or administrators of a decedent, whether founded on judgment against the decedent in his lifetime, or upon a judgment against them in their representative capacity, if it shall be made to appear to the satisfaction of the court issuing such execution, that there is reason to believe that the personal assets are insufficient to pay all just demands upon the estate, the court shall thereupon stay all proceedings upon such execution, until the executors or administrators shall have made application to the proper Orphans’ Court for the sale of the real estate of the decedent, or for apportionment of the assets, or of both, as the case may requireand the next section gives power to the court, on application of the plaintiff, or any one interested, to compel executors or administrators to proceed and sell, by attachment.
It was stated and in fact appears in the notes to Purdon, 6th edition, 447, that in some districts, the provisions of this law are not regarded. In some judicial districts, the courts enforce obedience to them. The matter is now first brought before this court, and in plain English, the decision is reversed, because the court thought themselves bound by the law as cited, on the ground that by confirming this decision we may shake some titles. Both the former and present Chief Justice had regretted that there was not a provision for notice to heirs, devisees, and purchasers, before their lands could be taken. I shall not enter on the question of the wisdom or policy of the law. I dissent from reversing a judgment, because the court considered themselves bound by the plain words of an Act of Assembly.
Judgment reversed, and a .venire facias de novo awarded.