The averments may be all true, and yet the debt may have been paid, or the time allowed to the administrators may not have expired. The scire facias contains an averment, that lands descended to the defendants from their ancestor, but what lands, or of what value, or whether they are now held by the heirs, subject to an execution, or not, does not appear, either in the writ, in the return, or in any part of the record. And if a judgment should be rendered in this case, there is nothing to guide the officer in making his levy; or if the lands descended have been sold; under such circumstances, as to place them beyond the reach of the judgment creditor, there is nothing from which the value of the assets descended can be ascertained. Although the statute is silent on this point, yet the nature of the claim set up, and the uniform practice of courts in chilar cases, require that the lands which have descended, should be set out in the b dy of the writ, or ascertained and described in the sheriff's return. The latter course seems to be the practice of the courts of Westminister.

The propriety of ascertaining the lands, or their value, will appear from this consideration, that the heir is not answerable, beyond the amount of assets de. scended, and it may be, that he has paid other claims against his ancestor, to the amount of the assets, which came to him by descent. (1 Stra. 665, Buckley v. Nightingale.)

But as no rule has been established by this court on the point now under consideration; and as it is not necessary to settle it, in order to decide the case in hand, we will leave this part of the subject open, and dismiss it for the present, with one additional observation, that the plaintiff must see, that in some part of the proceedings, the assets are shown which have descended to the heirs, so that an issue may be formed, and the matter reduced to a certainty.

Another defect is, that the scire facias does not show, that the assets, in the hands of the administrators, have been exhausted. Until this is the caso, the real assets cannot be made liable. It is contrary to the general policy of our laws, to subject real estate to execution for debt, until the personal property has been disposed of; and this principle applies as strongly in favor of heirs, charged with the debts of their ancestors, as in any other case, and perhaps more so. Before the lands of a defendant can be taken in execution in payment of his own debt, it must appear by the official return of the sheriff, that there are no goods and chattels to be found within his bailiwick. This is required by statute, aud cannot be dispensed with, in this or in any other case. For any thing that appears, the administrators may have assets in their hands, that can be reached without difficulty. The record does not contain any averment inconsistent with this supposition.

This is a fact that must not be left in doubt. It is a necessary part of the plaintiff's title, without which he cannot recover. If there be personal assets, he must pursue them, and if there be not such assets, he must ascertain the fact by the return of process, and distinctly state it as one of the grounds of his right to call on the heirs.

Inasmuch then, as the record does not show that the judgment against the ancestor of these defendants is in force, and unsatisfied, or that the time allowed by the court for the settlement of the personal estate had expired, before the issuing of the writ of scire facias, or that the personal property which came to

the hands of the administrators had been exhausted, the plaintiff cannot be allowed the judgment for which he prays.

Judgment below affirmed.

EDMISTON v. EDMISTON.

JUDGES BURNET AND SHERMAN.

1825.

It is error for the court of common pleas to direct a sci. fa. to subject lands to sale on the judgment of a justice, unless the transcript from the justice shows that an execution was returned, "no goods," and a suggestion made that the defendant owned land.

A transcript of a judgment rendered in favor of the plaintiff, before a justice of the peace, was forwarded to the clerk of the court of common pleas; on which a writ of scire facias issued, requiring the defendant to show cause why execution should not issue against his lands and tenements, to which a demurrer was regularly filed, on the ground, that neither the transcript, nor the scire facias contained any suggestion, or averment, that the defendant had lands and tenements, of which the debt could be made. Before a joinder in demurrer was filed, or a rule for joinder taken, the court overruled the demurrer on motion.

Mason, for the plaintiff. Jewett, contra.

By the COURT.

The remedy pursued in this case, is given by statute-it is therefore necessary to follow the course which it prescribes in every material point.

In order to entitle the plaintiff to have recourse to this proceeding, two things are necessary; first, that goods and chattels cannot be found within the jurisdiction of the justice; and secondly, that the defendant has lands and tenements within the county. The first is to be ascertained by the return of an execution, and the second by a suggestion made to the justice. Whatever may be the opinion of counsel as to the utility of attending to these requirements, it is enough for us to know, that the legislature have directed them, and have expressly made them the foundation of the jurisdiction of the common pleas. The scire facias cannot be resorted to until an execution has been returned nulla bona, and a suggestion made to the justice, that the defendant has lands and tenements within the county.

When this has been done, it is his duty to send a transcript to the clerk of the court, who is required to file it, and issue the writ. Unless the transcript set out these facts, the clerk cannot know officially, that a scire facias is either required or authorized, and unless they are set out in the scire facias, which ought to contain the substance of the transcript, the court of common pleas cannot know judicially that the case is within their jurisdiction. It is a general rule, that every record must present a case apparently within the jurisdiction of the ceurt, and when the jurisdiction is specially given by statute, and is to be resorted to only on the recurrence of particular facts, those facts must be shown, for however correct it may be to presume jurisriction, where the want of it

does not appear, in cases within the general jurisdiction of the court, yet where the jurisdiction is created by statute and limited to particular cases, of which the court could not take cognizance without the statute, the jurisdiction cannot be presumed. If the facts on which it is made to depend, are not averred, the party does not bring himself within the jurisdiction, and he cannot resort to the statute for aid, because his record does not contain the case provided for by the statute.

The maxim est boni judicis ampliare jurisdictionem, does not apply to courts of a limited jurisdiction, much less to cases of which the jurisdiction is wholly dependent on statutory provision. It would be a malus judex who would thus apply it, as it would confound a distinction, without which there can be no limits to the power of courts. It cannot be necessary to advert to the uncertainty and inconvenience that would follow the practice contended for by the defend

ant.

We know that transcripts are taken for various purposes. Plaintiffs have always a right to require them, as well before as after execution, consequently, if the clerk may issue a scire facias on a transcript that does not contain these averments, a plaintiff may in every case proceed against real estate, although there may be goods and chattels sufficient to satisfy the judgment.

In relation to the second assignment, it has been intimated by counsel, that the record does not fairly represent the proceedings of the court; but we cannot listen to such a suggestion. We must take the record as we find it; and as it is, it shows a proceeding not warranted by law, or the practice of this state. When a demurrer has been regularly filed, a joinder becomes necessary, in order that an issue may be made to the court. It is irregular to dispose of the demurrer on motion in this summary way. Judgment reversed.

WILSON v. HOLEMAN.

JUDGES BURNET AND SHERMAN:

1826.

When the bond for an appeal from the common pleas is given after verdict and before judgment, the appeal will be quashed.

The cause had been brought up by appeal from the Common Pleas. It appeared from the record, that a verdict had been rendered for the defendant, at the May term, 1821, and notice of appeal then entered. On the 4th of June the appellant gave bond with a condition, that he would prosecute his appeal to effect, and not depart the court without leave, and would pay the amount of cost and condemnation money, if a decree, or judgment should be rendered against him. Final judgment was rendered on the verdict in the Common Pleas, at the July term following.

The appellee moved to dismiss the appeal, on the ground that it had not been taken in conformity with the statute.

By the COURT.

The right of appeal from the Common Pleas, to this court, for the purpose of having another trial on the merits, is given by statute, and extends only to cases in which judgments, or decrees have been rendered, and the plain construction of the staute requires, that the judgments or decree must be rendered, before any steps are taken to perfect the appeal. The appeal is allowed from judg

ments and decrees.

The notice, which is the first step to be taken, must be entered on the records of the court at the term in which judgment is rendered, and bond with security must be given within thirty days after the close of that term. In this case it appears that notice was entered and the bond executed before the term in which judgment was rendered. The bond is also defective.

It does not describe, or set out the suit with sufficient precision, to determine with certainty to what case it was intended to apply. As this suit therefore is not within the original jurisdiction of this court, and the steps required in order to give us appellate jurisdiction have not been taken, the appeal must be dismissed.

A motion was then made to enter judgment against the appellant for costs. The motion was overruled on the ground that the cause was not within the jurisdiction of the court, and consequently that no judgment could be rendered for or against either party.

Appeal dismissed.

MURPHY v. LUCAS.

JUDGES HITCHCOCK AND BURNET.

1826.

In forcible entry and detainer a bill of exceptions cannot be tested by a bystander.
Forcible entry may be tried in any township within the county where the lands lie.

The complaint in forcible entry and detainer, must describe the premises in such a manner as will afford a guide to the sheriff in executing the writ of restitution.

It was a writ of error to reverse the judgment of the court of Common Pleas, rendered in a case of forcible entry and detainer, certified to that court by the justices, before whom it was tried.

Creighton and Bond, for plaintiff in error. Clough and Douglas for defendant.

The errors assigned were,

1st. The proceedings show no definite description of land for which a restitution could issue.

2d. The process is directed to the Sheriff, but returned by the Coroner. 3d. The proceedings were not in the township in which the land is situate. 4th. The verdict is not in the form prescribed in the statute.

5th. The matters set out in a bill of exceptions taken to certain proceedings before the justice and certified by a bystander.

By the COURT.

The second, third and fourth errors, are not sufficient to reverse the judgment. It appears that the sheriff to whom the process was directed, died between the test and return. The coroner was therefore the proper officer to execute and return it. The statute does not require the proceedings to be had in any particular township, but gives jurisdiction to any two justices of the county in which the land is situate, leaving them at liberty to try the cause in any township within the county, as may be most convenient.

The verdict is in these words: "We the jury find the defendant guilty in said suit of forcible entry and detainer."

The statute directs, that if the jury find the complaint true, "they shall return a general verdict of guilty, or they shall return a special verdict of such parts as they do find true."

Perhaps the order in which the jury have placed the words composing their verdict, might be improved, but we think it conforms substantially to the requirements of the statute. It may be taken as a general verdict of guilty, with an unnecessary description of the case in which it is found, or by transposing a single word, the jury find the defendant in said suit guilty of forcibly entry and detainer, or by rejecting the words "in said suit" as surplussage, the same result will be produced.

The plaintiff cannot avail himself of the 5th error, because there is no law in this state, authorizing bystanders to allow or certify bills of exceptions, and if there had been, an allowance by a single bystander, interested in the cause, as was the fact in this case, would not have been sufficient.

But the first error seems to be a fatal one.

The complaint before the justice, was, "for forcibly entering upon, and detaining possession of the lower part of a tract of land situate on the bank of the Scioto River, opposite Piketon, the same being patented to the complainant by a patent from the President of the United States, bearing date the 2d of March, 1821."

It must give a venue, and

The complaint is in nature of a declaration. must describe the premises with such certainty as will apprise the defendant of what is demanded of him, and as will afford a guide to the Sheriff in executing the writ of restitution. In this case it does not appear in what township, or county the land is situate, nor how much of the entire tract is demanded.

The judgment and writ of restitution must pursue the complaint, and consequently, the Sheriff must be directed to restore to the complainant, the lower part of a tract of land, on the bank of the Scioto river opposite Piketon.This description forms no guide to the officer, it does not direct him how to find the entire tract, nor what quantity of it he is to restore, after it is found. The lower part of a tract, without metes and bounds, or quantity of acres, is too vague and indefinite. It neither contains certainty, nor the means of arriving at certainty.

Judgment reversed.