Page:Hempstead's Reports.pdf/354

Rh   too obvious to need further criticism, and is not sustained by authority.

The law, in allowing judgments and executions against the estates of deceased persons, established no new and unheard of doctrine; but rather carried out an ancient rule; because the common law of England enforced claims against estates, by means of judgments and executions de bonis testatoris. Real estate was not subject to sale under execution in any case, against the living or the dead, because it was held to be against the policy of their peculiar system of government. Nor were land there, as here, assets in the hands of the administrator for the payment of debts. Slaves were neither subject to execution, nor assets in the hands of an administrator, because slavery did not and does not exist in England. But goods and chattels which were assets, were subject to execution, seizure, and sale for the debts of the intestate as long as they remained in the hands of the administrator in specie unadministered; and they were so considered until actually sold and applied to the payment of debts. And this, notwithstanding the general subject of administration, was under the authority and jurisdiction of the ecclesiastical courts; and notwithstanding, too, a scale of priority was established and fixed by law among creditors. Toller's Ex'rs, 258. The case of Mara v. Quin, 6 Term Rep. 5, shows that a debt may be levied of the assets of the deceased in the hands of the executor to be administered. 2 Saund. 219 (a), note 2. And several cases in State courts are to the same effect. Mitchell v. Lunt, 4 Mass. 654; McCormick v. Meason, 1 Serg. & R. 92; Prescott v. Tarbell, 1 Mass. 204; Weeks v. Gibbs, 9 Mass. 73; Clark v. May, 11 Mass. 233.

It is only necessary to ascertain what are assets, because if by the common law goods and chattels might be taken on execution on account of their being assets and unadministered, so here lands and slaves may be taken and sold, if assets by our laws, which they certainly are.

Now the law of Arkansas destines the property of the deceased, real, personal, and mixed, to the payment of debts. Real estate, slaves, personal chattels, rights and credits, and property of every nature and description, are declared to be