M'Millan against Red, 4 Watts & Serg. 237

The opinion of the Court was delivered by Rogers, J. — The 34th

section of the Act of the 24th of February 1834, enacts, that “ 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 debts, the widow and heirs, or devisees, and the guardians of such as are minors, shall be made parties.” Does this

section extend to a scire facias on a judgment rendered in the lifetime of the deceased, so as to require notice to the heirs, &c., or to original suits, such as actions on bonds, book accounts, and debts of a similar description ? The term “ all actions” may be made to include the former class, as a scire facias is in the nature of an original suit or action; but notwithstanding, I incline to the opinion that this was not intended by the legislature. The

section seems to have been drawn, with an eye to the case of The Executrix of Christman v. The Administrator of Fritz, (13 Serg. & Rawle 1), where it is held “ that in a suit against an executor, the heirs of the testator, to whom land has descended, may be permitted to appear and take defence, in the name of the executor.” The attention of the legislature being directed to the subject by that decision, it was thought right that the parties interested should have an opportunity to take defence in such cases, and hence it was directed that those entitled to the real estate to be charged, should be made parties to the suit. I am rather inclined to confine the

interpretation of the

section to this class, because, such has been the construction of the Act in perhaps a majority of the judicial districts, and to decide now that this construction was wrong, would unsettle many titles held on the faith of it. A different practice has prevailed in other parts of the State, but the construction now given can produce no injury there, as making them parties cannot affect the titles, utile per inutile non vitiatur. This is therefore the safest course, and if the legislature choose to extend it to judgments, it can be done, without any danger to existing titles.

Besides, the Act of the 4th of April 1798, 3d section, points out the mode of proceeding in a scire facias on a judgment against executors and administrators, and there is nothing in the,latter Act which satisfies me that it was intended to alter and supply that Act in this particular. I do not put the case on the 33d section, because that

section is drawn in reference to Leiper v. Levis, (15 Serg. & Rawle 108), and in affirmance of the principle there decided, and consequently has no bearing on this question. In Chambers v. Carson, (2 Whart. 365), it is ruled, that a scire facias on a mortgage is not within the section, and that it is not necessary to make the widow, heirs, or devisees, parties. It frequently happens, that from want of due precision in the language of Acts of the legislature, or from some intrinsic difficulty arising from the subject of the enactment, different

interpretations are given, not without plausible arguments, in the various judicial districts. And when this is the case, whatever may be our impressions, considering the point entirely new, we feel ourselves bound to avoid that

interpretation which tends to unsettle titles.