Page:Federal Reporter, 1st Series, Volume 4.djvu/615

8TSEBS V. DANIEL. 601 �one of the authors of the Code, and in delivering this opinion clearly points to the inevitable result that, as to judgments and executions, leaseholds are now real estate. But see Buhl V. Kenyan, 11 Mich. 249, where a contrary doctrine is asserted, under a similar statute, by a court entitled to the utmost respect. �In the view I have taken of this case it is unnecessary to examine the question so much argued, -whether the adjudica- tion of these questions in Dawson v. Daniel, supra, on the application for a vend, ex,, is res adjudicata of the questions now made by this bill. I think it was not such an adjudica- tion as precludes either Daniel or those claiming under him from resisting the title of the execution crediter in any appro- priate way. The only question therejwas whether a vend. ex. should issue, and that proceeding could not be converted into a trial upon affidavits of the right of property. It was a bare naotion, from which not even a writ of error could be sued. Boyle V. Zacharie, 6 Pet. 656, �Let decree be entered declaring that Dawson is entitled to the money, and, after paying the costs of the suits at law, in- cluding the marshal's commissions for sale, the balance may be paid to him. The costs of the original and supplemental bills having been already paid out of the funds, the costs inci- dent to the cross-bills, and ail costs since the agreed decree, will be paid by Freeman out of the funds in hîs banda as trustee. But ail the parties may bave a decree for their costs against Daniel. �Decree accordingly. ����