Ray v. . Patton

Smith, C. J., after stating the facts. There is no error in these several rulings of the court. The objections to the order of reference and to the report and its confirmation for any of the causes assigned, are without support from the record and are untenable. The reference was by consent, and the confirmation of the report delayed for six months after it was put in and no exceptions were taken. It is how *389 ever upon its face incomplete and fails to show the condition of the assets and the funds in'the hands of the defendant, or which ought to .be, either at the date of the commencement of the suit or that to which the estimates are made, and a re-committal or new reference to ascertain this fact and to extend the inquiry over the period that has elapsed since the report, was a prerequisite to any determination of the state of the assets and of their administration up to the time of trial. In the former practice all the issues made in the pleadings are determined and disposed of by a single verdict. In the present case the court submitted to the jury the contested indebtedness alone, and this point being settled, the proper course was to direct an inquiry as to the assets, by a second reference, or to be made upon an issue to the jury, so that the final judgment would be, as formerly, conclusive as to the assets also. This is in accordance with the suggestion of the late Chief Justice in Heilig v. Foard, 64 N. C., 710, in assimilating the old to the necessities of the new system of judicial procedure under the requirements of the acts of 1868-’69, ch. 113, and of 1869-70, ch. 58. The plaintiff can have no cause of complaint that the judgment for the debt found by the jury was suspended, until the defendant’s possession of assets, and his liability therefor was also determined. In Emmett v. Steadman, 2 Haywood 15 (166), the defendant, pleaded the general issue, statute of limitations and fully administered, and the verdict negatived the two first de-fences and did not dispose of the last. The court declared the finding imperfect, and upon a scire facias to show cause why execution de bonis propriis should not issue, allowed the defendant to renew his undisposed of plea in the preceding suit, declaring that the judgment was erroneous, but being beyond the power of correction, “ the defendants ex necessitate must now be allowed to plead the same matter to *390 this sci.fa. to discharge their own goods, though they would not be entitled to such a plea now, had they not pleaded it to the first action,” and that, “ it must relate to the teste of the first process by which they were brought into court.” The course thus pointed out must be pursued in the present case, by causing an inquiry into the assets, so as to charge the defendant if he shall appear to be liable, as under the former practice. The motion for a personal judgment concluding the defendant as to assets, or for an execution against his own property, was properly refused; for this defence is set up in the answer, was not submitted to the jury, and the burden of proof rests upon the plaintiff. It would be a manifest wrong to the defendant to charge him with assets when none have been shown, and no issue submitted to which evidence applicable thereto is pertinent. Even under the former practice, when a defendant is fixed with assets, execution de bonis propriis could only issue after a fruitless execution against the goods and chattels of the' testator or intestate in the hands of the executor or administrator, and upon notice. Hunter v. Hunter, Term Rep., 122. And it cannot be error to refuse such process upon this qualified judgment. It must therefore be declared that there is no error, and this will be certified to the end that further proceedings in the cause may be had, if the plaintiff shall be so advised, to ascertain the assets of the testator, if any, in the defendant’s hands applicable to the plaintiff’s debt. No error. Affirmed.