People ex rel. Fogalsonger v. Judges of the Court of Common Pleas

Curia, per Savage, Ch. J. In considering this question, it is proper to look into the form of the judgment against an executor. This should be according to his liability. So far as this arises from pleading, I take the rule to be as follows : If he plead ne unques executor, or a release to himself, and the issue be found against him, the judgment is, that execution issue in the first instance, de bonis testatoris si, et si non, de bonis propriis, for both debt and costs; and the reason is that he pleaded a plea which he knew to be false; and thus, unnecessarily delayed the plaintiff. The rule laid down in Lansing v. Lansing, (18 John. 503,) is right as to that case; but it is too broad, and should be accompanied with this qualification, that if the executor suffer judgment by default, or give a cognovit actionem, or plead any other plea but the two above named, and the issue be found against him, the judgment is de bonis testatoris si, for the whole debt or damages and costs, et si non, then, de bonis propriis for the costs, (Mounson v. Bourn, Cro. Car. 518. 6 Mass. Rep. 393, contra.) If the executor plead plene administravit, either general or special, and nulla bona or nulla bona ultra, and the plaintiff be satisfied of the truth of the plea, or, on issue joined, it be found for the defendant, then the judgment is for assets quando acciderint. (1 Saund. 336, n. (10.) Bull v. Wheeler, Cro. Jac. 647. Bridgman v. Light-foot, id. 671.) As to the regularity of the second execution issued in the Court below, the ancient practice of the King’s Bench and common pleas differed. In the former, upon nulla bona and a devastavit, returned by the sheriff, an execution issued immediately de bonis propriis, (Tidd, 933, 1019. Dy. 210, n.) The better practice was to issue a scire facias, and obtain an award of execution de bonis propriis. The most usual practice was, not to have a devastavit returned, but nulla bona only, and then to sue a special fi. fa. quod de bonis testatoris, &c, at si constare polsril quod devastavit, tunc de bonis propriis. In the [448] common pleas, the practice was to suggest a devastavit ih. the fi.fa. de bonis testatoris ; and direct the sheriff to in-quire by a jury, whether a devastavit had been committed; and if "it was found by the inquisition, then a scire facias issued ; and unless a good defence was made, an execution de bonis propriis was awarded. In Pettifer’s case, (5 Rep. 32,) the judgment of the Common Pleas was reversed by the King’s Bench, upon the ground, that the sheriff was not responsible for a return of a devastavit upon an inquisition, whereas he would be, upon a return on his" own responsibility. Afterwards, in Mounson v. Bourn, (Cro. Car. 527,) the practice of the Common Pleas was confirmed, and finally it'beeame the practice of both Courts, on a "return of nulla bona without a devastavit, to issue a scire fieri inquiry, upon which, if an inquisition was found agaihst the executor, then he was warned to appear ; upon the return, he might traverse the inquisition, and if found against him, an execution de bonis propriis issued. An action of debt suggesting a devastavit is much more common in both Courts. In either mode of proceeding, the executor is entitled to the same defence.; but in neither can '.he'avoid the consequences of pleading a false plea, confessing judgment, or suffering it to go by default. Either is an admission of assets, with this exception, that when plene' administravit is pleaded, and found against the executor, he is liable to the extent only of assets found to be in his hands unadministered. (1 Saund. 219, a. 1 John. Cas. 276. 3 T. R. 685.) It is an established principle, that if a party omit on the first opportunity, to plead matter in bar, he shall not be permitted to do so in‘a subsequent proceeding founded on the original action. (2 Str. 732. 3 T. R. 689. 1 John. Cas. 278.) Ld. Kenyon, in Ewing v. Peters, (3 T. R. 687-8,) thought the law hard, which made a previous judgment conclusive upon an executor, and pointed out a discrepancy between the law and the judgment, which is de bonis testatoris, while by this very -judgment the executor, is absolutely con-eluded; and by another proceeding, either in scire facias or debt, he shall" be charged personally. It was observed by Buller, J. that though the executor confess assets, yet [449] the judgment should" be de bonis testatoris; for though the judgment be evidence of assets, yet there is no reason to levy on the executor’s goods unless he hath wasted; “ and that being matter of fact, it must appear upon record, and judgment must be given thereupon, before his own goods can be affected.” Although, therefore, the sheriff may return a devastavit, yet the return ought not to supply the place of an'adjudication of the Court, and hence the necessity of a scire facias or a scire fieri inquiry, or an action of debt I confess, to my mind, this distinction appears more like a matter of technical formality, than of substance. In the present case, the defendant, by confessing a judgment admitted assets. By not producing those assets to the sheriff upon thefi. fa. de bonis testatoris, he has committed a devastavit, and justified the sheriff in his return. What defence can he make either to an inquisition or an action ? Certainly none. It is unreasonable, that the plaintiff should be driven to his scire fieri inquiry, upon which he gets no costs, unless the defendants appear. It is unreasonable that he should be put to an action to obtain what cannot possibly be denied him.. This has always been treated by the Courts as a matter of practice, under their control, in relation to which, they may establish their own rules; and it is undoubtedly so. That an execution de bonis propriis should go of course, at least upon this return of the sheriff, results from principles the most plainly established. Such a course unites convenience, expedition and the most perfect safety to the rights of parties, with the least expense. I feel myself impelled to yield to these considerations, and am accordingly of opinion, that the second execution was regular and that, consequently, judgment should be for the plaintiffs upon this demurrer. Judgment for the plaintiffs.