Opinion
(December Term, 1805.)
1. If, upon a plea of nul tiel record, the record produced shows a verdict, but no judgment regularly entered thereon, the court will presume, according to the loose practice in this State, that there was a judgment entered pursuant to the verdict, and pronounce that there is such a record.
2. After a finding or confession of assets, and a judgment to be levied de bonis testatoris, and a return of nulla bona, a sci. fa. to the executor or administrator to subject him de bonis propriis is the proper course.
3. If an administrator defendant plead judgment and no assets ultra, replication thereto may be either nul tiel record, or assets ultra, or per fraudom, or any other fact properly triable by a jury.
THIS was a verdict against the administrator upon the plea of fully administered. Judgments, etc. Execution issued, and was returned nulla bona. This sci. fa. issued to show cause why the plaintiff should not have judgment to be levied de bonis propriis. The defendant pleaded nul tiel record, no devastavit returned or found. Judgments. Replication to the plea of nul tiel record and demurrer to the other pleas. The record produced showed the verdict; no judgment had been regularly entered. The sci. fa., after stating the verdict, went on and stated that judgment was rendered accordingly.
We must presume, according to the loose practice of this State, that there was a judgment entered pursuant to the verdict, and therefore we must say there is such a record. As to the demurrer for that no devastavit is returned or found to be sure, by the English practice, no sci. fa. lies against the executor, to subject him de bonis propriis, till a devastavit is found upon a scire fieri inquiry, and returned. An Action of debt, however, will lie upon suggestion of a devastavit, and the practice in this State has been to issue a sci. fa. upon such suggestion. And as every defense can be made to the sci. fa. which could be made to the action, there can be no good reason for adjudging the sci. fa. improper. If the sci. fa. here be considered in lieu of the scire fieri inquiry in England, it possess advantages far above the English mode; for it is to be executed in court, and under the direction of the court; whereas the other is in the county before a jury. With respect to the demurrer to the plea of judgments and no assets ultra, that was pleaded in the original suit; but defendant's counsel say a replication thereto, denying the judgments, is nul tiel record; and the record shows that the jury said there were no such judgments. Therefore, the plea has not been tried; and, if so, no judgment can be presumed, for the court ought not to enter judgment when any one plea remains untried. The answer is, the replication may be either nul tiel record, or assets ultra, or per fraudom, or other matter of (378) fact; and such replication was properly triable by jury; and an irregularity committed by the clerk in entering the verdict will not raise a presumption that the judgment was not given upon the verdict. If there was such a judgment, that estops the defendant from using any plea which he did or might have pleaded prior to that judgment. The demurrer, therefore, must be allowed.
NOTE. — Upon the first point, see Gibson v. Partee, 19 N.C. 530. Upon the second point, see the note to Burnside v. Green, ante, 112. And on the last point see Bell v. Davison, 13 N.C. 397.
Cited: King v. Howard, 15 N.C. 583, 584.