Teasdale v. Branton's Adm'rs

Decision Date31 December 1805
Citation3 N.C. 377
PartiesTEASDALE v. BRANTON'S ADM'RS.
CourtNorth Carolina Supreme Court

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 to the proper course.

3. If an administrator defendant plead judgment and no assets ultra, replication thereto may be either mil 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, &c. 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 shewed the verdict, no judgment had been regularly entered. The sci. fa. after stating the verdict, went on and stated that judgment was rendered accordingly.

Per Curiam. 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 enquiry, 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 defence

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 enquiry in England, it possesses 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...

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