66 N.C. 444 | N.C. | 1872
The plaintiffs had theretofore received a judgment against the defendants as executors, fixing them with assets and caused an execution debonis testatoris to issue, which had been returned nulla bona.
Thereupon this motion was made, which His Honor declined to grant, on the ground that the proper remedy was by a civil action.
The plaintiff from this ruling of His Honor appealed. The administrator withdrew his plea of "fully administered," and allowed judgment to be entered against him for the debt of his intestate. This judgment fixed him with assets, and an execution was issued and returnednulla bona, c. The plaintiff after giving notice to the administrator, to make a motion before His Honor for an execution de bonis propriis.
The motion was refused on the ground that a civil action was the proper remedy. In such cases the C. C. P. has provided no specific remedy, and we must consider the general scope and purpose of the Code on determining whether or not the ruling of His Honor was correct.
In examining this question we will first enquire briefly into the remedies at common law, against an executor or administrator, when he has made himself liable de bonis propriis. *446
A personal representation is required to act honestly and faithfully in the discharge of his trust, and he is liable only so far as he has assets, or might have had them by reasonable diligence, unless he subject himself to liability by his own act. When a personal representative is sued he must protect himself by proper pleading. If he plead any false plea in bar of the action, such as ne unquis executor, or a release to himself, and rests his defence only on such plea, and the issue be decided against him, the judgment in the first instance must be de bonis testatoris si non de bonispropriis, for it is falsity which falls within his own knowledge. Where he puts in pleas which tend to defeat the plaintiff's cause of action, and which may not be false within his own knowledge, as non assumpsit, or a release to the intestate; and at the same time pleads plene administravit, the plaintiff may take a judgment quando as to the latter plea, and join issue oh the former, and if he obtain a verdict he can have an execution for costs against the defendant de bonis propriis.
If, however, in either of the above cases the plea of pleneadministravit is put in, and issue is joined as to all the pleas, and the latter plea is found in his favor, he is entitled to a general judgment with costs, although the other issues are found against him. Willims on Ex'r. 1389. When a personal representative was fixed with assets by a judgment and the assets could not be obtained by an ordinary execution, several modes were formerly in use in England to subject him personally. In the Court of Kings Bench in former times, the usual practice upon the return of nulla bona testatoris was to sue out a special writ of fierifacias against the assets with a clause suggesting a devastavit and if no goods of the testator are found then it could be levied de bonis propris.
The practice in the Common Pleas was to issue a special fieri facias, suggesting a devastavit, with a clause, directing the sheriff to enquire by a jury as to what had become of the assets, and if they found a devastavit by the executor, then a *447 scire facias was issued to the executor, to show cause why a fieri faciasde bonis propriis, should be awarded against him.
In process of time, the practice of the two courts was made uniform by joining the special fiere facias injury with the scire fiacias, into one writ, called the scire fieri inquiry, from the first words of the two writs which were thus incorporated.
This writ fell into disuse in England, as the plaintiff was not entitled to costs, unless the defendant appeared and plead to the writ. The usual proceeding in such cases is an action of debt on the judgment, suggesting a devastavit. 1 Saund. R., 219, notes.
This last named remedy was formerly used in this State, but the scirefieri enquiry was never adopted. In former times in some parts of the State, the special fieri facias once used in the King's Bench, was resorted to, but in the case of Hunter v. Hunter, N.C. T. Reports, 122, the more simple and expeditious process of scire facias was prescribed as the proper remedy in such cases.
A scire facias on a judgment, is not a new action, but is only issued as a continuation of the former suit. Binford v. Alston, 4 Dev., 351, 2 Tidd, 983.
When the object is to obtain an execution on a judgment it it is properly called a writ of execution. 2 Tidd, title sci fa.
In some cases a scire facias is an execution as the defendant may plead to it, but he cannot deny the merits of the judgment upon which it is founded. Thus on a sci. fa. upon a judgment against an administrator, fixing him with assets he would not be allowed to plead pleneadministravit, or any other plea of the same nature, which puts his defence upon a want of assets. 1 Saund. R., 219.
The scire facias when used under the old system for the purpose of obtaining an execution de bonis propriis, on a judgment against an administrator, although it was styled a judicial writ, was nothing more than a notice to show cause why an execution should not issue. *448
The C. C. P., merely abolished the form, and did not effect the substance of the remedy. The plaintiff in this case gave notice to the defendants that he would make a motion in the cause, in term time for an execution de bonis propriis, etc. The Judge under the liberal provision of the C. C. P., might have allowed the defendant to make any defence which he could have availed himself of under the old scire facias proceeding. The plaintiff cannot obtain a direct and speedy remedy on his judgment in any other way than the one which he has adopted. A civil action cannot be brought on a judgment without leave of the Court, for good cause shown upon notice to the adverse party. C. C. P., sec. 14.
This leave could not be allowed as this Court has often decided that an action cannot be entertained which seeks no other relief than that which can be had in a case then pending. Mann v. Blount,
The Code has abolished the writ of scire facias, C. C. P., sec. 362, but this section does not require a civil action to be brought to obtain a remedy in cases like the one we are now considering.
There were two forms and purposes of writs of scire facias at common law,.
1. A writ which was used to remedy defects, or as a continuation of some former suit.
2. A writ in the nature of an original writ, used to commence some proceeding.
The Code does not apply to the former, but only to the latter kind. This distinction is shown in many provisions of the Code.
Under the old system writs of sci fa of the first class were used to prevent abatement of suits, and remedy defects arising by a change of parties, etc. Under the Code the objects are accomplished by a motion in the case. C. C. P., 54.
After a lapse of three years from the entry of judgment an execution can be issued only on motion, with notice to the *449 adverse party. C. C. P., 256. Formerly a sci fa was used to obtain an execution on a dormant judgment. In the case of the death of a judgment debtor, his personal representative must be summoned to show cause why the judgment shall not be enforced. C. C. P., 319.
Other instances of a similar character might be given to show that it was not the purpose of the Code to require a civil action to be brought to obtain relief in cases where it was formerly furnished by a writ of sci fa of the first class above mentioned.
We will now refer to some of the writs of the second class. At common law a writ of sciri facias to repeal letters patent is an original writ issuing out of Chancery. Under the Code a civil action must now be brought for that purpose. Sec. 367.
A writ of sci fa to subject bail was an original proceeding, and in such a case the Code requires a civil action to brought. Sec. 160.
A sci fa to enforce an amercement against a Sheriff was in nature of an original writ, and now a civil action is required.
Jones v. Gupton,
If these objects could only be obtained by civil actions, the costs of legal proceedings would become burdensome and the consequent delay would almost amount to a denial of justice.
There was error in the ruling of His Honor. Let this be certified to the end that proper proceedings may be had in the cause.
PER CURIAM. Error. *450
