23 F. Cas. 823 | Cir. Ct. N.C. | 1805
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 bonispropriis, till a devastavit is found upon a scire fieri inquiry, and returned. An Action of debt, however, will lie upon suggestion of adevastavit, 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 thescire 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 eithernul 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,
Cited: King v. Howard,
