Teasdale v. . Branton

23 F. Cas. 823, 3 N.C. 377, 2 Hayw. 377

• Court: U.S. Circuit Court for the District of North Carolina
• Decided: December 5, 1805
• Status: Published

Opinion

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 scire facias lies against the executor to subject him de bonis propriis, till a devas-tavit 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 scire facias upon such suggestion. And as every defense can be made to the scire facias which could be made to the action, there can be no good reason for adjudging the scire facias improper. If the scire facias here be considered in lieu of scire fieri inquiry in England, it possesses advantages far above the English mode; for here 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 the defendant’s counsel say a replication thereto, denying the judgments, in 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 fraudem, or other matter of fact; and such replication was properly triable bv 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.