Parker v. Stephens, 2 N.C. 250, 1 Hayw. 250 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 250, 1 Hayw. 250

Parker v. Stephens.

When an executor omits to plead “no assets,” it is an admission of asse's which he can never afterwards controvert: and in such case, the proper judgment is, that the principal sum recovered In' levied de bonis testatoris in the hands of the ex- cut or, and the costs de bonis propriis v and upon the return of the Sheriff that there are no goods of the deceased in the hands of the executor, then a sci. fa. issues to the executor to shew cause why the execution for the principal should not be levied de bonis propriis.

The Plaintiff had brought an action against the. Defen-darit, as administrator of Charles Stephens, decease,d : to which the Defendant appeared and pleaded the general issue, act of limitations, a former recovery, arid set off. All which pleas were found against him, and damages assessed to ninety pounds four shillings, and costs to sixpence : and there was a judgment against him, to he levied de bonis testatoris ; aji. fa. issued, and the Sheriff returned thereupon, that (here was not any property of the intestates to be found — and upon this return, the Plaintiff took out a sci. fa. for the Defendant, to show cause why the Plaintiff should not have judgment to he levied de bonis propriis. This cause now came on to be argued : it was argued on the part, of the Defendant, that this sci. fa. is ii regular and improper, for that the first judgment should have been de bonis testatoris si, ei si non de bonis propriis, and that not being so, it was erroneous 5 and that the court would not now help the Plaintiff in this hard case, where the attempt is to subject the Defendant’s goods merely for his mispleading, or for his ignorance of the rules of pleading, when perhaps the fact may be, that he hath riot any of the goods of the intestate in his possession nor ever had.

Per curiam:

We must not depart from the settled rules of law to avoid an inconvenience in a particular case.— It is better for the individual to suffer that inconvenience, than that the public should suffer a genera) mischief, by having the rules of law rendered arbitrary and uncertain. The rule of law is well known, that an omission on the part of the executor or administrator, to plead want of assets, is a confession of them, so that he can never af-terwards be permitted to say he had no assets to satisfy that demand. The proper judgment in such case, is, to he levied debonis testatoris; for the law will not presume there are no assets, when admitted by the executpr that there are, until it shall appear upon the return of the of-fleer. Godd. 199, sec. 7 and 8. The costs of the first .judgment are to be levied de bonis propriis, because, having assets of the deceased in his hands, he ought therewith to have satisfied the debt, and not have incurred the costs of a suit; which as they must necessarily be paid by some one, now the suit has been commenced, are justly charged upon him who hath occasioned them, and noton the estate of the inte-tate : arid therefore in such case the true method of entering the judgment is this, the principal to he levied de bonis testatoris, and the costs amounting to so much, to be. le\ ied de bonis propriis. And, the judgment to have execution de bonis propriis foe the principal, is always a subsequent judgmen', founded un«n the sci. fa. This judgment was therefore..well «-mered, and this sci. fa. well brought upon tiie return the Sheriff hath made, and the Plaintiff must have judgment at cording to the sci. fa. — And he had judgment accordingly. Vide Office Exec. 165 to 172.

Note. — In several cases like the present, after the return of a nulla bona by the Sheriff, the court permitted a special fi. fa to issue (Hogg's Ex’rs. v. White’s Adm'rs. post 298. Burnside v Greenside, 2 Hay. 112. Alston v. Harris’s Ex’rs. Ibid. 125.) but the case of Hunter v. Hunter’s Adm’rs. N. C Term Rep. 122, decides t! at the special f. fa. is improper, and that a sci. fa. or debt (or a devastavit is the only proper course. See 1 Saund. 219, note 8. Toller’s Law of Ex’rs. 469.