HplIE plaintiff bad obtained judgment against three executors, — upon the plea. «1 jjlene administravlt., lov.nd. against them ; a ji.Ja. had issued and nulla bona returned ; and now Mr. iVrv-uoood moved that a special fi.fa. should issue, commanding- the sheriff to levy the goods oí the defendants if no goods oí the testator to be found.
Haywood e contra.
& fi.fa. as asked for has been issued ira our courts, and in some caaes it is not attended with any inconvenience. Bui in the present case one oí the executors never bad in his actual possession any of the goods of the deceased, but the other two only : they therefore ought to be only answerable ior the devastavit: 2 B.u Ab. 305, Godol. 3 34. Off Exe. 100. Again; a fi.fa. must be grounded o a a judgment which warrants it; and the judgment for the plaintiff is, that the debt be levied de. bonis teslatcris: there must be a new judgment to be levied ds bonis propriis before an execution can so issue. Again; there should be a sci. fa. to shew cause why it should not be levied d1 honis propriis s for suppose after the verdict and judgment in the first action, the goods which were assets, are destroyed without default in the executor,- as by lightning, freshes, death or the like, be ought not to be auswerable for them; anti yet he must be liab'e unless he has an opportunity to shew that to the sci. fa. Petitter’s case is that which is relied on for the support of the motion, but there the fi.fa. is grounded on the return of the sheriff, that the executor hath wasted ; and he cannot le vy de bonis propriis unless the defendant hath wasted, and it so appears to him : if he levies on any who hath not wasted, he is subject to an action. A sci. fa. for the above reason is necessary before the sheriff shall be commanded absolutely to levy iff bonis propriis. And of late years the practice hath been in the English courts to bring the defendants into court by sci. fa. or action of debt grounded on a devastavit, so as to give, him an opportunity to answer, and to have a judgment against him in proprio jure before an execution issues to levy de bonis propriis. L. R. 5 39. Wil. Rep. 259. 1 Atk. 192.
Taylor, Judge
The practice in this country hath been to Esue a special fi. fa. for the sheriff to levy de bonis propriis, if it can appear to him that the defendant hath wasted: but I will take time to consider. Afterwards at another day, the parties informed the court that a compromise had been made with one of the executors, who no longer insisted upon the sci. fa.
Per curiam — Let the special fi.fa. issue as prayed tor.