
    Goosely v. Holmes, Adm’r of Elliott.
    [Monday, November 7th, 1803.]
    Verdict — Certainty'-—Venire Facias De Novo. — A venire facias de novo awarded; the verdict being; too uncertain for the Court to pronounce judgment thereon.
    Goosely sued a scire facias against Holmes, as administrator of Elliott, upon a judgment obtained against Elliott, in his life-time; the defendant pleaded, that he had fully administered by discharging certain judgments (setting them forth,) obtained against Elliott himself, and by payment of public taxes. Replication, that the defendant *had not fully administered; nor paid the judgment stated in his plea; and that he had goods and chattels at the time of„the institution of the suit, sufficient to pay the plaintiff’s debt;' which he prayed might be enquired of by the country, &c. But, no similiter is entered. The jury found a verdict in these words; “We of the jury find for the plaintiff 1241. 14s. 634”’ But the entry thereof in the order book is thus: “and thereupon came a jury, &c. who upon their oaths do say, that the defendant hath not fully administered all and singular the goods, chattels and credits, which were of the said William Elliott at the time of his death, and that assets to the amount of 1241. 14s. 634, were in the defendant’s hands, at the time of issuing the writ of scire facias aforesaid, as the plaintiff by replying hath alleged.” The Hustings Court gave judgment for the plaintiff; to which judgment the District Court granted a writ of supersedeas, and reversed it, with an order for a new .trial in the Hustings Court. At a subsequent trial in the latter Court, the jury found a verdict in these words: “We of the jury find for the plaintiff according to the former judgment, and that the defendant had at the time of the service of the scire facias in this case, and prior to the first day of August, 1793, assets in his hands to the value of 1241. 14s. 634, and we also find for the plaintiff 701. 4s. 1J4, with interest from the 24th of September, 1791, subject to the opinion of the Court upon this point, whether an administrator can pay off a debt due by judgment against his intestate, on which said judgment an execution had issued, after a scire facias made known to him to revive a judgment obtained against his intestate in his life.” The Hustings Court now gave judgment for the plaintiff, for the 701. 4s. 1J4: To which last mentioned judgment, another writ of supersedeas was awarded by the District Court: Where the same was reversed; and thereupon, Goosely appealed to this Court.
    *Wickham, for the appellant.
    The plea to the scire facias is fully administered, except certain assets; and the singlé point was, whether he had assets or not? To which the verdict of the jury is clearly responsive; because they find a particular sum, which must relate to the assets, as it would have been unnecessary to have specified the sum, upon any other ground. The verdict ought to be referred to the subject matter in dispute; which, in this case, was only as to the amount of the unadministered assets; for, there was no plea of payment, which might have varied the case. • The verdict submits a single point only to the Court; but the jury meant to decide all other points fully, and therefore the quantum of assets, necessarily.
    The plaintiff by suing out a scire facias obtained a preference. 11 Vin. Abr. 301: For, the word process, there, must refer to the scire facias; because, there could have been no other process, until the judgment was revived, as an execution could not have been taken out, before. The same doctrine is laid down in 2 Fonbl. Treat. Eq. 405, and in Rich, on Wills, 380: Which is analogous to the legal doctrines in other cases; for, the law always gives a preference to superior diligence. [Waters v. Ogden,] 2 Dougl. 452. The District Court erred, therefore; and their judgment ought to be reversed.
    Nicholas, contra.
    The scire facias did not give a preference; for, the executor might pay any other judgment, notwithstanding. 3 Bac. Abr. 80, [Gwil. ed.;] Ordwey v. Godfrey, Cro. Eliz. 575; Allen, 48; 4 Hod. 296. The 11 Vin. 301, cited on the other side, is actually in our favor; because, it proves that the executor may pay either judgment at any time before execution; which is supported by Wentworth’s Off. of Ex. 8th edit. 197; where it is said, that if scire facias’s are issued on both, he may confess judgment to one, and prefer it to the other. The passage cited from Fonbl. Treat. Eq. 405, is not against us; for, the author means, that he who first sues execution, *shall obtain a preference; and the reason is, that the execution binds the property: All which is proved by the case referred to, by him, [Smallcomb v. Cross,] in 1 Ld. Raym. 251. Diligence is not the rule, as the counsel on the other side insists, but dignity; for, where the dignity is equal, the executor may prefer which he pleases. 3 Bac. Abr. 81, 82. The case of bonds does not apply; for, that turns upon the notice, which can only be given by suit: whereas, in the case of judgments, he has notice without. The verdict supposes an execution ; which might have been served after the death of the testator; and, therefore, bound the property. 2 Bac. Abr. 716, [Gwil. ed. ;] Comberb. 33; [Anony. ;] 2 Ventr. 218; [Pennoir v. Brace,] 1 Salk. 319; 1 Mod. 188; [Houghton v. Rushbv,] Skin. 257, 258; 12 Mod. 5; Gilb. Ex. 15; 10 Vin. Abr. 568. If it be doubtful when it issued, that will be a ground for a venire facias de novo. 1 Wash. 282. But the fair inference from the finding is, that it issued in the life-time of the testator.
    Wickham, in reply.
    There are two questions: 1. Whether an executor can pay after a scire facias issued? 2. Whether the mere emanation of the writ in the testator’s life-time gives a preference? As to the first: The case cited on the other side are like the case of bonds, where payment cannot be made to another bond, not in suit, after an action commenced. Of course, the rule will still hold, that the scire facias gives a preference, unless a scire facias had been issued on the other judgment, and judgment confessed thereto: as to which, the case in 11 Vin. 301, is conclusive. The execution, there spoken of, must mean an execution founded on a scire facias; for, no other could issue, after the death of the testator. Indeed, the scire facias itself is an execution; for, it is a writ to shew cause why execution should not issue; that is, it is suing for execution. Rich, on Wills, 380, is express to that effect, and so is Eonbl. 405. The passage from Wentworth does not oppose the doctrine, but is consistent with it.
    *The forms of pleading prove my position. The plea is, that at the time of instituting the suit, he had not assets ; and the verdict is, that he had them to a certain amount; which shews that a payment, afterwards, will not avail, because it is inconsistent with the plea itself. The decisions are all according to the doctrine contended for by me; and that is a sufficient argument, whether the rule is reasonable or not. If there be two bonds, and suit is brought on one, the executor cannot pay the other, without a suit and judgment. Notice is not the reason of this, but diligence, and the prior suit. The Court will never presume, that the defendant confesses judgment improper^'; and, therefore, if the judgment 'is in fact obtained, that is sufficient; but, it is otherwise, if no such judgment is rendered. This right of preference in the executor is subject to great abuse, and therefore not to be extended further than the law has already settled. As to the second question: The verdict is certain enough. It states, that an execution issued; and, the omission to say, whether it was delivered to the Sheriff, or not, does not prejudice the case; because the first fact of the emanation is certain, and there is no room to infer that it was delivered, as nothing was said about it; for, it was not necessary to negative it. Pocket executions are usual; and, therefore, if there was a delivery, it should have been shewn. The simple enquiry was, whether the defendant had assets when the scire facias issued? And, therefore, the subsequent payment was irrelevant. .The determinations, relative to the delivery of the execution binding the property, do not apply, as the verdict does not present the fact to the Court. The object of the lien is to prevent alienations, before the execution is levied; but, this only applies to tangible objects, and not to choses in action. Besides, it must be delivered to the Sheriff; for, a pocket execution has no effect. Of course, no lien attaches, until seizure of the property; but, when seized, then it relates to the teste, as to the executor; *and, as to the others, to the time of delivery. If, however, the writ runs out of date, before the property is taken, the lien expires; for, it is the seizure alone that can preserve it. The plaintiff only claims the smaller sum found; and, there-' fore, if it is uncertain which of the two-was meant as the quantity of assets in the executor’s hands, there is no ground for a venire facias de novo; because, it was one or the other of them; and, when the plaintiff asks the lesser sum only, no possible injury can be produced: which renders the verdict certain enough.
    Cur. adv. vult.
    
      
       See Rogers v. Chandler, 3 Munf. 65; Booth v. Armstrong, 2 Wash. 301; Nemo v. Com., 2 Gratt. 558; Hoback v. Com., 28 Gratt. 922; Hairston v. Com., 97 Va. 754, 32 S. E. Rep. 797.
    
   ROANE, Judge.

The first judgment rendered in the Court of Hustings in tHis cause, was, that the plaintiff recover 1241. 14s. 634.

As this judgment is reversed, and I think rightly, by the District Court, it is no further material to be considered, at present, than as it is referred to in the special verdict rendered on the second trial.

That verdict finds for the plaintiff, “according to the former judgment,” i. e. as it might be supposed, that the plaintiff should recover the sum awarded him by that judgment, viz: 1241. 14s. 6d, ; but, the jury go on to find for the plaintiff 701. 4s. 134 with interest from the 24th of Septem-' ber, 1791, subject to the opinion of the Court, upon the point, “whether an administrator can pay off a debt due by judgment against his intestate, on which said1 judgment and execution had issued- after a scire facias made known to him, to revive a judgment obtained against his ' intestate in his life?”

This latter sum is that, for which the Hustings Court entered judgment; and I understood Mr. Wickham, as according with the Court in interpreting the meaning of the jury to be, that this sum was that to be recovered by the plaintiff.' '

^'Notwithstanding this admission of the appellant’s counsel (if I understood-him correctly) of his understanding the finding to relate to the smaller sum, but which admission I presume he did not mean should bind his client, the latter part of the verdict is in hostility with the former, in respect to the sum to be recovered, and-the meaning of the jury, as to this essential fact, cannot be clearlj' ascertained.

My own construction of this verdict would rather have been, that the jury, by the first part of the verdict, found (by reference) the 1241. due to the plaintiff; that they then gave a reason for this finding, by stating that the administrator had assets at the time of issuing the scire facias to the amount of 1241. ; and, that they found a further sum of 701. 4s. 134. subject to the question submitted.

But, however, the true construction of the verdict may be, it is evident, that a considerable uncertainty exists in this respect, which could not be aided by any opinion the Court might form upon the point submitted. The Court could never render any judgment upon this verdict, without the danger of mistaking the meaning of the jury, as to the amount of the sum, by them, considered to be due.

This is a strong case, therefore, for a venire de facias novo; which ought to have been awarded by the District Court, instead of giving final judgment for the appellee.

FLEMING, Judge. The verdict is too uncertain to enable the Court to form a satisfactory opinion upon it: and, therefore, I think a venire facias de novo must be awarded.

CARRINGTON, Judge. The verdict doe's not even shew when the execution issued; and, in short, it is so uncertain, as to all the material points, that there is no way of doing, justice between the parties, but by awarding a venire facias de novo.

LYONS, Judge. Concurred.

Venire facias de novo, awarded.  