
    [Chambersburg,
    October, 17,1823.]
    MOORE for the use of MOORE, against KERR and others, surviving executors of KERR, who was surviving executor of MOORE.
    IN ERROR.
    If judgment be entered against an executor de bonis, execution to be levied of the lands of the deceased for a certain sum, it is to be considered as a judgment de terris and is not evidence of a devastavit against the executor, on a return of nulla bona and devastavit, where a levy has been made on lands, and part payment received.
    On a writ of error to the Court of Common Pleas of Franklin county, in which court judgment was rendered for the defendants in error, the defendants below, it appeared that the present was an action of debt on a former judgment, rendered in the same court, under the following circumstances: A summons was issued in debt by the plaintiff, Nancy Moore, for the use of John Moore, against Robert Kerr, surviving executor of James Moore, in which the defendant appeared by attorney, and judgment was entered de bonis, execution to be levied of the lands of the deceased, for the sum of £ 181 10s. On this judgment a ft. fa. was issued for the debt, interest and costs, by virtue of which lands were levied on and condemned, and a venditioni exponas was issued. A rule was after-wards entered, by consent, to show cause, in this and two other suits, why the executions should not be set aside, 1st, because interest was charged on a legacy previous to the demand thereof; 2d, because there was a deficiency of assets, and all the legacies ought to abate proportionably. Afterwards, on motion, it was referred to the prothonotary, to ascertain and report what sum of this,, and of the other suits brought under the will of James Moore, deceased, was chargeable on the lands in the possession of John and James Moore. A report was filed, finding the sum of £ 86 13s., due in this sdit when judgment was entered, and chargeable on the said lands. Satisfaction was afterwards entered by John Moore for the debt, chargeable on the lands of the deceased only. A fi. fa. was issued for the residue which was returned nulla bona, and afterwards an alias and pluries fi. f a. were issued; to the latter the sheriff returned a devastavit.
    
    The present suit was in debt for ¿S94 11s., upon the former judgment, in which Nancy Moore, for the use of John Moore, was plaintiff, against Robert Kerr, William Kerr, and John Elder, surviving executors of Robert Kerr, who was surviving executor of James Moore, deceased. The declaration stated the former judgment for £ 181 10s., “ to be levied of the proper goods and chattels which of the said James Moore at the time of his death, in the hands of the said Robert Kerr, as executor as aforesaid to be administered, if he had so much thereof in, his hands to be administered, as by the record and proceedings thereof,” in the said court might more fully appear, which judgment was in, full force, &c. ■ It then recited thefi.fa., and levy on land and inquisition "and venditioni, satisfaction as to £88 13s., the fi. fa., alias, and pluries, and returns of nulla bona, and suggested a devastavit by Robert Kerr. The defendants pleaded rtul tiel record, and nil debent, and the court gave judgment for the defendants, on the former plea, and filed these reasons for their opinion.
    1. The judgment must be presumed to have been taken by consent. For no declaration is filed, and there is no rule of court, or proceeding in law, by which such a judgment could have been adversely obtained.
    2. There is an appearance upon the record, and a special condition annexed to the judgment, from which we must infer, that it was a judgment by consent.
    '3. It is not .only á judgment by consent, but it is a judgment on special terms specified on the record.
    4. It can have no effect by implication beyond the terms specified by the parties.
    5. A judgment de bonis, by the practice in Pennsylvania, means a judgment de bonis testatoris, and is put in contradistinction to a judgment de bonis propiis.
    
    6. _ In this case, the judgment is to be levied on the lands of the testator to the whole amount, and when execution issued, by 
      
      consent, a rule was entered to ascertain the real amount, which the plaintiff was to recover out of defendant’s lands, and, consequently, the real amount of the plaintiff’s judgment, which was liquidated at about £ 86, which sum has been levied and satisfied.
    7. There is, therefore, no such judgment as the plaintiff has set out in his declaration, and any judgment he had has been satisfied of record.
    
      Dunlop and Crawford, for the plaintiff in error,
    now insisted that the prior judgment was a general judgment de bonis of the testator, and was properly declared upon as such. The entry that it was to be levied of the lands of the testator did' not alter its effect, if.the lands proved insufficient, and was, moreover a misprision of the prothonotary, as it did not appear to have been directed or authorised.
    
      Chambers and M'Cullough, contra,
    argued, that both parties having appeared, it was manifestly a judgment by consent, and was entered on terms, namely, to be levied of the lands of the tes'tator only, and not of his. goods. The judgment declared on, therefore, is not the same which appears in the record. The entry of the latter is, to be levied on the lands: but the declaration states a judgment to be levied of the goods. The court below w.as, for this reason, right in deciding, that there was no such record as that declared upon.
   The opinion of the court was delivered by

Gibson, J.

Where the personal assets are exhausted, the plaintiff, if there be no defence on the merits, may take judgment for the debt or damages to be levied of the decedent’s land; and such judgment is therefore no admission of personal assets, but it is on the contrary, so far, an admission that there are none. Here, however, the judgment is said to be de bonis testatoris, with a stipulation by the plaintiff, that he will take execution only againstthe land, and therefore, that the judgment is conclusive of the existence of personal assets in the hands of the exeeutors. If the judgment should be considered to have been taken by confession, the consequence would not follow, aá has just been decided in Hussey v. White. But it stands indifferent whether it be considered as a judgment by confession, or not. The entry is in these words: “Judgment de bonis, execution to be levied of the lands of the decedent, for the sum of, &c,” Now the meaning of a judgment de bonis testatoris is, that the plaintiff recover his debt or damages to be levied of the goods and chattels of the testator in the hands of the executor; and it is so expressed where the record is made up at length. The words de bonis, therefore, as they stand in this entry, are insensible and void, the latter clause being explanatory, of the first, and demonstrating an intention to sign judgment de larris. They no doubt crept in, under a supposition that as, by. the act of assembly, lands are in all cases assets for the payment of debts, they are necessarily assets in the hands of the executors; and that those words are requisite to prevent the judgment from operating against him personally: whereas the distinction between assets in the hands of the executor and assets in the hands of the heir, is as distinctly marked here, as it is in England; the only difference being in the manner of getting at them, as by the custom of the state, (and a very bad custom it is,) the action is in all cases, brought against the executor, and the real assets levied in the hands of the heir. Where the executor has pleaded plene administravit, and the plaintiff 'is satisfied that the personal assets are fully administered, the practice is to confess the matter contained in the plea, and pray judgment of the land; but he could not after such confes-sion pray judgment of both goods and land; and fix the executor with a devastavit by concluding him from contesting the existence of personal assets. The entry here, although informal, is therefore to be taken as a judgment de terris; and the court was right in holding that the plaintiff had failed in producing such a record aá is set out in his declaration.

Judgment affirmed.  