
    E. S. Thomas vs. Dyott, Adm’r of Best.
    Where an administrator neglects to plead plene adminislravit, and the Sheriff returns nulla bona on a fi.fa. issued on a judgment against him, such judgment and execution, with the return of the Sheriff, is sufficient to charge him in an action on the judgment suggesting a devastavit.
    
    
      Jt is sufficient to shew that tile parties all lived in the city of Charles- ■ ton, and that the proceeding’s were carried, on there, to give jurisdiction to the City Court, without proving that the waste was committed there.
    
      HtííED before the City Court of Charleston, September Term, 1820,
    Debt on judgment, suggesting a devastavit.
    
    The following is the report of the Recorder :
    In this case a judgment by default had been obtained against the defendant as administrator of Best, The plain - tiff therefore brought an action of debt upon the judgment,, suggesting a devastavit, in order to render the defendant individually responsible. He produced ,the record of the former judgment, which was in assumpsit. To the declaration, the plea of the general issue had been filed. A peri facias, in the usual form, had been issued, and the sheriff made a return of nulla bona. The judgment war-obtained in Charleston, and the parties, both plaintiff and ■defendant, resided within the city.
    The plea was, not-guilty.
    The plaintiff’s' counsel contended, that the production; of the original judgment, and of the sheriff’s return of mdla bona were prima facie, and, unless rebutted by the defendant, were conclusive evidence that a devastavit had beets committed by the defendant as administrator, and there ■ fore that the plaintiff was entitled to a verdict. He cited Peake's Evidence, 351, and Platt vs. Robins &? Swart-■ivout, 1 Johnson's Ca. 276.
    The defendant’s counsel insisted that this action could not be sustained :
    1st. Because no devastavit had been proved ; as there was a difference where the sheriff had returned nulla bona, and where he had returned devastavit. That, in the authorities relied upon by the plaintiff, -a different issue front the present one was presented to the Court, viz; that which arose tinder the plea of “ nil debetwhereas, in the case before, the Court, the plea was “ not guilty.” He referred to Lord Kenyon's opinion in the case of Erving vs. Peters, 3 Term Rep. G87--8,'
    2d. Because'this Court had no jurisdiction ; the sheriff of Charleston district not having returned that a devastavit
    
    
      bad been committed in the city of Charleston ; but having merely made a general return of nulla bona. I thought the production oí the original judgment, from whence it appeared that the defendant had pleaded the general issue, ' without interposing a plea of plene administravit, or any plea of that nature, accompanied with the sheriff’s return of nulla bona to the writ offieri facias, were conclusive in this case to render the defendant individually liable. That it was immaterial whether the plea of u nil debef’ or of 44 not guilty” had been relied upon ; as in substance both pleas were the same. That under the one, the defendant was not guilty, because he had not wasted the goods of the deceased; and under the other plea, he did not owe any thing, because he had not committed the same act. That in England, the present practice was for the sheriff to return nulla bona to the fieri facias ; upon which the plaintiff brings an action of debt, suggesting a devastavit.™ fTidd’s Practice, 1018.J And to manifest the want of distinction between the returns of nulla bona and of devas-tavit, the sheriff, at his option, may return either nulla bona or radia bona and a devastavit. (Tideds Pr. 1019. J I said that the decisions making executors or administrators liable under the existing circumstances were numerous, and they seemed to me to be founded both in reason and in principle. That it would be vexatious to multiply suits unnecessarily. If the executor had no assets, he ought to set forth that fact as a plea ; and if he did not do só, and was allowed afterwards to plead it to another action, two suits, without any semblance of utility, would be substituted for one ; not only to the injury of the creditor, but to the subversion of the general legal and equitable principle, that if a defendant do not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards do so, either in another suit founded upon it, or to a scire facias.
    
    Upon the second ground, I decided against the defendant, because the judgment was entered up' in the city of Charleston, within which, both the plaintiff and the defendant resided.
    
      A notice was served upon me that a new trial would be moved for, upon the grounds which are included.
    Wm. Drayton, Recorder..
   Mr. Justice Nott

delivered the opinion of the Court. It would perhaps be sufficient to say, that the Court is satisfied with the verdict in this case, for the reasons given in the report of the Recorder. I will, nevertheless, add that the failure of an administrator to plead plene adminis-travit, is an(admission of assets in his hands sufficient to ,pay the debt. Whenever therefore a f. fa. in such case is issued against the goods of his intestate, it is his duty to pay the debt, or to point out the property of which the money is to be made. If no property is to be found, on which the execution can be levied, it furnishes prima facie evidence that the goods have been'wasted. I say prima facie, because, if the goods should be destroyed by the act of God, or taken out of the possession of the administrator by any means.not within his control, perhaps he might be permitted to rebut that evidence by the proof of such fact. But on that point I give no opinion, as no such proof was offered in this case. It operates no hardship or injustice upon the defendant. If he have assets, he ought to pay the money; if he have not, he must plead it. His situation is precisely the same as every other defendant who fails or neglects to protect himself by a proper plea. It is no answer to say that the scire facias, or an action suggesting a devastavit is idle, if the first judgment is Conclusive against the defendant. The same may be said of a scirefacias to revive a judgment or against bail. The judgments in those cases are both conclusive against the defendant up to the time at which they were obtained. The object of this proceeding, is not to afford the defendant an opportunity to re-try the original action, but to shew whether there is any radical defect apparent on the face of the record which renders it void; or whether any thing has occurred since to relieve him from the ultimate responsibility which had. attached upon him by such judgment.

The question of jurisdiction is not more difficult. A devastavit does not usually result from a single act: it depends upon the whole course of administration, it is personal in its nature, and perhaps is incapable oí distinct location. I will not undertake to say how the question might have been viewed, if the administrator had been in one place, the judgment in another, and the residence of the defendant in a third.' But as they all happened in Charleston, it cannot be made a question where the devas-tavit happened.

The motion therefore must be refused.

Justices Colcock, Richardson and Huger, concurred.  