
    Norfolk’s Ex’r. de son tort, vs. Gantt.
    On lhe death of a defendant in an action of debt, a summons may • issue to an execu* tor tie ¿on tprt9 i (there being no le* gal executor or administrator of the decease <],) to ap* pear t,o and defend ‘ the action.
    Where an exe».. cutor tie spn tovt9 being, summoned, appeared to an action of deb$ brought' against the deceased, and confessed the action, antfadmitted the debt was due to the plaintiff"; an. auditor was thou appointed t« a#» certain the sunn for which judgment should he rendered, regard being had to the assets, &c. accord dins'to the act of 1793, ch. 101, svb ch, 8, s. Í). This appointment of auditor was afterwards stricken, outliv the county court, and a judgment was rendered on the confession above mentioned, for the debt and costs, tie bonis cestatocU, si »on de.bonk propr^f i* to eon*, £rror beajig brought, thej^udg’ was reversed ay the of appeals
    Error to Calvert County Court. An action of debt was brought en a single bill, by the defendant in error, against James Norfolk in his life-time, to which he appeared and pleaded payment: Ilis death was afterwards suggested, and a summons issued for the plaintiff in error, as executor de. son tort, to appearand defend the action,, who being summoned, appeared, and afterwards confessed-the action, and that the debt demanded was due to the. defendant in error, together with a sum as damages and costs. Upon which an auditor, was appointed to ascertain the sum for-which judgment should be rendered, accor, ding to the act of 1798, ch. 101, sub ch. 8, s. 9. The-auditor reported, that it did not appear by the records of the orphans court of the county that any administration had been granted'on the estate of the deceased, so that he • i could not say what assets, if any, were in the hands of the in error. The record states, that the auditor, who had been appointed, on refusing to act, was ordered to be struck out, and another person was appointed in his place. After .which, on motion of the defendant in error, it w'as ordered by the court, that the appointment of auditor so made be struck out, and on his prayer that the court would “enter judgment on the confession” of the plaintiff in error, “so as aforesaid made in the plea aforesaid,” the court entered judgment against the plaintiff in error, for the debt and damages and costs, de bonis tesiatoris, si non de bonis propriis as to the costs. To reverse which judgment the present writ of error was brought.
    The cause was argued at June term 1808,
    before} Tilóhhan, Polk, and Buchanan, J. and was reargued at the present term before Chase, Ch. J.1 Polk, Buchanan, Nicholson, and Eaule, J.
    
      Rey, and Johnson (Attorney General,) for the plaintiff in error,
    contended that there was no privity in law or otherwise between ap executor de son tort, and the deceased, and he could not regularly be summoned and made a party. The act of 1785, ch. 80, does pot justify it. An executor de son tort can only be resorted to by an original action against him. There' can be no judgment against him-but of assets proved to have come to his hands. The act of 1798, ch. 101, directing the appointment of an au- . ditor, does not take in the case of an executor de son tort» It only relates to cases where letters testamentary or of administration have legitimately issued. It is by no'means clear, that confession of judgment by an executor de sore tort would be correct, if he admitted'assets, provided the - action was not originally brought against him. The court could not give judgment for a portion of the assets against such an executor. Here the court entered judgment for the debt and damages confessed, and costs, to be levied of the goods of the deceased, if the executor de son tort had so much in his hands; and. if not, then the costs to be levied of the goods of the executor. This is not a legal and correct judgment. A judgment against a wrongful executor should'be de bonis propriis for the amount of assets charged and proved in his hands, but thérp can be no judgment' against' him of assets guando acciderint, 
      against a rightful executor, Upon the death of James Norfolk, instead of making the executor de son tort a party, he should have been proceeded against by a new action. Under the act of 1785, ch. 80, an executor de son tort, not being a representative of the deceased, there could be no continuity of the proceedings against him; and that act never meant to embrace a wrongdoer; it intended to provide only for the legal party being made plaintiff or defendant in place of the deceased. The making an executor de son tort a party, may be likened to the case of an ejectment where the defendant flies, and a person enters into possession who has no right; and it will not be contended that such person could be made a party in the place of the deceased defendant? There may be a rightful and wrongful executor of the same person. Does the act of assembly contemplate that the wrongful executor may be made a party, and not the proper executor? Suppose, after tjie death of James Norfolk, three persons had each taken a horse, the property of the deceased, could all threo be brought into court, and be made defendants in fhe place of the deceased? Though each wight take a horse, yet they were not bound for each other. There can be no hardship in this cage, as the plaintiff below might have administered on the estate of the deceased, if there was no legal administration. The judgment is manifestly erroneous; and if the executor de son top could be made a party under the act of 1785, the judgment should have been' tie bonis propriis, and pot qnaiido vcc.idepnt. The court below entered the judgment, although the executor de son tort did not confess that he had assets, lie only confessed the sum due, and did not admit that be, had assets. The act of 1798, ch. 101, was made a pretext for the appointment of an auditor, although that act was made to protect rightful executors, so that the assets might be apportioned. The court nevertheless struck out their appointment of an auditor, and entered judgment upon the confession. An executor de son tort is not affected by the act of 1785, ch. 80; if he is, he is equally affected by the act of 1798, ch. 101. If he could be legally made a party, the judgment could not be entered against him, but in pursuance of the act of 1798. The proceeding's bcipg dearly erronepus, the judgment must fee reversed.
    
      Magruder, for the Defendant'in error.
    It has been contended that the judgment of the court below must be reversed, because it is against au executor de son tort, who-it is said cannot be made a party, under {he act of 1785, ch. 80, to the original action. The correctness of this .idea will be questioned; but to obtain a reversal of the judgment, something more is necessary to be shown. It is necessary to prove, not only that the action cannot be continued against an exec.utor de. son tort, but also that he can avail himself of the objection in a court of error, and after lie has confessed judgment in the court below.
    1. Before the act of 1785, the death of either party-abated the suit. Upon the death of the defendant, the plaintiff was obliged to proceed de novo. The inconvenience of this was felt, and to remedy it, was the evident intent of the legislature in making the act of 1785, ch. 80, where it is declared that no action shall abate by the death of the defendant, but the executor, administrator, or “othep proper person to defend,” shall be made a party. If an executor dc son tort cannot be made a party defendant to, {he original action, what meaning will be affixed to these words of the law, “other proper person to defend?” The words unquestionably, in.clude executors de san tort, whp are responsible to the plaintiff on account of the assets in their hands, and who are proper persons to defend the original action under the law of 1785; because, before the passage of that law they wore liable in an original action. The intention of the legislature unquestionably was,, that the old suit should be continued against any person against; whom a new action could be instituted; and that executory de son ior.t may be made parties to the original suit, is evident, not only from the intention of, (he legislature, but the words of the law. Indeed, these words, ‘fother proper-person to defend,” seem to have been introduced eguhitn-*., dtanli cautela, and to prevent the. possibility of an abatement of the original action, if there can be found any person. who, having in his bands assets of the original defendant, is, to the amount of them, responsible to the credi-, tors. Every person who takes possession of the assets of a deceased debtor, ia, in respect to creditors,, the execu-, {or; and whether the possession of them has been rightfully . or wrongfully acquired,, are responsible as executors to the amount of tljnse assets to the creditors,; It i§ no defence by a man who has seized upon the fund for paymett! of debts due from a deceased person in actions by creditors, that his possession (if them is not legal. 'I he creditors are not bound to enquire whether the possession is rightful or wrongful. The plaintiff iii error would not have been allowed, in the court below, to avail himself of such a defence. It is true that an executor (le son tort cannot be made a plaintiff in the original action; because he has no right to demand the debt, and before the act of 1785, he could not have brought an action for the recovery of it. Under the act of 1785, any person can be made a party defendant against whom the plaintiff’ in the action could have proceeded in an original suit, to be brought before the passage of that act. It is asked, how is a plaintiff to proceed if there be several executors deson tort— can he make only one of them, or is he at liberty to make all of them, parties to the original suit? An answer to this is nbt necessary. It is sufficient to say, that he may make as many of them parties to the original suit as he could to a second action to be brought by him upon the abatement of the first. But if this be not a sound construction of the act of assembly, yet it remains to be enquired,
    2. Whether the plaintiff" in error is not too late with his abjection? It may be true that an executor ds son tort is not a proper person to defend the original action, and therefore is not to be made a party to it, yet it is apprehended, that this defence ought to have been made in. the court below; and having been waived there, cannot be relied upon in etror. Leave is given to the plaintiff" to make a pioper party, and because he suggests to the court that the plaintiff" in error was a proper person to defend the suit, a summons is directed to him to appear and show came why the, ■suit should not be continued against him. It was not incumbent upon the plaintiff below to show for what reason the suit might be continued against him — in what relation Tie stood to the debtor, or to the fund; being suggested to be a proper person to be made a party to the suit, he is required to appear and state his objections to a judgment being recovered against him. If there were not in his hands assets sufficient to discharge the plaintiff’s claim in due course of administration, this might be shown; and if pleaded, the plaintiff’ could only recover against him upon proof of assets. But if this is not pleaded, the judgment would of course be for the amount of the plaintiff’s claim So too, if not a proper person to be made a party to the suit, this oua:ht to have br >n stated to the court, either at the time ot hi s' appearance, or by plea, and whether he was or was-not, being in some measure a question of fact, would have been examined, where alone it could be examined, in the court below. Instead, however, of making this defence, or of showing any cause why he should not be made a party, he has confessed judgment, and thereby admits himself to liave been a proper person against whom the original suit was to be continued. Having, by his confession of judgment, acknowledged himself to be the proper person to defend the suit, the objection, now so strenuously urged against an affirmance of the judgment, cannot be heard in this court. It is true, indeed, that in the summons which was issued against him, and which the clerk has unnecessarily copied into the record, he is styled executor de son tort. Whether this proceeded from any knowledge possessed by the clerk that letters testamentary had not been granted to him, or from his ignorance thata rightful executor' and an executor de son tort were different characters, does not appear, and is wholly unimportant. The appellation given to him in the summons cannot be resorted to in proof of his being an executor de son tort. The summons does not belong to the record — it makes no part of the pleading, and was not necessary to have been issued. Any incorrectness in it cannot prejudice the plaintiff below. It might have been directed to any other person — might have stated John Nohes as the proper person to appear to the suit; and might have mistated the names of the original parties, and. the nature of the action; yet if the plaintiff in error chose to appear to the suit, and in place of showing cause below why judgment should not be given against him, to confess judgment, he cannot afterwards come into a court of error and claim a reversal of the judgment, because of any false description, or blunders of the clerk in the summons. If A bring an action against B, and his writ state him to be executor-of C, yet he may afterwards declare against him for a debt due from himself, and after a judgment by confession, or upon verdict, in the court below, it would be strange it in error his counsel urged that he was sued as executor for a claim due from himself. Whether the plaintiff in error was a rightful or wrongful executor, is a question which cannot be examined heref It Í3 a question of fact. The counsel for the plaintiff in * , r error contend that this court is competent to decide it, and they produce for their testimony the subpena, which they say is conclusive evidence of the fact. The plaintiff in error is precluded by hi? confession of judgment in the court below from denying himself to have been the proper person to he made a party to the action, and in this court, must be considered as the executor of the original defendant.
    3. Objection has been made to the form in which the judgment is stated. It seems, however, to be such a judgment as must be recovered against an executor. The plaintiff in error made no defence in the court below. lie could not gainsay the debt, and therefore the sum due to the plaintiff below is first ascertained. While a provision of the act of 1798, eh. 101, was in force, he was not bound to plead plena administravit, and refusing to admit a suf • fiency of assets, the court were obliged to appoint an auditor. Tims far unquestionably the proceedings were regular, and the record is correct. Rut the appointment of auditor is afterwards stricken out and a judgment is entered, which the record states to be given upon the “confession of the defendant in the plea aforesaid.” Herein ail the error Hen. It has been said tiiat the confession did not, wa-rant the judgment — that the confession was, that he could not gainsay the debt, and the court, by giving judgment “upon his confession in the plea aforesaid,” have undertaken to say that he had assets, without any proof before them; for his confession was a denial of it. This however seems to be quarrelling with forms. The record, if correctly understood, will certainly show that the judgment was properly entered. The plea aforesaid, {however strange an expression it may be, as bore introduced.) relates to the reference to an auditor to ascertain assets. Plane administravit, though not pleaded, became unnecessary by the act of 1798, eh 101, is supposed to be the, defendant’s plea, and is certainly the only plea on which lie ever pretended to roly. The confession spoken of is a confession with respect to that plea, and of a Pufficiency of assets. It is a confession made by the defendant after the appointment of an auditor, and in consequence of which’ the appointment was stricken oat. and judgment entered according to it; In a few words, the defendant at first admitted the debt to be due, but would hot confess assets. In consequence the sum was ascertained; but an auditor was appointed to ascertain the amount of assets; TÍie party afterwards confesses there were assets sufficient, and in consequence the appointment of auditor wás Stricken out; and Upon iiis own confession of a sufficiency of assets in his hands to discharge the debt, the court entered against him the judgment, which in all such cases is given. It is said to have been given upon motion of the plaintiff. But this is the form of entering all judgments by confession. The whole proceedings are regular, unless, because an auditor had once been appointed to ascertain the ariiount of assets, it was not in the power of the parties to take the subject out of his hands, and ascertain, by their own confession, the fact which it was the sole purpose by the referentíe to determine. The forms of records might indeed be moré correctly and elegantly expressed, but these are forms to which we are most accustomed, and have in them sense enough to prevent the reversal of a judgment, to which the consent of the party was had in the court below.
   The Court

considered that the summons for the executor de son tort to appear afid defend the action, issued regularly, and that the executor de son tort could be made a party to the action; but that the entry of the judgment was erroneous.

judgment reversed.  