
    *Ruffin v. Pendleton and Courtney Executors of Harwood.
    
    April Term, 1796.
    Executors — Devastavit—Plea ot Plene Admlnlstravlt.— In debt upon a judgment rendered against an executor upon motions, the declaration suggested a devastavit of assets, which came to the executor’s hands after the judgment. The executor is not precluded from pleading a special plene adminis-travit, and from supporting it by proof.
    This was an action of debt brought by the appellant in the District Court of King and Queen, upon a judgment recovered by motion against the appellees, as executors of William Harwood. The declaration states the judgment and award of execution thereupon, with the return, “that no effects of the testator were to be found in the hands of the defendant. ” The declaration avers, “that after the rendition of the said judgment, divers goods and chattels which were of the said testator at the time of his death, of value sufficient to satisfy the said judgment, came to the hands of the defendants to be administered, which goods and chattels, the defendants wasted &c. by which an action accrued” &c.
    Plea, “that the plaintiff his action aforesaid ought not to have or maintain against the defendants, because they say, that at the time the said judgment given against them by the said District Court, no goods and chattels which were of the said testator at the time of his death were in the hands of the defendants to be administered, nor have any goods or chattels of the said testator at any time afterwards come to their hands to be administered, except only goods and chattels to the value of £ and which are not sufficient to satisfy the several judgments herein after mentioned, and which are bound and liable to the execution of the said judgment,” [here follows a specification of the judgments] “which said judgments are still in full force, and in no manner reversed or annulled; and the defendants further say, that they have not wasted, eloined, converted or disposed of any of the goods and chattels which were of the testator at the time of his death to their own proper use, in manner and form” &c. To this plea the plaintiff replied generally and issue was joined.
    At the trial, the plaintiff objected to the defendant’s giving any evidence to the jury in support of the issue joined, tending to prove anjr part of the plea, which might have been properly pleaded to the exonera-
    tion of the defendants upon the original 'K'mo(ion, whereon the judgment mentioned in the declaration was obtained, the plaintiff having given in evidence the judgment, execution and return thereon. But the court being of opinion, that the former judgment obtained against the defendants, not being according to the course of the common law, they had been therebjr precluded from defending themselves, as otherwise they might have done, over-ruled the motion, and permitted the defendants to give evidence in support of every part of their plea; whereupon the plaintiff tendered a bill of exceptions which was sealed and made part of the record.
    Verdict and judgment for the defendants, from which the plaintiff appealed to this court.
    Marshall for the appellant.
    It is most clear, that nothing can be pleaded in bar of an action of debt, or of a scire facias upon a judgment, which might have been pleaded to the original action. A full administration, or subsisting debts of superior dignity might have been properly used as a defence in the original action, but were inadmissible in the present suit. The judgment obtained upon the motion, amounted to a confession of assets, and estopped the defendant from afterwards denying that he had a sufficiency to satisfy this judgment. The reason assigned by the court for over-ruling the motion was certainly not a sound one; for the appellee might have given evidence to prove a deficiency of assets, as well upon a motion, as in a regular common law action.
    Campbell for the appellee.
    The plea of “fully administered” does not go to bar the plaintiff’s claim, but to protect the executor; and therefore, the rule mentioned by Mr. Marshall does not apply. But if I should admit the plea to have been bad, still this will not impeach the opinion of the court; for if the plaintiff, instead of demurring, take issue on the plea, the defendant ought not to be prevented from proving the truth of it.
    Marshall. If the plea be immaterial the court will award a repleader; this is always done when the plea, if true, offers no bar to the action ; and if I am right in this, the judgment must be reversed. We are then brought back to the validity of the plea. If the appellee had fully administered the assets, the appellant could not have had a judgment, unless he were contented to taire one when assets might come. But if a judgment be obtained against the executor, he can only defend himself against an action founded upon that judgment, by some matter posterior to the judgment.
    *Campbell. The first judgment does not burthen the executor with
    the payment out of his own estate, unless he put in a false plea. Upon the pleas of payment, and fully administered, the ver-, diet may be against the plaintiff upon the second, and in his favor upon the first plea.
    This case is much stronger for the executor, on account of the first judgment having been rendered upon motion; these summary remedies are not to be favored, because they are contrary to the course of the common law. The executor had a right to a trial by jury upon his plea of fully administered, and though the existence of the debt might have been established by the first judgment, it was still right, that this collateral question should have been decided by the jury. It is impossible that any precedents should be found to govern this case, and therefore the court will so construe the law which sanctions this summary mode of proceeding, as to preserve the trial by jury where it is not expressly' taken away.
    Marshall. The amount of Mr. Campbell’s argument is, that there is no difference between a general judgment against the executor, and one which is to depend upon assets afterwards coming to his hands. But it is clear law, that in the former case, the sheriff may return a devastavit if he please, because the executor is estopped to deny assets; the scire fieri inquiry is only for his safety. It is certain, that judgment rendered upon conlession, or by default, is in admission of assets; so if it be rendered upon the plea of non est factum, or upon the plea of payment. Saík. 310 — 1 Atk. 292. And there is no difference between those cases, and the present, for the es-toppel is produced by the defendant’s not pleading fully administered to the first action.
    Campbell. The case from Atk. is not supported by the authorities which are there cited. Rol. Ab. title executors is referred to in 2 Bac. 436, and the law there stated is, that the executor is no further chargeable than as he has assets, unless he make himself liable by a false plea, or by suffering judgment to pass against him by default. If the not pleading fully administered will subject him to the payment of the debt out of his own estate, why do the books all lay it down, that he makes himself liable by a false plea? Judgment by confession, or by default is stated to be an admission of assets in 1 E)sp. 295. — In Hob. 178, it is laid down, that a confession of judgment is not an admission of assets, and yet there is no plea of fully administered in that case. But none of the cases prove, that assets are *c.oti-fessed, by the failing to plead fully administered. If the doctrine contended for by Mr. Marshall be correct, what reason can be assigned for the judgment being entered de bonis testatoris?
    
      
       Tbe principal case is cited with approval in Gordon v. Justices of Frederick, 1 Munf. 14.
    
    
      
       See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   The COURT

delivered the following opinion: “That the appellant having in his declaration filed in this suit, only suggested a devastavit of assets which accrued after the judgment obtained by him against the appellees as executors of William Har-wood in the District Court of King and Queen, as stated in the said declaration, the appellees were not estopped from pleading a special plene administravit in bar of the appellant’s action, nor precluded from proving the same by the evidence stated in the record as offered by them on the trial of the issue in support of their plea, .and that there is no error in the District Court permitting that evidence to go to the jury.”

Judgment affirmed.  