
    Daniel Vertner vs. William H. Martin, Administrator of Mary A. Lacy, deceased.
    It is an unusual mode of practice to permit a party charged with a contempt to put in a plea by attorney, without an appearance in person ; the regular mode is for him to answer interrogatories upon oath, so as to clear himself of the contempt.
    It is no bar to a proceeding in the probate court for an attachment against an administrator for a contempt, in failing to pay a sum of money which he had been previously decreed to pay, that a former' citation had issued for the same subject-matter upon the petition of the same party, and that on the hearing thereof the same had been dismissed by the court.
    "Where, therefore, in a proceeding for such attachment, such a former citation was plead in bar, it was held, that the defence being unavailable, a peremptory attachment was properly ordered.
    The issuance of citation in the probate court to an administrator, on a judgment of the court, ordering him to pay money, is only process intended to carry into effect the judgment of the court; and the quashing or dismissal of final process does not affect the judgment from which it emanates.
    The act of 1846 (sheet acts, p. 144,) which provides for the issuance of attachments to enforce the decrees of the probate court, introduces no new remedy in that particular ; such a power has long belonged to that court.
    It seems that the power given by that act (of 1846) to the probate court, in some cases to issue & fieri facias, is a new remedy.
    Jn error from the probate court of Claiborne county ; Hon. William M. Randolph, judge.
    William H. Martin, administrator of Mary A. Lacy, filed in the probate court the affidavit of W. S. Wilson, stating that Wilson, in pursuance of a letter of attorney from Martin, showed Daniel Yertner, executor of Peter A. Yandorn, a copy of a decree of the probate court, showing the sum of three hundred and fifty dollars to be due from Yertner, as executor of Yan-dorn, to the legal representatives of Mary A. Lacy, as her distributive share of her father’s estate, and on behalf of Martin^ as administrator of Mary A. Lacy, demanded payment from Vert-ner; that Vertner refused to pay it, alleging that he owed no part of said sum, but that he had, as executor of Vandorn, paid to said Mary before her death, all she was entitled to receive from his estate.
    To this affidavit was annexed the letter of attorney from Martin, and also a copy of a decree of the court, made August 22, 1842, on the final settlement of Vertner’s account as executor of Vandorn, on a bill filed for that purpose by Earl and Aaron Vandorn, two of the distributees.
    The decree directs the payment of three hundred and fifty dollars each to Jane Vertner, Octavia Sulivane, and the legal representatives of Mary A. Lacy, deceased, and to make an equal division of the residue between Earl, Aaron and Emily Vandorn.
    On the filing of the above papers, an order was made by the court on the 25th March, 1845, and a 'citation issued thereon, requiring Vertner to show cause at the next term, why an attachment should not issue against him for failing to pay the said money to Martin, as administrator.
    At the April term, 1845, Vertner filed a plea to this citation, which denies his liability to answer it, because (it says) on the 26th December, 1843, Martin, as administrator as aforesaid, filed his petition in said court, for a rule upon him to show cause why payment of the said sum of three hundred and fifty dollars should not be made to him. That a citation was issued thereon, and on the 26th of March, 1844, he filed his demurrer and answer to said petition, insisting on his demurrer, and setting up in his answer among other things, that he had overpaid to Mary A. Lacy, in her lifetime, her. share of the estate of Peter A. Vandorn, and that the estate of said Mary A. Lacy. was largely indebted to him, after deducting said sum of three hundred and fifty dollars. And that such proceedings were thereupon had, that at the March term, 1844, of said probate court, on motion of said Vertner, and upon his answer, the said citation was dismissed; that said petition, citation and proceedings Were founded on the very same subject-matter, concerning which the citation to the then present term was sued out; that the dismissal of said first citation and proceedings remains in full force and unreversed, and the same is pleaded in bar of the present proceedings.
    To this plea, Martin filed a demurrer at the May term, 1845, assigning for causes; 1, that Yertner being shown to be in contempt of the court and its decree, ought to have appeared in proper person, to purge himself of the charge; and 2, because the petition of Martin was not dismissed, but only the citation; and because the court is not concluded by the first decision; from granting process upon a better and different showing.
    At the May term, 1845, the court being of opinion that Yert-ner had failed to show sufficient cause why an attachment should not issue against him, ordered, “ that an attachment issue, returnable to the next regular term of this court, against the said Daniel Yertner, executor as aforesaid, directed to the sheriff of Claiborne county, commanding him to attach the body of the said Daniel Vertner, and keep him in custody until he shall perform and fulfil all and singular the matters and things required of him, in and by the said decree commanding him to pay the said sum of three hundred and fifty dollars, to the legal representatives of Mary A. Lacy, deceased, or until further order shall be made in the premises by this court.”
    To reverse this decree, the present writ of error is prosecuted.
    
      H. T. Ellett, for plaintiff in error.
    ' 1. A writ of error will lie in this case; the judgment being a final adjudication that the plaintiff in error is in contempt, and that he be committed to custody until he perform the former decree of the court. McCredie v. Senior, 4 Paige, 378.
    2. The affidavit, letter of attorney, and copy of the former decree, which were laid before the court below, as the foundation of the rule to show cause, are properly parts of this record. It is the petition of the party. It is the showing to which the defendant’s plea applied. The plea was demurred to, and the demurrer sustained. No bill of exceptions could be taken. The statute in such cases requires the papers filed in court to be copied in the record. H. <fc H. 473, sec. 20.
    3. The order of the court below is erroneous.
    1st. Because the former decree sought to be enforced, was in favor of the “ legal representatives” of Mary A. Lacy; and Martin, on whose application the attachment was ordered, is the “ personal representative; ” the term “ legal representatives ” is technical, meaning heirs, and is used in contradistinction to the “ personal representatives/5 who are the executors or administrators. 2 Tidd, 1118.
    2d. The plea presented a good bar to the attachment. The former proceedings were of the same character, and had precisely the same object, and the court below dismissed them. lt Nemo bis vexari debet pro eadem causa.” The court was right in thus dismissing them, because the answer showed that the money had been advanced to Mrs. Lacy in her lifetime, before the decree of distribution. The decree only ascertained the amount of the estate to which each legatee was entitled on distribution. It did not, nor could it, settle any questions as to payments made by the executor to each legatee before the decree. It is discretionary with the court whether to enforce the decree by attachment, and in this’case the court properly left the parties to their remedy at law.
    3d. That the probate court does not possess the power to enforce all its decrees by attachment. Special power is conferred in certain cases, and this excludes the idea of a general power in all cases. But if it possesses the power, it was error to order the defendant to be committed until he performed the decree, on a mere hearing of a rule to show cause why an attachment should not issue. The order ought to have been for an attachment to bring in the party to answer the contempt, upon which he is entitled to be heard. Here he had no opportunity to defend himself. 1 Tomlin’s Law Die. Attach. 144; Stacy’s Case, 10 Johns. 328; Vanderbilt’s Case, 4 Johns. Ch. R. 58; 1 Hoffman’s Chan. Practice, 432-441; McCredie v. Senior, 4 Paige, 378. ' *
    
      
      W. 13. Wilson, for defendant in error.
    1. The writ of error will not lie; the judgment is not final. Regan v. Stone, 4 S. & M. 691.
    2. There was no bill of exceptions; nothing to show on what the court below acted; nothing to bring before this court the papers and evidence on which the judge decided; consequently, unless the judgment be erroneous on its face, it must stand.
    3. Yertner’s plea sets up that he paid Mrs. Lacy in her lifetime the sum claimed; the answer to this is, the decree concludes him from such defence ; it orders payment to the representatives. ' ■
    4. The petition of Martin is not alleged to have been dismissed ; only his citation ; the latter may have been dismissed for irregularity in the process ; that could not aifect the validity of the decree; the first citation having failed to enforce the decree, the second is resorted to for that end.
    5. The probate court decreed Vertner to pay the three hundred and fifty dollars; he has not done so, that decree is still in full force. Has he shown any valid reason for escaping it 1 If not, the decree should stand.
   Mr. Justice Clayton

delivered the opinion of the court.

In March, 1845, a citation was issued from the probate court of Claiborne county, upon the application of W. H. Martin, administrator de bonis non of Mary A. Lacy, deceased, directing D. Vertner to appear at the next term of the court, to show cause why an attachment should not issue against him, for a contempt in failing to pay a sum of money, which he had been previously decreed to pay to the legal representatives of said Mary A. Lacy.

In obedience to the citation, Vertner appeared by attorney and pleaded, that a former citation had issued for the same subject-matter, upon the petition of the plaintiff, and that on the hearing thereof, the same had been dismissed by the court, and he pleaded the same in bar of this proceeding.

It is an unusual mode of practice, to permit a party charged with a contempt to put in a plea by attorney, without an appearance in person the regular mode is for him to answer interrogatories upon oath, so as to clear himself of the contempt. Tom. Law Die. tit. Att.; 1 Smith’s Ch. Prac. 168. ■

The -court, however, in this instance, acted upon the plea, the party having demurred to it, and directed a peremptory attachment to issue against the defendant. The dismissing the first citation, as stated in the plea, was no bar to a second for the same cause. It was only process intended to carry into effect the judgment of the probate court; and the quashing or the dismissing of final process, does not affect the judgment from which it emanates.

This showing, therefore, made by the plea, was not a sufficient answer, and the party was entitled to the attachment. In McCredie v. Settlor, 4 Paige, 381, the court say, “if the contempt be admitted, or no cause shown against it, the court proceeds to award the punishment.”

In this case there having been no sufficient cause shown, it was right to award the peremptory attachment.

The act of 1846, p. 145, recognizes this as the proper practice ; though we do not regard that act as introductive of a new remedy in this particular. That an attachment is an appropriate remedy in the probate court, was settled at an early day. Walk. Rep. 310. The fieri facias given by that act, is perhaps a new remedy.

The judgment is affirmed.  