
    Wm. Giles & others v. Amelia Pratt.
    
      Tried before Mr. Justice Martin, at Yorh — Fall Term, 1832.
    Trespass to try titles. The plaintiffs claimed under a deed from the sheriff, to Thomas M’Daniel, whose devisees they are, dated the 14th April, 1821. A judgment by default, on summary process, had been obtained against John Pratt, as administrator of father, Thomas Pratt, dec’d. at October Term, 3 820, and fi. fa. lodged in November following. The judgment as entered up, was that the plaintiff “should recover against the said John Pratt, as administrator aforesaid” the debt and costs; but the fi. fa. commanded the sheriff to make the debt and costs, of the individual property of John Pratt. Under this fi. fa. the land in dispute was levied on and sold, as the property of John Pratt, to M’Daniel. The sheriff’s deed recites, that he had made search for assets or lands of the intestate, and not finding any, he had levied on the land of John Pratt. It was admitted, that at the time the judgment was rendered, the title the land was in John Pratt. Before going into the trial, the plaintiff moved for leave to amend the ment and fi. fa. The Court granted the motion, and they were accordingly so amended, as to be rendered against John Pratt, as administrator, and to be collect-ed of the assets in his hands to be administered, or of ^1C lands and tenements of which the intestate died if so much were to be found, and if not, then the costs to be levied de bonis propriis.
    
    
      adminSrato"or méñtfy SSuK j.s0'íf &™ic $“¡TuPSe fff J^meSf’Sr ST°<¡Sí“Ie“!o ‘I¡rTmaafbLi “ado undor anTwithout no-Sant to® pST; & ^ff6ound° to whether authority f0 son! ciinnot be effoc-¿a by SIcTot hi ti'ie SwproSs. °f
    The defendant claimed under a deed from John Pratt, dated in January, 1821, prior to the sheriff’s levy, but subsequent to the judgment: so that if the sheriff’s sale was valid, the plaintiffs were entitled to a verdict. The defendant however, contended, that the sale under the execution was void, because it was made to satisfy the debt, and not the costs only ; and to prove this, she gave in evidence another deed from the sheriff' to M’Daniel for the same land, of the same date as that under which the plaintiff claims, (and which it was said was first executed) which is silent as to insufficiency of assets or search for them ; and also a renewal of they?, fa. under which the land was sold, with an order thereon from the plaintiff to the sheriff, to pay the balance of the debt to M’Daniel.
    The presiding judge charged the jury that the amendment had relation back to the entry of the judgment, and the sheriff was therefore presumed to have sold the land for the costs, as he was authorized to do; but that, this presumption was liable to be rebutted, and if from the facts they should believe that the sheriff sold to satisfy the debt, and not the costs, the sale was void. The jury found for the defendant.
    The plaintiff appealed and now moves for a new trial, and the defendant also appealed from the order of the Court authorizing the amendment.
    The questions presented in the grounds of appeal are:
    1. Was John Pratt liable on the execution against him as administrator, for the costs, de bonis propriis ?
    2. Had the plaintiffs the right to amend the proceedings, with out notice to the defendant in the execution ?
    
      3. Could the purpose for which the sheriff made the levy and sale, whether to satisfy the debt or costs, affect the purchase ?
    Hill, for the motion.
    Where an executor or administrator suffers a judgment by default, it is an admission of assets. Rock v. Leighton, 1 Salk. 310, 1 Wilson 258. 3 T. R. 685. An executor or administrator defendant is always liable for costs de bonis pro-priis, unless he has plead plene administravit, and it is found for him. Hullock’s Law of costs, 196, et seq. 3 Burr. 1368. Bingham’s Law of Ex. 89. Toller’s Exors. 366,2 Archbold’s prac. 132-3. For precedents of judgments against ex’ors. by nil dicit, and non sum informatus, see. 2 Richardson’s prac. part 2, 57, 58, 188, 189. Tidd’s Appendix, 213. 2 Attorney’s practice, 367. 3 Vade Meeum, 446. As to the amendment — The Court will always amend their proceedings so as to make them conformable, and to give them proper effect. 1 Con. Rep. 324. 3 M’C. 142. Burrows 2730.
    There was error in the charge of the presiding Judge. A purchaser at sheriff’s sale is only bound to inquire whether the sheriff has authority to sell. He is not bound to look into the regularity of the proceedings, or to know for what purpose the sale is made, IN & M’C. 12. 2 Bacon Ab. 721, tit. Ex’on.
    Williams, contra.
    Costs were originally imposed as a punishment, 3 Black. Com. 399, and are therefore properly awarded against an ex’or. who pleads a false plea knowing it to be such. Toller’s Law of Ex’ors. 467. What will be regarded such false pleading as will subject an ex’or. to costs. 8 Wheaton 675. 19 Johns. Rep. 267. The reason of the rule, does not apply to a defendant ex’or. on judgment hy default. Costs are imposed for false pleading, not against exors. who do not plead at all. The case from 1 Salk. 213, does not decide that the judgment against the ex’or. should be de bonis propriis for the costs because he admits assets, if so, why should it not be, for both debt and costs ?
   O-Neall J.

In the view which we have taken of this case, we regard the question whether the plaintiff had the right to amend the execution, as the princi-Pat one, to which all others are subordinate. To decide it, it will be necessary to consider it in two points of view; 1st. as to the liability of the adm’r. to costs de bonis propriis, and 2nd. the right of the plaintiffs to amend without notice to the adm’r.

In Hullock’s Law of costs 196, it is said “ where a party defends as executor or administrator, he is liable to costs in all cases, and in the same manner as other defendants ; and the judgment as to the costs is de bonis testatoris si &fc. ei si non tunc de bonis propriis. If however, he pleads plene administravit generally, or praeter alone, and it is confessed or found for him, and the plaintiff takes judgment of assets quando ac-ciderint, the executor or administrator defendant would not be liable to the plaintiff’s costs, but would be entitled to judgment against the plaintiff for his costs. 1 Saund. 336 2 Tidds practice 1017. Osterhout v. Hardenbergh adm’r. 19 John. R. 266. In the case of Smith v. Goggans, State Rep. 52, the rule stated by Huilock was recognized and adopted; and it was held in that case, that where the administrator pleaded the general issue and plene administravit praeter, and the latter was confessed by the plaintiff, and the former found in his favor and against the defendant, that the adm’r. was liable for costs de bonis propriis. These authorities, however, suppose the executor or administrator to have defended the case, and the case before us presents the question, is he liable for costs when he makes no defence and suffers judgment to go against him by default? Upon first considering the case I was very much inclined to think that he was not liable for costs in the first instance, and that he could be only made liable in the same way for them that he could for the debt, by an action of debt suggesting a devastavit. But on a careful examination of the authorities 1 am satisfied that my first impression was wrong. In the case of Rock v. Leighton, 1 Salk. 310, it was held that “if an executor confesses or suffers •judgment by default, he admits assets in his hands and is estopped to deny the contrary.” This has ever since been regarded as a settled rule at law. The judgment for the debt is however de bonis testatoris, and the defendant is made liable de bonis'propriis by an action of debt suggesting a devastavit. For in legal contemplation, the assets of the testator are supposed to be in the hands of the executor, and that they can be made available by an execution against the testator’s goods ; this legal presumption is only rebutted by a return of nidia bona on the execution, fixing the devastavit. The only reason which can be assigned why an executor or administrator should in such a case, be liable in the first instance to the costs, is, that either his confession or default, is an admission of the debt, and that he has in his hands assets sufficient to pay it, and hence that he should pay the costs out of his own funds as a punishment for neglecting his duty in this respect, the payment of the debt. — • This, it appears to me, is a just and valid reason why he should be liable de bonis propriis. In 2. Tidd’s practice, 1017, speaking of the judgment against an executor or administrator -'‘by confession or nihil dieii,” it is said to be “for the debt or damages and costs, to be levied of the goods of the testator or intestate in the hands of the defendant, if he hath so much in his hands to be administered, and if not, then the costs to be levied of his own proper goods.” The authorities referred to by Tidd, do not sustain his position, except an observation of Lord Kenyon in the case of Farr v. Newman, 4 T. R. 648, and that does not cover the whole ground assumed. In looking however into the precedents of judgments at law, which Lord Kenyon, I think, with great force said, were the best evidence of what the law is, I find them to be uniformly entered up against executors or administrators by nil dicit, according to the rule stated by Tidd. 2. Richardson’s practice, 2nd part, 57, 188, 189. 3. Tidd, 213. The judgment of nihil ditit is, judgment for want of defence, and may as well be entered up for want of appearance, which is strictty a judgment by default, as for tbe want of a plea.. The same rule must govern in both instances.

Ante 167.

The administrator being liable to costs de bonis pro-priis, it is now necessary to consider whether the execution could be amended without notice to the administrator, Before proceeding to consider this point, it is necessary to premise that the case against the administrator was by summary process, the judgment in which is the decree, entered on the minutes of the Court. There is no technical precision observed in the entry of the decree, it is merely that the plaintiff recover an ascertained sum against the defendant. This short entry is considered a judgment, for all purposes for which it could be regularly entered. There is, therefore, no error in the judgment, and it must be considered as standing precisely upon the same footing, as a judgment entered against the administrator, for the debt and costs, “to be levied of the lands tenements and hereditaments, which were of the said T. P. at the time of his death; and of the goods and chattels, which were of the said T. P., at the time of his death, in the hands of the said J. P. as administrator as aforesaid, to be administered, if he has so much in his hands to be administered: and if there are no lands, tenements and hereditaments of the said T. P., and the said J. P. as administrator, as aforesaid, hath not so much goods and chattels of the said T. P. (deceased) in his hands to be administered, as will pay and satisfy the said debt and costs, then dollars, being the costs and charges aforesaid, to be levied of the proper goods and chattels, lands, tenements and he-reditaments of the said J. P.” If, however, the judgment had been irregularly entered up, it might have been amended, on motion, as was decided at our last session, in Charleston, in the case of Hubbell v. Fogartie & wife. In 1 Saund. 336, note 10, to the case of Hancocke v. Prowd, the authority for that decision will be found. “ If the judgment be entered do bonis propriis, instead of bonis testatoris si &c., it is considered as a mere clerical mistake, which the Court below will amend on motion, even after the record has been removed by error and argument in the Court of Error.” If the judgment may be amended on motion, it follows that the execution may. Both are regarded, as in some degree, the act of the Court, and both are amendable in its discretion, in all matters of form. It has long been the settled practice in this State, to allow executions to be amended so as to conform to the judgment, even after a sale under them by the sheriff, as of course, and without a rule or notice to the defendant in execution. I am therefore, satisfied that the administrator was liable for the costs de bonis propriis, and that the execution was properly allowed to be amended on motion, without any notice to the administrator.

The amendment, when made, has relation back to the time at which the execution was issued; and it is considered as issued in the form in which it stands when amended. In that point of view, the sheriff had in his hands, when he sol ’ the administrator’s land, a legal authority to sell it for the costs. Whether he sold for the debt or costs, or for both, was perfectly immaterial to the purchaser. He was only bound to inquire, has the sheriff authority to sell ? If he had, he might buy, and could not be affected by any irregularity in the sale, or the application of the proceeds. The presiding Judge was, I think, therefore, in error, in submitting to the jury the question, whether the sheriff sold the land for the debt, or for the costs ? His sale was good, let his object in selling be what it might, inasmuch as he had a legal authority to sell.

The jury having found against the purchaser’s title, on the question submitted to them by the Judge, we think a new trial must be granted, and it is so ordered.

Johnson J. concurred.

Harper J. absent  