
    W. White, Guardian, vs. T. K. Archbill, Ex’r.
    
    Administratobs ahd Executors. Personal liability upon foreign judgment. Pleading. An executor sued in this State upon a judgment from another State, cannot have the benefit of a plea of fully administered here, if no such plea was made in the original suit. Thus, to a scire facias against an executor of bail in North Carolina, he plead nul tiel record — payment—and surrender of principal, all of which were found against him, and judgment thereupon rendered against him as executor. Upon a transcript of this judgment he was sued in this State, and verdict rendered against him, upon which the court refused, upon motion, to render judgment to be levied de bonis propriis, but rendered the same leviable de bonis testatoris. Held, that the executor in such case, not having availed himself of the proper plea in the original suit, could not now do so, and that he was liable in his own goods for the debt.
    FEOM HAYWOOD.
    This action of debt, upon a transcript of a judgment from North Carolina, was submitted to a jury of Haywood county, at tbe February term of tbe circuit court of said county, before Judge Eead, and resulted in a verdict for tbe plaintiff, whose counsel moved for judgment to be entered leviable de bonis propriis, which the court overruled, and ordered the same to be entered, to be levied de bonis testatoris. Whereupon the plaintiff appealed in error.
    L. M. CaMpbell, for the plaintiff in error:
    The error assigned is, that the circuit court of Haywood county, rendered judgment to be levied de bonis testatoris, and not de bonis propriis. No plea of fully administered or no assets, was filed by the defendant, either in the suit in North Carolina, or in this suit.
    The suit is brought against the defendant individually, the word executor being used only as deseriptio personae.
    
    The only pleas in this suit are nul tiel record and payment — both which were found against the defendant.
    It is insisted that the defendant is liable de bonis propriis on two grounds.
    1. The judgment in North Carolina is against him personally, being upon a sei. fa., issued against him as executor, to whieh he pleaded Unul teil record” — “surrender of principal” and “death of principal” — all which being found against him, the judgment of the court is in these words: “It is considered that the said W. White, guardian, &c., the plaintiff as aforesaid, do recover of the said Thomas X. Archbill, executor as aforesaid, his said debt of $220 Y5, also $14 Y0 costs of original suit, with interest on the debt from 15th March, 1849, until paid, and costs.”
    
      
      ■ This is the entire judgment, and it is submitted that this judgment makes him individually liable; the words executor, &c., being construed only as descriptive of the person.
    The counsel saw the force of this, and, therefore, after this suit was commenced here, they applied to the court in North Carolina to amend, the judgment, as they attempt to show in exhibit A in the bill of exceptions. But if this were admissible, which I doubt, 10 Yerg., 542, 548, they have failed to prove it. Exhibit A, purporting to be a copy of a record, is not properly authenticated, being certified by the “chairman,” and not by the “ presiding magistrate,” “ chief justice,” or “ the judge.” See act of-Congress.
    It has been held in Mass., 16 Mass., 71, Talmadge vs. Ohapel, and see also Biddle vs. Wilkins, 1 Peters, 686, that an administrator may maintain debt in one State in his individual capacity upon a judgment recovered in another State as administrator, and why may not the converse also be good law?
    . 2. If the judgment have the effect to charge him only as executor, by the terms of the judgment itself, I still maintain that he is personally liable, and no other judgment except da bonis propriis can be rendered against him in this State.
    A foreign executor cannot sue or be sued, as suck, in this State, since the repeal of the statute expressly authorising it. ALlsup vs. Allsup, 10 Yerg., 285. George vs. Lee, 6 Humph., 61. The exception to this rule, if indeed it be not confirmatory of the rule, is the case where administration attached in another State, and the goods of deceased are brought into this State by another person, the former administrator can maintain a snit here, not as administrator, bnt in his own legal right as trustee. Keaton?s distributees vs. Campbell et al., 2 Humph., 229.
    This arises from the principle, that the administrator is vested with the property in the goods of his intestate. So completely are the assets the property of the representative, in legal contemplation, that the claims against him, in respect to the assets in his hands, are personal demands at law. Sneed vs. Cooper, Cook, 200, 206, citing 4 Term Rep., 632.
    His power of alienation is absolute: he may sell, give away, or otherwise dispose of them, as he thinks proper. Id., and McAlister vs. Montgomery, 3 Hay., 98. “From this principle it follows, that the demands of creditors are personal against him.” Idem, 1 Saunders, 217. And this personal liability can only be avoided by pleading no assets; and even this plea would come too late, after a judgment once obtained, to establish the claim. Williams'1 adm’r, vs. Hopson et al., 1 Yerg, 399. The record from North Carolina shows that execution issued, to be levied de bonis tes-tatoris, and a return thereon of nulla bona. It is upon this record that this action of debt is brought.
    The following authorities would seem, therefore, to settle the question beyond any doubt:
    A judgment against a personal representative upon any plea which admits assets to be in his hands, or which denying assets is found against him, is conclusive to show that he has assets to satisfy it. But it does not necessarily follow, that he has committed a devastavit, because the goods may have been unavoidably lost or destroyed after judgment and before execution issued. But if no goods can be found upon a fi. fa. de bonis testatoris, issued upon sucb judgment, an action of debt may be brought, (or a sei. fa. prosecuted on tbe judgment suggesting a devastavit,) in which the judgment, if against the representative, will be leviable de bonis propriis; and he can only defend himself against such judgment, by proving there were goods of the intestate which might have been taken in execution. Griffith vs. Beasly, 10 Yerg., 434, 438. 2 Williams on Executors, 1225. Blount <& Wilson vs. Hopson & Allen, 1 Yerg., 399.
    Bead & Shapakd, for the defendant:
    A personal representative can neither sue nor be sued in a foreign tribunal. Allsup vs. Allsup, 10 Yerg., 283, 287.
    The judgment is void, because it does not pursue the verdict, and the court will look behind the judgment of another State, to see if the court pronouncing it have jurisdiction. 3 Yerg., 395-6.
    The suit is brought in the name of W. White, guardian, for the use of Wm. H. Pearce, when the judgment was rendered in the State of North Carolina in the name W. White, guardian.
    The circuit court of Haywood county proceeded to trial, at the February term, 1855, without disposing of the motion made, October term, 1854, for leave to file other pleas, in which the defendants insist there was error.
    The defendants also insist that there is no appeal bond according to the statute, and this cause is not properly before the court for a reversal or modification, of the judgment of the court below.
   Caruthers, <L,

delivered the opinion of the court.

This was an action of debt brought upon a record from the court of pleas and quarter sessions of Craven ■county, North Carolina, in the circuit court of Haywood. After the cause was at issue, the papers were lost, and they were supplied by agreement of counsel. They agree “to the above facts,” and that the writ and declaration were in the “usual and proper form,” and also the pleas', “ nul tiel record and payment,” to which there were replications and isues.” A transcript of the record was filed and admitted 'to be duly authenticated.

The jury found for the plaintiff the amount of the judgment recovered in North Carolina, with interest, and the court entered judgment upon it, but ordered the money to be levied of the effects of the deceased in the hands of defendant to be administered, and refused, on motion, to render it against the defendant personally. To this there was exception, and that is the only question in the case. It must depend upon the state of facts in the North Carolina record.

Sarah Jones had become special bail for Lovick Jones, and died, leaving the defendant her executor. The bail bond was forfeited, and a seire faeim issued against defendant as executor, to which he pleaded, “1. Nul tiel record. 2. Surrender of the principal; and 3. Death of the principal.” These pleas Were all found against him, and judgment rendered in these words; “It is therefore considered by the court, that the said Whiteeote White, guardian and plaintiff as aforesaid, do recover of the said Thos. K. Archhill, executor as aforesaid, his said debt, &c.” This judgment did not contain the usual and proper clause that the money was to be levied of the goods and chattels of the deceased, but the execution did, and was returned, nothing found, in 1851.

The defect in the judgment, only made it erroneous, not void as to the executor. He could have had it otherwise by taking the proper steps, and cannot now object to it.

To remedy this difficulty after this suit was brought upon the judgment, an application was made by the defendant to the court, in which it was given in NT. C., to have the judgment amended and put in the proper form-, nunc pro tuno, and the same was done and transcript thereof was filed in this case. If that could be done, which is by no means admitted, it is difficult to see what benefit it could be to the defendant.

The question would still recua?, is not an executor or administrator personally liable upon a judgment against him as such, if no goods of the deceased can be found to satisfy it? Nothing else but a plea of fully administered or no assets, found for him in the original suit, can save him from the consequence.

This liability may be enforced by an action of debt, or a scire facias. In this proceeding, . he cannot be allowed to say that he had no assets, or had fully administered them, the time to do that has passed, and even if the truth was that way, yet he has precluded himself from relying upon it by his pleas, or failure to plead it in the former suit, and is liable in Ms own goods. Assets are conclusively admitted by the pleadings in such case, and he can have no plea denying it. 10 Yerg., 438. 1 Yerg., 399.

True, to produce this effect, the declaration upon the judgment must suggest a devastavit. Here, it is argued, that does not appear. The declaration is lost and supplied by an agreement, that it is in the “usual and proper form,” and that no other defence was made, but the pleas in bar of “payment, and nul tiel record.” We must take it to be admitted, that it contained all proper averments to charge the defendant.

This was certainly so, if it were in the usual and'proper form, and that is the admission. The only exception to this rule, is in cases where the adm’r. had no opportunity to plead, such as judgment by motion, &c. 2 Yerg., 302. 5 Humph., 428. 4 Hayw., 240. In these cases he is allowed his plea of fully administered, or no assets to a soi. fa., or action of debt upon the judgment.

The case under consideration, does not fall within the exception.

There is then error in the refusal to enter the judgment, to be levied of the proper goods of defendant, and for this the judgment must be reversed, and the proper judgment here rendered upon the verdict.  