
    The Executors of Lynch against The Executors of Inglis.
    If a defendant die after order for judgment on a bond, final judgmentinay be entered up on it at any time ithin two terms al-tera ards.
    
      Tiene nistravit cannot be pleaded by executors lo a scire Ja-das issued a*» gainst
    THIS was an action of debt upon a bond. On the adjournment day of this term, the defendants obtained a rule to shew cause why the judgment entered up by the plaintiffs should not be set aside, and they, the defendants, have leave to plead plene administravit. It appeared that the plaintiffs commenced their action for September return, 1790, against Inglis, in his life-time ; filed their declaration, and served the rule to plead on the 28th of January, 1791, and obtained an order for judgment on the 11th of March, 1791, in default. Inglis died the 31st of March, 1791, and the plaintiffs entered up theif final judgment the 28th of July, 1791, four months af-.er Inglis's death. Af-terwards, the plaintiffs issued a scire facias ; but before a judgment was entered up on the scire facias, notice was given to the plaintiffs’ attorney in the original action, that the defendants would plead plene administravit prater ; of which the plaintiffs’ attorney took no notice. This motion was, therefore, made to set aside the first judgment as irregularly obtained ; and if not, that the defendants might have leave to plead plene administravit to the scire facias. ^ 1 J J This naturally brought two questions before the court: First, Whether the first judgment entered up after Inglis’s death, was regular or not ? And secondly, Whether plene administravit can be pleaded to a scire facias on a judgment against executors, and the debt placed in the order of specialties ?
    Gilb. Hist. Stut.Wm. III.' & to. S,iW. i--
    
    1 Morg. 409. 1 Barnes, 164. 166. 168. 294.
    i Panics, 195.
    Ibid. 294.
    Pinckney, in support of the motion,
    contended, that by the common law the action abated by the death of the de-fenc¡ant> jf not, that a scire facias ought to have issued to the executors to shew cause why final judgment should not be entered up. He admitted that by the stat. 17 Charles II. c. 18. (in force in this state,) if a defendant die after verdict, the plaintiff might enter up his judgment within two terms after; but then this act only extended to verdicts. By stat. 8 and 9 Wm.III.
      
       c. 11. s. 11. (not in force here,) if the defendant die after interlocutory judgment, the action shall not abate, but a scire facias may go against the executors to shew cause why damages should not be assessed, &c. That the order for judgment on the back of the declaration, was analogous to an interlocutory judgment, and, under the rules of court, might have been set aside, on payment of costs, pleading an issuable plea, and coming to trial instanter : therefore, all the rules of law, and adjudged cases applicable to the one, would, with equal force, apply to the other. He contended, that although this last act of parliament was not in force here ; yet it had been adopted by the rules and the practice of our courts, and thereby became as much a law as if it had been formally extended and made of force here. On the second ground he also contended, that the plea of plene ad-ministravit was tantamount to the general issue ; and if it was regular to set aside an order for judgment, and plead an issuable plea, it was not now too late to plead a plea of plene ad.nirdstravli.
    
    Pringle, contra.
    There is a 'material distinction between interlocutory and jhial judgments. Interlocutory, are those given in the middle oí a cause for some default, and which are not conclusive against the party. But final, are those given at the end of a cause, where nothing further can be said against it, and therefore conclusive against the party. As for instance, in all cases sounding in damages, the interlocutory judgment only gives the party a right to re= cover ; but there can be no recovery until the quantum or sum be ascertained by a jury, then it becomes certain and fried. "Whereas, in all actions of debt, the very sum is fixed and exactly ascertained. 'I here the party shall recover in mañero, neither more nor less than what is mentioned in the deed. It is tantamount to a verdict. It is reduced to as great a certainty by the deed itself, as it could possibly be by the verdict of twelve men. 1 herefore, it would be unnecessary and superfluous to send it to a jury, when it is as certain as the nature of the case can admit of. By the stat. 17 Charles II. c. 8. if the defendant should die after verdict, the plaintiff may enter up judgment at any time within two terms after. Why ? Because the demand is rendered certain by the verdict of the jury. Certainty then, being the grand essential requisite of the law in such cases, where can be the difference between the verdict of a jury ascertaining it, and the terms of a deed declaring it ? There surely can be none. For all these reasons it is clear law, that whenever a matter sounds in damages, the interlocutory judgment is not final 5 but when it is for a liquidated sum, in such case it is final; and the suit no more abates by the death of the party, than it would in cases of verdicts. (To this point he relied on 1 Cromp. 279. 2 Raym. 766. 849. Str. 8S2. 1 Barnes, 267. 3 P, Wms. 399- Salk. 401. From all which he concluded by observing, that as the plaintiffs had entered their judgment within two terms after the defendant’s death, it could not now be impeached.) With regard to the second point, whether the defendants can now plead pi ene administraviU it is certainly too late ; for nothing shall be pleaded to a scire facias which could have been pleaded in the original suit ; and the executors cannot now be placed in a better situation than their testator was in his life-time. Resides, the judgment upon a scire facias is de bonis testator is, and can by no means injure executors. The allowing this kind of plea at this stage, would be to deprive the plaintiffs of the priority they have by their judgment, and would be levelling down a judgment to the footing of a specialty, and to be paid in average and proportion ; when, by the clear and known rules of law, the judgment had a lien on the whole of the testator’s real estate. Salk. 815. 11 Vin, 279. Statute of Frauds, &c.
    
      
       Although this is not made of force by A. A. No. 331. which declares a number of British statutes in force ; yet the 6th and 7th sections are copied verbatim into A. A. No. a and into the county court act of 1785.
    
   All the judges were present at this argument; and as the case was of considerable importance to the practice of the court, they took time to consider, and, after consultation, were all of opinion that the judgment entered up, within two terms after the death of lug Us, the original defendant, was regular, and could not be set aside. Upon the second ground, they were also of opinion that nothing could be pleaded to a scire facias which might have been pleaded to the original action. As the judgment, in this case, was against a testator, in his life-time, his executors could not be placed in a better situation than he was before his death. Nothing could be pleaded by them excepting a release, or some matter arising since the entering up of the judg.ment.  