#### M'KNIGHT v. CRAIG’S ADMINISTRATOR.

In Virginia, if the defendant die after interioustory judgment and a writ of inquiry awarded his administrator, upon *scired facius,*can only plead what his intestate could have pleaded.

ERROR-to the circuit court for the district of Golumbia, sitting'at-Alexandria; in an action of debt upon a judgment and *devastavit,*brought By JVTKnight against Craig, as executor of Mitchell.

, After an office judgment by default against Craig, . , J ° *, .*,, ° i . and a ,writ or inquiry avyarded m November,. 1807, . at the rules, Craig died. At the July term, Í 808, his • death was suggested,and a *scire jactas*awarded against I. G. Ladd, his administrator. At the July term, *1841809,. .(being the fpurth term after the office judgment,) Ladd appeared; by his. attpmeyj, and offered tp plead á special plea of *plene apmihistravit,*by himself, as administrator of Craig, to which the plaintiff objected, but the court overruled the objection, and admitted the plea to be filed.

In all cases ®f reversal, if this court direct the court' below to'enter judgment for the *plaintiff*in error, the court below will, of course, enter the judgment .with the costs of that court.

The sjtbstance .of the- plea was, that Craig had made a deed of trust of'certain *real*estate, fo secure Ládd for his endorsements, for Craig at the bank, by which deed . Craig covenanted to indemnify Ladd. That Ladd had endorsed the notes of ¡Craig to the amount of ¿,000 dollars, which were discounted at the bank, and continued the endorsements to the time of Craig?s death. That .the bank had recovered judgment against Ladd as endorsor of spme of ¡those notes to the amó.únt óf 6,009 ■ dollars, and that Ladd had paid Other of the said notes to the amount of 3,174 dollars, to avoid being compelled by suit to pay the sam.e. T,hat the estate, mentioned in the deed of trust, having been sold, producedonly 4,095'dollars, whereby the estate of-Craig became indebted-to Ladd hi the sum of 5,138 dollars,, and so much of t,he? estate of Craig is liable to be retained by1 Ladd in satisfaction.

That Craig was bound to several other creditors by . specialties in large sums, amounting.to 10,000-,dollars, and suits thereupon have, been brought -against Ladd, apd are now pending; that he has in his hands personal estate of Craig to the amount of960 dollars only, which is liable tp be retained by him in satisfaction of the damage h,e has sustained by his endorsements for Crpig, by virtue of the covenant for his indemnification, and to pay the specialty creditors aforesaid.

To this plea the plaintiff replied the -office judgment and writ of inquiry awarded against Craig’in hie life-time in this suit ; the subsequent death of Craig, and the scire *facias*against Ladd, ás his administrator, returnable to November term, 1’80'¿. .

The defendant rejoined that Craig diedion the day ofin the year 1807.-/ '

*185To this'rejoinder the plaintiff demurred, and as signed as cause of demurrer, that the rejoinder is no answer to the replication, and is a departure from the.

. The court beloiy being of opinion that the plea was good, and the replication bad, rendered judgment upon the demurrer for the defendant.

The plaintiff sued out his writ of error.

E. *J. Lee,*for the plaintiff in error, contended,

1. That the office judgment against Craig in his life-time, is a debt superior in dignity to the debts stated in the plea; and,

2. That the defendant, coming in upon *scire judas,*can only plead such plea as his intestate could have;, pleaded.

1. The office judgment was regularly obtained agreeably to the act of assembly of Virginia, *P. P.*80. § 36. Arid according to the forty-second section of the same act, it became final after the ne$t succeeding court, it not having then been set aside. It being an action of *debt,*the judgment was not interlocutory, but final. 3 *Bl.*Com. 395. 1 *Tidd,*508. .Being a final judgment in the life-time of Craig, it is entitled to apriority of payment before specialty debts.

2. But if it was only an interlocutory judgment, yet; the *defendant',*upon the *scire facias, cov\d ftettd*nothing but what the intestate could have pleaded.

The act of assembly of Virginia, *P. P.*HO. §20. is copied almost *verbatim.'*from the English *statute of 8 and*9 *W.*III. c. 11; and is in these worqs;

“ And if the defendant die after such interlocutory judgment, and before final judgment, such action shall not abate, if the same were originally maintainable against the executors or administrators of such defendant, but the plaintiff shall and may have a *scire facias**186against his executors or administrator^ to show* cause w^> *damages in such action should not be assessed*and recovered by the plaintiff, and if such .executors or admmjstrators shall appear at. the return of stích • writ, ■ and *not show or allege any matters sufficient to arrest the final*judgment, &c. a writ of inquiry of damages shall thereupon be awarded, which being executed, judgment final shall be given for the said plaintiff ” &c.

After such interlocutory judgment the intéstate could only allege matter in *arrest of judgment,*and his administrator can only do the same.

Upon this point the case of *Smith*v. *Harmon, 0 Mod. 142.*and 1 *Salk.*315. is decisive.

*Swann,*contra;

An *office*judgment in Virginia is a very different thing from an interlocutory judgment in England. It may be set aside, as a matter of right, by the defendant at the next succeeding court, and he may plead any matter whatever in the same manner as if no such judgment had been rendered. And by the long esta», blishee! practice of Virginia, he may set it aside at *any subsequent*term, by pleading an issuable plea to. the merits. It is not true, therefore, that Craig could only have alleged matter in *arrest of judgment.*He might have-pleaded anything that went to show that the plaintiff ought not to récover judgment against him.

Upon the death of the defendant, and the appearance of his administrator, it becomes a new suit, and the administrator ought to be permitted to plead any thing that goes to show that the plaintiff ought not to recoVer judgment against *him.*

A debt founded upon a *devastavit*is not of so high dignity as a debt upon specialty.. It is in nature of damages for a *tort.*It is a claim depending upon proof of matter of fact *in pais.*

*187*February*19. .

Marshall, Ch. J.

delivered' the opinion, of. the spurt to the following effect.

The. act of assembly of Virginia, is copied almost literally from the.English *statute of*8 *and*9 *W.*III. c. 11. The case in 6 *Mod.*is a. decision expressly upon that statute, and is precisely in point, that the defendant upon the *scire.facias*can only plead what the intestate could have pleaded; and that it is not to be considered as a proceeding against the representative of die deceased, but a continuance of the original action.

The plea is such as could not have been pleaded in the original action, and is therefore bad.

The judgment must be reversed, and the .emanded for the defendant to plead to me original action, if he should think proper.*

To a question by *E. J. Lee,*the Chief Justice answered, that ’if the plaintiff, in error should obtain a judgment in the court below, it will of course be *with costs.*So in all cases of reversal, if this court direct .the court’ below to enter • judgment for the plaintiff in error, the court below will,.of course, enter the judgment with the costs of that court.

*

 The .court below considered this case as coming witüin the act of congress, *vol Up*71. *passed*24 *th*1789, Authorizes the court *(t to*render judgment for or against the *executor*gr *adminisvr.qtor,*as the case may require.” It does not appear whether that act. was taken into consideration by this court.