#### *Eppes’s Administrators v. Smith, Administrator of Bagley.

October, 1815.

1. Pleading and Practice — Plea ot “No Such Record”— Conclusion. — The plea of “no such record,” is not to be tried by a jury, butby the court; and, therefore, ought not to conclude to the county, but praying judgment, &c.

See 2 Chitty, 488,

2. Same — Plea of “Fully Administered" — Conclusion. —The plea of “fully administered,” ought not to conclude to the country, but with a verification. See 2 Chitty, 451. But a defect in this respect is cured by verdict.

3. Same — Plea of “No Assets" — Verdict—Sufficiency. —On the plea of “no assets,” a verdict finding that the administrator has in his hands assets belonging to the estate of his intestate, without saying to what amount, is defective, and a new trial ought to be directed.

See Booth’s executors v. Armstrong 2 Wash. 301.

4. Administrators — Judgment against — Effect.—if a judgment he rendered against an administrator for a debt of his intestate, and, after his death, an action of debt suggesting a devastavit to have been committed by him in his lifetime, be brought against his administrator, such defendant is es-topped, by the judgment, from pleading that no assets of the estate of the original intestate ever came to the hands of the said original administrator.

5. General Replication — Demurrer.—A general replication, and demurrer, to the same plea, may be put in.

See Syme V. Griffin, 4 H. & M. 277.

Upon a writ of supersedeas to a judgment of the Superior Court of Nottoway County.

Owen Smith, administrator of Dicey Bagley, brought his action of debt against Peter B. Jones and John Eppes, administrators of Freeman Eppes, deceased; stating in his declaration, that a judgment (which was described) had been rendered, by the County Court of Nottoway, in his favour, against the said Freeman Eppes, administrator de bonis non' of Henry Anderson, deceased, to be levied of the goods and chattels of the said Anderson in the hands of the said Freeman Eppes, if so much thereof be had, to be administered; if not, then the costs to be levied of the proper goods and chattels of the said Freeman Eppes ; which judgment (except the costs) was still in full force and unsatisfied ; that there came to the hands of the said Freeman assets of the estate of the said Anderson, sufficient to satisfy the said judgment; but that he eloigned, wasted, and to his own proper use conyerted the same; by reason whereof, right and action accrued to the plaintiff in the lifetime of the said Freeman to have, demand, and receive of him the said Freeman, out of his own proper goods and chattels, the amount of the said judgment; yet the said Freeman in his lifetime, and the defendants since his death, had not paid the same to the plaintiff, &c. to his damage 1501. &c.

The defendants pleaded four distinct pleas : first, “no *such record secondly, “fully administeredthirdly, “no assets — and fourthly, a plea more special than the rest, stating, “that no assets of the estate of Henry Anderson, deceased, ever came to the hands or possession of their intestate as administrator of the said Anderson.” All these pleas concluded to the country. On each of the four, an issue in fact was made up ; but to the last there was-a demurrer also. The issues in fact were tried first; and the jury found that there was such a record as the declaration describes ; that Freeman Eppes did not fully administer the estate of Henry Anderson his intestate; and that the said Freeman “had, at the time of his death, assets in his hands belonging to the estate of his intestate Henry Anderson, as the plaintiff in replying hath alleged;” concluding their verdict with finding for the plaintiff the amount of the judgment, with interest and costs. The dem urrer was then sustained, and a judgment entered in favour of the plaintiff according to the verdict.

The petition for the supersedeas alleged, that the proceedings were erroneous in this ; —first, that the plea of “no such record,” had not been tried, the question before the jury being emphatically coram non judice;— secondly, that the plaintiffs replied and demurred, uno fiatu, to the same plea;— thirdly, that the fourth plea was in itself a good bar; — and, fourthly, that the jury, when they found that the said Freeman had not fully administered, ought to have found either that he had assets in his hands sufficient to pay the debt, or the amount of said assets precisely.

Monday, October 30th, 1815,

JUDGE ROANE

delivered the court’s opinion, “that the said judgment is erroneous in this, that the first two pleas conclude to the country, which might have been cured by the verdict, but that is also erroneous in so much thereof as decides on the first plea of “no such record,” which, if properly pleaded, ought to have been decided by the court; also in not finding, on the plea of “no assets,” the quantum of assets which came to the hands of the intestate of the plaintiffs ; and further, in not finding what *assets of Henry Anderson, or of Freeman Eppes came to the hands of the plaintiffs in error. The demurrer to the fourth plea, the court is of opinion, was rightfully sustained by the Superior Court; the said plaintiffs being estopped to plead such plea by the judgment against their intestate Freeman Eppes.”

Judgment reversed ; verdict set aside ; and cause remanded to the Superior Court of Daw to be farther proceeded in.