#### Dozier *v.*Executor of Simmons.

From Currituck.

The distributees of A filed a petition against the administrator of A, and charged in the petition that B, one of the children of A, had been advanced by his father in his life time, and made him a defendant in the petition. In the County Court, a jury found that B had been advanced: B removed the proceedings by *certiorari*to the Superior Court, where, after reference to the clerk of the matters of account, the suit as to the petitioners was settled and disposed of; and so much of the case as related to the advancement of B was referred to arbitrators, who decided that B was entitled to receive a certain portion of his father’s estate; and when this award was returned, on motion judgment was rendered for the sum stated to be due, in favour of B against the administrator, without objection:— *Held,*that the circumstances under which the judgment was rendered were such as made the judgment substantially just, as much so as if B had been one of the petitioners instead of a defendant; and as B had issued a *sci.fa.*to the administrator on this judgment, if the administrator had any substantial plea he might urge it against the *sci. fa.*

Tiie distributees *oí James Dozier,*deceased, filed a petition against *Mitchell Simmons,*as administrator *oí Dozier,*for their shares of the estate. The petition stated, that *Enoch Dozier*(who was the plaintiff in this proceeding) was one of the distributees, and had been advanced by *James Dozier*in his life time, and he was made a defendant in the petition. *Enoch Dozier,*in his answer, denied the advancement; and *Simmons,*ip his answer, ex; *27pressed his readiness to pay the estate to whomsoever the Court might direct. In the County Court, an issue was submitted to a jury as to the advancement of *Enoch Bo-czier,*who found that he had received by way of advance- „ *J J*ment $524 60.

Afterwards, *Enoch Bonier*obtained a *certiorari,*and the proceedings were thereby removed into the Superior Court, where it was referred to the clerk to take a general account of *James Boozier’s*estate, and when the account was taken, *Simmons*handed in his vouchers and they were allowed. There was no dispute as to the claim of the petitioners; and after the report of the clerk, the matter as to them was settled, and so much of the case as related to *Enoch Boozier’s*interest in his lather’s estate was referred to arbitrators, who decided that *Enoch Boozier*was entitled to $282 67. When this award was brought into Court, on motion, a judgment was rendered for that sum in favor of *Enoch Boozier*against the administrator of *James Boozier.*

There was no petition or cross bill filed by *Enoch Boozier*to have the benefit of the award before judgment was entered for the amount. On this judgment in favor of *Enoch Boozier,*a *fi.fa.*issued against the goods and chattels of *James Boozier*in the hands of *Simmons,*his administrator, to which the sheriff returned that there was nothing to be found. *Enoch Boozier*then issued a *sci. fa.*to the executors of *Simmons,*who had died, calling on them to show cause why execution should not issue against the proper goods and chattels of *Simmons:*to this *sci. fa.*the defendants pleaded *mil tiel record,*with several other pleas, all of which were found by the jury in favor of *Enoch Boozier;*and on the plea of *nut tiel record,*the Court, Daniex, Judge, presiding, was of opinion, that there was a judgment of record as the *sci. fa.*alleged; and although the entering up of the same had been somewhat irregular, yet it was not to be avoided by the present plea.

*28The defendant then asked leave to file a petition to vacate or set aside the judgment, which the Court refused, and gave judgment that *Enoch Dozier*have execution against the proper goods and chattels of Simmons, in the hands of the defendants, whereupon defendants appealed.

*L. Martin,*for defendants.

1. I contend in this case, that the present plaintiff was a defendant only in the whole of the proceedings to which this suit refers; and that being a defendant, he is not entitled to a judgment or decree until he files a cross bill; because no party can recover of another, otherwise than according to the allegations in their complaint and proof of the facts alleged.

2. That the matters in controversy, on which the plaintiff obtained the *certiorari,*were wholly between the petitioners and himself, the said *Simmons*not being a petitioner.

3. That the matters referred to the arbitrators were wholly between the present plaintiff and the petitioners; and that the award did not, nor could not, effect *Simmons*at all; *Simmons*not being, as to the points referred, a party litigant.

4. That *Simmons*was never made a party to the proceedings by *certiorari,*and had no interest in the matters controverted in it.

5. That there were *two fufas,*issued to make the money on the award; and that although the first was returned nothing to be found, yet the second one, issued for the same purpose, was set aside for irregularity, as appears on the record; and, therefore, could not lay a foundation for the *sci. fa.*in the present suit.

6. There was no such record as is recited in the *set. fa.*on which to found the judgment rendered by the Court.

7. That when the plaintiff proceeds to recover by petition or bill in equity, then the defendants can show all feats necessary to their defence; but if he is allowed to *29proceed on the award, which the defendants contend does not bind them, then the defendants are estopped by the award to contest the validity of the plaintiff’s claim.

Hah., Judge. —

I think the circumstances under which this judgment was entered, were as favorable to both parties, and answered the ends of justice between them, as well as if the person to whom the judgment was confessed had been one of the petitioners. ’Tis true he was a defendant in the original proceedings; but the subject matter of the petition had, by consent, been referred, and when the award was returned, the present defendant’s intestate agreed that judgment should be entered against him for the amount awarded in his favor, and no objection was made by any of the parties interested in the distribution of the estate. I can see no objection to the judgment, more than if it had been confessed by the defendant in a more formal manner at any other time. If the present defendant has any plea to enter in his representative character, he might have done so on the return of the *scire facias;*but I think he is bound by the judgment confessed by his intestate, and that the judgment of the Superior Court should be affirmed.

The other Judges assenting,

Judgment aeeirmed.