Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1810-05-15
fta IL Gents Siaglel

sueoevastavit--ot which fact the iudguens
snd sherih's retur OF nulla benz testatoris
re almost conclusive evidence land the
'uugment VIII be against the defendant de
'on's Propriis. The mode Of proceeding
IS iumaterial, It is said. because the execu'
tor is entitled to the same defence in am
ac,'on OF debt upon the judgment suggesting
aevastavit, as in the proceeding BY scire
neri inquiry The ussal course in an &C
ZION OF ueot, -, first to sue out feri "a.
Icias upon the Judgment Obtained against the
executor, and, upon the sheriffss return of
nuia bona, to bring the action and
s'ate IN the declaration the iudgmen..
ne writ and return=and, on the triai
70 give In evidence the judgment, the 6eri
isc'as, and the return, to prove, the case
mere are Certain rules equally applicable
10 the proceeding by scire fieri ina uiry-
ana go the action of deb, IN deyas.avit !;
| Inc return of a devastavit by the
snerins on the execution issued upon the
nrst Judgment against the executor, il nor
conclusive, and therefore the executor NAV
traverse the devastavit, whether il be
| lound by the inquisitioh, or returned by
tae snerih The form of traverse is indeed
uinerent. In the scire 6eri inquiry tue
executor precisely, and expressly denies
inc devastavit found by thei inqa s;t,on, 6
IaKes issue upon it, Gsee, L, Saund: sos !.
II
ou', IN an action of debt, the whole may be
gwen In evidence on milaebet, RI. Saund
zis Id kaym 1902, or on nut guilty,
1. oa.k. Sl4s 2. Lid Raym 1889 L.
| Term Rep. 46a.
2diy. The executor cannot. in Ell
Their case plead plene administrative,
or any other plea of the sane nature,
which puts his defence upon want Of
assets unless the first judgment were
OF assets in future or the declaration
IN the second action should suggest a
| devastavit OF assets which had accru-
cd alter the judgment declared upon /;
In both which cases such pleas have
been held admissible Gsee 6, T.
Mara Quin; and Wash. 1877, Raf-
IN Pend.eton 2ull Nj: Pri: f6o
Taylor Holman and Robins The
reason is that such plea Except in the
cases just mentionedl would be con.
srary to what is admitted by the judg.
nent In the first action. And, IL the
ruth were, that the executor had no
assets he should have setit up as de-
tencs to the original action, which f,a-
wing neglected to do, he shall rot be
tPernitted TO say so afterwards. For
1t IS general rule, thatif party do
net avail himself of the opportunity
OF pleading matter in bar to the origi-,
nal action, he cannot afterwards plead
1T, either in another action founded
on it or in scire facias: And, If he
did plead plenc administrative TO the
Original action, and the Judgment was
had upon verdict, finding that he
had assets sufficient to satisfy the debt.
he is OF course equally concluded from
saying thar he had no assets. But, If
tie verdict in the original action do
not Ind, upon the plea ofplene adj
minitraviE, that there are assets
sufficient to pay the debt; or If it do
not find the value of the goods in the
hands of the defendant, if not suTici-
ent to satisfy the plaintiffs demand.
as such verdict would be uncertain
aud insufficient upon the issue Joined,
the Judgment founded upon il, may be
reversed for error. r. Wash. 500
Booth Armstrong. Aud for the
same reason that the executor cannot
plead the wsat of assets 1exccpt in
the cases above mentioned1 he capnos
lgive In evidence the want of assets on
che trial of the devastavit, either in
the scire fieri inquiry or in the action
ON the devastavir; nor even upon a
writ OF inquiry after Judgment by de-
fault in the original action, according
to the practice in Eagland. Sec. /
Saund: 219note 8. Wheatly Lane.
IN which the edito sergeant Williams.
mas given most copious and sa,isfac.
tory view ofihis subjec,.
Such appears to be the modern
course ofproceeding against ga execa-
Tor, in England, in order TO chsrg.
him personally for devastavit; aud
such the course by which he nav de-
lend himself against She charge !.
and in my opinion they will jusufg-
what Is reported to have been SAID by
the court, Wash: SO saa executor
shall not be presumed guil.y Of =
devastavit till it is found agsiass hin
by verdict The action of dets
ipon the FIRST judgment, is the CLEAR
sst, simplest, and most ueexcep.i~
Enable course of proceeding, because
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