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

lo'oS potcTlC tnat the exec JtOr had was.
tied the goods, then TO levy de Lonis
propriis. And this we are told CONT
!nued to be the practice of the kings
bench until the fine of Charles the
/ hrst; bYt In the common pleas prac.
tice had prevailed in earls times upon
/ a suggestion in the special writ Of Geri
facias Of devastavit by the executor,
to direct the sheriff to inquire by iu-
Try whether the executor had wasted
the goods, and if the jury found he
had, then a scire facias was sued out a.
gaiust him; and, unless he made a
good defence thereto, execution was
|awarded de bonis propriis, which prac-
tlce was, about the time Of Charles
ithe hrst, recommended by the court of
I Kings bench to be adopted in that
court likewise. 1t afterwards became
the practice efboth courts, Tor the sake
ot expedition, to incorporate the fieri
lfacias, Inquiry and scre facias into one
writ, thence called a scirc feri inquiry.
This writ recites the feri facias de
bonis testatoris sued out on the iudg.
menr against the executor, the return
OF nulla bona by the sheriff and then
suggesting that the executor had sold
and converted the goods of the tesla
tor to the value of the debt and dam.
ages recovered, commands the sheriff
TO levy the said debt and damages OF
the goods OF the testator in the hands
of the executor, if they could be levi
ed thereof; but, if it should appear to
him by the inquis tion OF jury tina,
the executor had wasted the goods OF
the testator, then the sheriff is to warn
the executor to appear, &c. ee Lilly's
Ent; 664, 666.1 And if the sheriff o.
mits to give notice to the defendant Of
the time the writ is to be executed, the
inquisition may be set aside for tina,
Gauge. r. Id Raym: 1882. Seed ".
Layner: 1. Strange. 62s. S. CT And
this practice we are told is still fire.
quensly adopted in England :. bat in
this country no case of the kind has
occurred within my own experience.
But the most usual mode of proceed
ling even in England i, by action oil
4 debt upon the judgment, suggesting {
]devastavit /; which we are told was
substituted in lieu of the proceeding
by scire 6eri inquiry, r. Id Rayn's !:
974. The foundation of this action
is a judgment obtained against the ex.
ecutor. A judgment against an ex.
ecutor or administrator whether by
default, THAT is, by neglect after an
/ appearance, for in England, no judg.
ment can be in personal action with
out appearance II Lid Raym. $40. 8.
J Blac: Com: SIC, or upon demurrer /;
/ or upon verdict on any plea, pleaded
by the executor, except plene admi-
nlstravit, or admitting asses to such a
sum, etrien ultra, is in England, [and
perhaps in this country before the act
OF 1860. Fl conclusive upon him
that he has assets to satisfy such judg-
ment: But our act of 1892, 90 sect.
! 33, II Rev. Code pa. 1861 declares,
that no security for any executor or
administrator shall be chargeabl= be.
Iyond the assets of the testator or intes.
tate, by reason of any omission or mis-.
take in pleading or false pleading OF
such executor or administrator. The
effect OF this provision as it relates to
the securities / shall consider hereaf.
ter. Indeed, if the executor or admit
nistrator plead either general or spe-
cial plene Administrative it is now held
that he is only liable to the amount OF
the assets proved to be in his hands,
lI2. Wash. SOP Booth Armstrong i
though the case was formerly taken to
be, that if any assets, however small,
were proved to be unadministered, the
plaintiff was entitled to recover his
whole demand from the executor so
That now a judgment against an exc
cutor on verdict upon plene admiuis-
travit is only an admission OF as sets to
the extent of assets which may be
proved to be in his hands. If there
= fore upon a fieri facias de bonis tesla
,toris on Judgment obtained agains;
an executor by either of the ways a.
bove mentioned, either no goods can
be found, which were the testa.or's, or
not sufficient to satisfy the demand OF
which is the same thing,] if the exc
cutor will not expose them to the exc.
cution; that is evidence Of devasta.
viz Aud the Enoiish alithorities in oe.