Newbern,

September Term, 1796.

#### BORDEN versus NASH’s ADMINISTRATOR de bonis non.

THE defendant omitted to plead plene administravit, and judgment being obtained, the plaintiff took out an execution de bonis testatores. On nulla bona being returned, he took out an execution de bonis propriis.

The defendant prayed and obtained a writ of supersedeas quia erronice emanavit to the last execution. And

At this term Slade and Graham, for the plaintiff,

moved to have the supersedeas set aside.

Martin for the defendant,

contended that the execution had irregularly issued de bonis propriis, before a devastavit had been returned—and cited 1 Morgan’s Vade Mecum 210, 211.

Stone, J.

The practice is generally so said down in the books, and the authorities are all that way; but the courts in this country have taken a shorter road—and whenever the defendant does not plead plene administravit, they have always permitted the plaintiff on nulla bona being returned on the execution the bonis testatoris, to levy the debt de bonis propriis, without waiting for the return of a devastavit.

M’Coy, J.

concurring,

The supersedeas was set aside.