#### Joseph Lewis, Chairman, &c. on the relation of Nathaniel Smith ex’r of Nathan Smith, v. Levi Fagan & Josiah Flower adm’rs of Joseph Webb,

^•From Washing ton.

A scire facias is a proper remedy against an administrator, to revive an unsatisfied judgment against his intestate.

An action on an administration bond may be sustained, without a pre. vious judgment against the administrator for a devastavit.

The word debts in the act of 1789, relating to joint obligations fJRev.. c. 314) includes judgments therefore, the remedy upon a judgment against several, will survive against their personal representatives.

Where A, as the agent of B, received money from C, to pay B, and neglected to do so, C upon paying Bin full,' has no right, without a specific application, to offer these facts, as an evidence of the payment of another debt due from him, in which A, the agent, is beneficially interested.

Debt upon an administration bond, executed by the intestate of the Defendants, as the surety of one William B. Harramond, as administrator of one Benjamin Fes-senden. The breach assigned was, that Harramond had not paid a judgment, which the testator of the relator had obtained against both Fessenden and Harramond, in the lifetime of the former for $1350 50.

*299After oyer, the Defendants pleaded, 1. Mon est factum testatoris. 2. Payment., 3. Set-off. 4. Performance of the condition of the bond by Harmmond, the administrator. 5. That the judgment against Harramond, as ad. ministratoi' of Fessenden, was obtained by fraud.

June, 1830.

Issue was taken on all the above pleas by the Plaintiff» and the cause was tried before bis Honor. Judge Danikü, on the Fall Circuit of 1829. The Plaintiff having fixed Harramond with assets of Fessenden, to prove the breach' as assigned, produced a certified copy of the record of a judgment obtained in Craven Superior Court, against both Harramond and Fessenden, in the lifetime of the latter, by the testator of the relator; and also the record of a sdre facias on that judgment brought by the relator» in which the deaih of his testator and of Fessenden was suggested, and whereby the relator sought to have execution, as well against the goods of Harramond, as against those of Fessenden, in his hands. On the return of this scire facias, there, being no plea by Harramond, the entry was, “ final judgment by default, according to the said writ of sdre facias.”

The defence in the Court below was very discursive» but it is unnecessary to present any but the following. The Defendants proved, that the judgment against Harra-monel had been assigned to Thos.Cox, and that Cox was also tiie agent of David Clarke, in the collection of a judgment in his,Clarke’s favor against Harramond, as administrator of Fessenden, for 583 dollars ; that Harramond bad sold to Cox a negro, the property of Fessenden, in Iris lifetime, for 245 dollars, which Cox undertook to apply to the judgment in favor of Clarke. The execution on this judgment was produced, from which it appeared that no. credit for that sum was given, but the whole of the judgment had been satisfied by a sale of the assets of Fessen-den, in the hands of Harramond. The Defendants contended, that, under these circumstances, the price of the *300negro (345 dollars) should be applied to the satisfaction of the judgment in favor of the relator.

The Jury, under the direction of the presiding Judge, re^upne(j a verdict for the Plaintiff, and the Defendants appealed.

Gaston, for the Defendants,

contended 1st, that the judgment against Harramond and Fessenden, did not survive against the latter — a judgment not being within the words of the acts of 1789 and 1797 (Uev. c. 314 & 475). •

Sd. That there was no judgment against Harramond, as administrator of Fessenden, no suit having been brought upon the first judgment, but merely a revival obtained by the sá. fa. and that the entry “judgment according to sd. fa.” did not import a judgment against Harramond, as administrator of Fessenden, but only that Smith should have execution on his prior judgment.

Badger, contra.

Ruffin. Judge.

Several objections are made to the recovery effected in this case, none of which, I think, are tenable. The first, is, that there was no judgment against Harramond, as administrator of Fessenden; for that he was not sued on the judgment obtained against Fessenden in his lifetime, but only made a party to it by sd.fa. in which the judgment is, quod habeat eocecutionem, atul not quod recuperet. The answer is, that in effect it is precisely the same thing. For by a judgment of recovery, what is recovered but the debt, to be levied of the goods of the intestate in the hands of the administrator ? Upon the sd.fa. the same execution goes. But it cannot go in either case, until the administrator has been made a party, so as to have an opportunity of showing that there are no assets in his hands, against which the Plaintiff ought to have execution. The administrator can plead plene administraron in both cases ; for that would be a sufficient cause why the party should not have the recovery or execution. This Is the uniform course upon all *301writs of sci.fa. to make the executor a party to a judgment against the testator (Noel v. Nelson, 2 Saund. 219. note 2). And if he fail to plead fully administered, the executor is concluded as to assets. (Rock v. Leighton, 1 Salk. 310. Farker v. Stevens, 1 Hay. 218.) There is therefore a judgment against the assets of the intestate, or which an action could be brought against Harramond for a devastavit. This suit on the administration bond may be sustained, without a previous judgment against the administrator in debt, ‘for the devastavit. (Williams v. Hicks, 1 Murp. 437. Washington v. Hunt, ante vol. 1, 475.)

Another objection is, that the debt did not survive against Fessenden, and therefore that there ought not to have been judgment against his administrator for it; and so the sureties are not bound. And to obviate the consequence of a judgment being in fact so rendered, and its remaining good until reversal, it is said that here is no judgment — for the judgment is “ according to sd.fa,” after our loose practice, which means such a judgment as ought to have been rendered. This last is a minor point, and it is not necessary to say what is the import of the entry ; though we suppose it to mean “ according to the prayer oí the sd. fa.” which is a judgment against both. If it is so to be understood, it would seem to be conclusive, not of the assets, but of the debt, as against the sureties. (Washington v. Hunt, uh supra.J Other creditors or distributees have an interest to contest the debt, and it is open to them ; but the sureties have none. Their sole concern is wit!» the assets. They are liable only for a due accounting for them, and they shall have an opportunity of showing, that the administrator had none; but if he has assets, to them it is not material whether they are paid to this or that creditor, unless they can show that the debt wad,re-, covered by fraud, which is to injure them by making them answer over.

*302jj? fhjg was oppii to the Defendants in this case, they have m>t ava’^ themselves of it; for they have not put the fraud in issue ; winch ought to be by special plea, g¡vjns, tj1P Plaintiff notice.

The general question, whether judgments against two survive, upon the death of one Defendant, against his executor, is of more consequence, and has been much considered by the. Court. The actof 1789 (Rev. c. 314, s. 4) it is true, does not, in so many words, embrace judgments. ft is, altogether, inaccurately penned. And it was seriously debated several times, whether in the case of obligations, a joint suit could be maintained against the surviving obligor, and the executor of a dead one — it being contended, tiiat a several action survived against each. But the Courts considering it a remedial law, and putting a.fair construction on it, held affirmatively. (Brown v. Clary, 1 Hay. 107. Davis v. Wilkinson, 1 Hay. 334.) This was followed by the act of 1797 fRrv. c. 475) directing how the judgment should be entered in such joint suit, and permitting the creditor to treat the contract as both joint and several in the same suit.— These legislative and judicial proceedings show, that it is the policy of tiie authorities of the country, to extend the principle of the act of 1789, as far as will completely remedy the evils at common law, both for the benefit of the creditor and the surviving debtor. To show how little the writer of the statute had considered the subject, it is only necessary to remark, that in the preamble, he adverts huí to the single rule of the common law, by which a surviving “ obligor’5 was oppressed and injured by becoming the sole debtor; yet afterwards it hs enacted, that the joint “ debt or contract” shall survive, and that all joint obligations and assumptions of copartners and others, shall he joint and several. It seems to us to lie the .Spirit of this act, that all debts, however due, should survive. There seems to be no reason for the exception of a judgment. If a bond is in suit against two, and one *303die, the executor may be brought in. Why not also after judgment? So, if upon a,joint bond, a judgment be recovered against one of the obligors, and he. die, that judgment may be enforced against his executor, and at‘ the same time suit brought on the bond against the surviving obligor. Or, if several judgments be rendered against both obligors, and both die, the executor of each will be liable. We can perceive no possible reason, why in the case of a joint judgment, it should not be so likewise. We think this a fair construction of the statute, and we know it is the one long acted on; for we are not apprized of a single instance, in which a creditor has fded his bill to reach the estate of the deceased Defendant, though in numerous cases the survivor must have been insolvent, and the debt been paid by the executor of the dead Defendant.

There is nothing in the point made upon Cox’s receipt of the money. If he did receive it, it was as agent of Clarke ; and if he has not applied it to Clarke’s debt, it has never been applied to this by Harramond, who alone could do it.

Per Curiam.- — Let the judgment below be affirmed.