Circuit Court of the United States.

Raleigh,

December, 1805.

#### Teasdale vs. the administrators of Branton.

HP HE HE was a verdict against the administrator upon the plea of fully administered,—-Judgments, fee. Execudon issued, and was returned nulla bona. This set. fa. issued to shew cause why the plaintiff should not have judgment to be levied de bonis t-ropriis, The defendant pleaded ?ml tiel record, no devasUedt returned or found.-—Judgments. Replication to the plea oí ¡tul fiel record, and demurrer to the other pleas. The record produced shewed the verdict, no judgment had been regulasrlv entered. The so. fa. after stating the verdict, went on and stated, that judgment was rendered accordingly

Per curiam.

We must presume according to the loose practice of this state, that there was a judgment entered pursuant to the verdict, and therefore we must say there is such a record»— As to the demurrer, for that no devastavit is returned or found s to be sure by the English practice, no set. fa. lies against the executor, to subject him de bonis propriis, till a devastavit is found upon a scire fieri enquiry, and returned. An action of debt, however, will lie upon suggestion of a devastavit, and the practice in this state has been to issue a set. fa. upon such suggestion. And as every defence can be made to the sci. fiu which could be. nude to the action, there can be no good reason for adjudging the set. fa. improper. If the sci.fa. here he considered In lieu of scire fieri enquiry in England, it posser-ces advantages far above the English mode; for here it is to be executed in court, and under the direction of the court; whereas the other is is the county before a jury. With respect to the demurrer to the plea of judgments and no assets ultra, that was pleaded in the original suit; hut the defendants counsel say a replication thereto, denying the judgments, is nul tiel record; and. the record shews that the jury said there were no such judgments : therefore the plea has not been tried, and if so, no judgment can be presumed ; for the court ought not to enter judgment when any one plea remains untried. The answer is, the *378replication may be either mil tiel record, or assets ultra, nr per fraudom, or other matter oí fact; and such replications was pro-peily triable by jury: and an irregularity committed by the clerk, in entering the verdict, will not raise a presumption that the judgment was not given upon the verdict. If there was such a judgment, that estops the defendant from using any plea which he did or might have pleaded prior to that judgment. The demurrer therefore must be allowed.