#### R. J. and R. W. McDOWELL, Administrator vs. D. ASBURY et al, Executors.

1. After a judgment fixing an executor with assets, and a return of an execution issued thereon nulla bona, the proper mode to subject such executor person Ally, is by motion founded on notice and not by civil action.

•2. Writs of scire facias consisted of two classes, the object of thefirst class being to remedy defects in, »r to continue an action ; that of the second class to commence some proceeding.

'■%. Proceedings in the nature of a sai. fa. of the first class, are almost indespen-sable in the administration of justice, and the object of the Code was merely to abolish the name and form of waits of this class, and simplify the process into a notice or summons, to show cause why further proceedings should not be had to provide further relies, in matters where parties had had a day in Court, &e., and not to effect the substance of the remedy.

4. On such motion, the-Judge may allow the defendant to make any defence which he could havo availed himself of under the old seieri facias proceed-

*445 •%. The form of pleading and practice to be pjirsued in order to subjact exeeu" tors and administrators personally, under tbe former system, elucidated by Dick, 3.

Tbe eases of Binford v. Alston, 4 Dev. 85>1. Manny. Blount, 05 N. C. R. 9!). Mason v. Miles, 63 N. C. R. 564, and Jones v. Qupton, 65 N. G. R. 48, cited and approved.

This was a motion for an execution de bonis propriis on notice, heard and determined by His Honor Judge Moore, at July Term 1871, of Mecklenburg Superior Court.

The plaintifls had theretofore received a judgment against the defendants as executors, fixing them with assets and caused' an execution de bonis testatoris to issue, which had been returned nulla bona.

.Thereupon this motion was made, which His Honor declined to grant, on the ground that the proper remedy was by a. civil action.

The plaintiff from this ruling of His Honor appealed.

H. Barringer for appellant,

J. IT. Wilson for appellee.

Dirac. J,

The administrator withdrew his plea of “fully administered,” and allowed judgment to be entered against him for the debt of his intestate. This judgment fixed him with assets, and an execution was issued agd returned nulla bona, &e. The plaintiff after giving notice to the administrator, to make a motion before His Honor for an execution de bonis propriis.

The motion was refused on the ground that a civil action was the proper remedy. In such cases the (D. C. P. has provided no specific remedy, and we must consider the general scope and purpose of the Code on determining whether or not the ruling of His Honor was correct.

In examining this question we will first enquire briefly into the remedies at common law, against an executor or administrator, when he has made himself liable de bonis propriis*

*446A personal representation is required to act honestly and faithfully in the discharge ot his trust, and he is liable only so far as he has assets, or might have had them by reasonable diligence, unles he subjebt himself to liability by his own act. When a personal representative is sued he must protect himself by proper pleading. If he plead any false plea in bar of the action, such as ne unguis exeeutor, or a release to himself, and rests his defence only on such plea, and the issue be decided against him, the judgment in the first instance must be de bonis testatóris si non de bonis propriis, for it is falsity which falls within his own knowledge. Where he puts in pleas which tend to defeat the plaintiff’s sause of action, and which may not be false within his own knowledge,'as non assumpsit, or a release to the intestate; and at the same time pleadsyiien# administravit, the plaintiff may take a judgment guando as to the latter plea, and join issue oh the former, and if he obtain a verdict he can have an execution for costs agaists the defendant de bonis propriis.

If, however, in either of the above cases the plea oiplene ad-ministravit is put in, .and issue is joined as to all the pleas, and the latter plea is found in his favor, he is entitled to a general judgment with costs, although the other issues are found against him. Willims on Ex’r. 1389. When a personal representative was fixed with assets by a judgment and the assets could not be obtained by an ordinary execution, several modes were formerly in use in England to subject him personally. In the Court of Kings Bench in former times, the usual practice upon the return of nulla bona testatóris was to sue out a special writ oí fieri facias against the assets with a clause suggesting a devastavit and if no goods of the testator are found then it could be levied de bonis propris.

The practice m u^e Common Pleas was to issue a special fieri facias, suggesting a devastavit, with a clause, directing the sheriff to enquire by a jury as to what had become of the assets, and if they found a devastavit by the executor, then a *447 scire facias was issued to the executor, to show cause why a fieri facias de bonis propriis, should be awarded against him.

In process of time, the practice of the two courts was made Uniform by joining the special fiere facias injury with the scire facias, into one writ, called the scire fieri inquiry, from the first words of the two writs which were thus incorporated.

This writ fell into disuse in England, as the plaintiff was not entitled to costs, unless the defendant appeared and plead to the writ. The usual proceeding in such cases is an action of debt on the judgment, suggesting a devastavit. 1 Saund. R., 219, notes.

This .last named remedy was formerly used in this State, but the scire fieri enquiry was never adopted. In former times in some parts of the State, the special fieri facias once used in the King’s Bench, was resorted to, but in the case of Hunter v. Hunter, N. C. T. Reports, 122, the more simple and expeditious process of scire facias was prescribed as the proper remedy in such cases.

A scire facias on a judgment, is not a new action, but is only issued as a continuation of the former suit. Binford v. Alston, 4 Dev., 351, 2 Tidd, 983.

When the object is to obtain an execution on a judgment it it is properly called a writ of execution. 2 Tidd, title sci fa.

In some cases a scire facias is an execution as the defendant may plead to it, but he cannot deny the merits of the judgment upon which it is founded. Thus on a sci. fa. upon a judgment against an administrator, fixing him with assets he would not be allowed to plead plene admvnistravit, or any other plea of the same nature, which puts his defence upon a want of assets. 1 Saund. R., 219.

The scire facias when used under the old system for the purpose of obtaining an execution de bonis projjriis, on a judgment against an administrator, although it was styled a judicial writ, was nothing more than a notice to show cause why an execution should not issue.

*448The C. C. P., merely abolished the form, and did nof effect the substance of the remedy. The plaintiff in this case gave-notice to the defendants that he would make a motion in the cause, in term time .for an execution de bonis jpropriis, etc.. The Judge under the liberal provision of the C. C. P., might have allowed the defendant to make any defence which he-could have availed himself of under the old scire facias proceeding. The plaintiff cannot obtain a direct and speedy remedy on his judgment in any other way than the one-which he has adopted. A civil action cannot be brought on a judgment without leave of "the Court, for good cause shown-upon notice to the adverse party. C. C. P., sec. 14. „

This leave could not be allowed as this Court has often decided that an action cannot be entertained which seeks no other relief than that which can be had in a case then pending. Mann v. Blount, 65 N. C., 99, Mason v. Miles, 63 N. C., 564.

The Code has abolished the writ of scire facias, C. C. P., sec. 362, but this section does not require a civil action to be-brought to obtain a remedy in cases.like the one we are now considering.

There were two forms and purposes of writs of scirefncias? at common law,.

1. A writ which was used to remedy defects, or as a continuation of some former suit.

2. A writ in the nature of an uiiginal writ, used to com-, menee some proceeding.

The Code does not apply to the former, but only to the latter kind. This distinction is shown in many provisions of the-Code.

Under the old system writs- of scifa of the first class were used to prevent abatement of suits, and remedy defects arising., by a change of parties, etc. Under the Code the objects are accomplished by a motion in the case. C. C. P., 54.

After a lapse of three years from the entry of judgment an execution can be issued only on. motion,.with notice to the- ad-*449verse party. C. C. P., 256. Formerly a sei fa was used to obtain an execution on a dormant judgment. In the case of the death of a judgment debtor, his personal representative-must be summoned to show, cause why the judgment shall not be enforced. C. C. P., 319.

Other instances of a similar character might be given to show that it was not the purpose of the Code to require a civil action tobe brought to obtain relief in cases where it was formerly furnished by a writ oisci fa of tie first class above mentioned.

We will now refer to some of the writs of the second class-At eommon law a writ of sciri facias to repeal letters ‘ patent is an original writ issuing out of Chancery. Under the Code a civil action must now be brought for that purpose. See. 367.

A writ oisci fa to subject bail was an original proceeding, and in such a case the Code requires a civil action to brought. Sec. 160.

A scifa to enforce an amercement against a Sheriff was bs> nature of an orignal writ, and now a civil action is required..

Jones v. Gupton, 65 N. C. 48, proceedings in the nature of writs of scire facias of the first class, are almost indispensible, in the administration of justice. The Code only intended to-abolish the name and form and simplify the process into a notice or summons to show canse why further proceeding should-' not be had nndto furnish further relief in matters whore the parties had had a day in Court.

If these objects could only be obtained by civil actions, the-costs oflegal proceedings would become burdensome and the consequent delay would almost amount to a denial of justice.

There was error in the ruling of His Honor. Let this be.* certified to the end that proper proceedings may be had in the cause.

Per Curiam. Error.