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MCCUTCHEN and wife against NIGII and others.


If the defendants plead payment with leave, and go into an equitable defence, the plaintiff may, under the replication of non solvit, give evidence of other special matter to rebut the defendant's equity.

ERROR to the Court of Common Pleas of Franklin county.

This was a scire facias on a recognizance entered into by the defendants below, the defendants in error, John Nigh, Alexander McCutchen, and John Brotherton, under a decree of the Orphan's Court, conditioned for the payment of a sum of money to Polly, the wife of A. McCutchen, who were the plaintiffs below, and plaintiffs in error. In this recognizance John Nigh, one of the defendants, was the principal, having taken a tract of land, part of the estate of his father John Nigh, deceased, at a valuation, made by order of the Orphans' Court. The defendants pleaded payment, with leave to give the special matter in evidence; to which the plaintiffs replied non payment, and thereupon issue was joined.

On the trial of the cause, the defendants, under the plea of payment with leave, &c. gave evidence, that John Nigh had paid certain sums of money, which were levied on the land taken by him under the authority of the Orphans' Court; upon which the plaintiffs offered to show, that before the said John Nigh had taken the land under the decree of the court, he had been in possession of it, and received from the rents and profits a sum sufficient to discharge the liens. This evidence being objected to by the defendants, and rejected by the court, the plaintiffs took a bill of exceptions. The jury gave a verdict for the defendants, and judgment was rendered


Dunlop, for the plaintiffs in error, now contended, that the court below erred in rejecting the testimony offered by the plaintiffs, because, as the defendants had been let into an equitable defence by the plea of payment, the plaintiffs should have been permitted to show in reply, an equity arising in their favour by the defendants receipt of profits from the land sufficient to pay the liens.

Denny and Chambers, contra, supported the decision of the court below. The evidence offered, introduced a new cause of ac

(M'Cutchen and wife v. Nigh and others.)

tion, of which the plaintiff had no notice: he was taken by surprise. If an action had been brought against J. Nigh for the profits of the land, he could have shown that he had accounted for them.

Dunlop, in reply. The nature of the pleadings precluded the plaintiffs from setting out the special matter on which their equity was grounded. There is no instance of a special replication to the plea of payment; an issue on it opens the whole equity of the case. The defendants might have pleaded specially, and not having done so, they have no cause to complain of surprise. If the heirs were driven to an action for the rents and profits, the defendants might bar them by pleading the statute of limitations.

The opinion of the court was delivered by

TILGHMAN, C. J. (After stating the case.) In order to decide the case upon its merits, it was necessary that the evidence offered by the plaintiff should have been received. For nothing could be more unjust, than that John Nigh should have an allowance for the discharge of liens, without accounting for money received by him which ought to have been applied to the payment of those liens. The only plausible reason for rejecting the evidence, is, that it was a surprize on the defendants. But if it was so, it was a surprize occasioned by the form of pleading which the defendants thought proper to adopt. To the plea of payment, the plaintiffs could make no other replication than non-payment. Then when the defendants availing themselves of the rule of court, by which they were permitted to make an equitable defence under the general plea of payment with leave, &c. gave evidence of special matter, in order to show that they ought to be discharged of part of the money which they had bound themselves to pay, the plaintiffs were certainly at liberty to rebut that equity, by other special matter on their part. They were not estopped by the forms of pleading. They had joined the issue in the usual manner. And where issue has been thus joined, the practice has always been, to permit the plaintiff to rebut the defendant's special matter, by other special matters on his part. The defence inthis case was altogether equitable; because the defendants had bound themselves absolutely to pay the money. There was nothing in the condition of the recognizance, which let them in to an allowance for the payment of liens. Now suppose judgment had been obtained on the recognizance at law, and the defendants had filed a bill in equity for an allowance, to the amount of the incumbrances paid by them, there is no doubt that the chancellor would have ordered them to account for those profits which ought to have been applied to the discharge of the incumbrances. And as we have no chancery, we should have sustained a plea to this scire faicas, setting forth the payment of the incumbrance and claiming an allowance for their amount; to which plea the plaintiffs would have been permitted to make a replication, stating any special matter which showed that the defendants were not entitled to the allowance claimed by them. In the present case, for instance, 2 X


(M'Cutchen and wife v. Nigh and others.)

the plaintiffs might have replied that though the defendants did pay the incumbrance, yet they were not entitled to any allowance, because they had received rents and profits sufficient for their discharge. To this replication, the defendants might have made such a rejoinder as their case required, and then, the parties would have gone to trial upon some certain point, without a possibility of surprize. But it is not for the defendants, who, for their own convenience put in a plea which led to uncertainty, to urge that uncertainty as a reason for cutting off the plaintiffs from the evidence on which their case depended. I am very sensible that this evidence of the plaintiffs might have been a surprize on the defendants, but it was a surprize which they might have prevented by pleading specially, and it is much to be wished that this consideration would induce the gentlemen of the bar to be more special in their pleadings. The plea of payment, with leave, &c. to be sure, is tempting, because it saves a great deal of trouble in the first instance; but I have no doubt, that the attorney who would undergo the labour of stating his defence in a special plea, would be richly rewarded by the ease and certainty with which he would try his cause. Under the pleadings in the present case, I am of opinion, that the evidence offered by the plaintiffs, ought to have been admitted; and therefore the judgment should be reversed, and a venire de novo awarded.

Judgment reversed and a venire facias de novo awarded.


HUSSEY against WHITE and another.


Confession of judgment generally de bonis in an action against an executor or administrator, is not conclusive proof in this state, of the existence of assets, in a suit suggesting a devastavit, but the existence of assets must be proved by evidence aliunde.

By the bill of exceptions which accompanied this writ of error to the Court of Common Pleas of Franklin county, it appeared, that this was an action of debt brought by Asahel Hussey, the plaintiff, against John White, and Charles White, defendants, on a former judgment recovered in that court by the same plaintiffs against the same defendants, as executors of Samuel White, deceased. The suit on which the former judgment was recovered, was an amicable action of debt, in which, by consent, judgment was enter for the plaintiffs, for 334 dollars 74 cents, de bonis. A fi. fa. was issued thereon, and returned nulla bona. The plaintiff prayed the court to instruct the jury, that this evidence entitled him to recover: but the court charged, that by their practice a judg

(Hussey v. White and another.)

ment de bonis means de bonis testatoris, and negatives the presump tion of any personal charge against the executors, and, whatever was the law of England, their practice would warrant the inference, that the understanding of the parties was, not to admit assets, but the contrary. The judgment and return of nulla bona were not, therefore, evidence of a devastavit, and the plaintiff's claim was not supported. To this charge the plaintiff excepted.

M'Cullough, for the plaintiff in error, relied on the settled principle of the English law, that a judgment de bonis testatoris is an admission of assets.

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Chambers, contra, argued on the common understanding here, that assets are not admitted by such a judgment. The debt is confessed by it, and the plaintiff may levy on lands, or on any goods that he can find, and if there are no goods, he may bring an action suggesting a devastavit, and prove it if he can He referred to Toller on Ex. 463, 464. M'Cormick v. Meason, 1 Serg. & Rawle,


The opinion of the court was delivered by

GIBSON, J. The question at the trial was, whether a confession of judgment de bonis entered in an amicable action against executors, is an admission of assets and conclusive in an action of debt on the judgment suggesting a devastavit; and the court was of opinion that it was not. By the English common law a judgment in this form is conclusive in all cases: but in this state it is certain that such judgments have been confessed from time immemorial where the object was to subject the assets to execution without subjecting the executor to personal liability, except for an actual devastavit by evidence aliunde. We have carefully inquired into the practice on this subject, and find it in the way I have just stated to be universal. However inconsistent with technical accuracy the use of the words in this sense may seem, there is no doubt that the parties intend by it to express their meaning to be that the assets alone shall be affected, and that to affect the executor an actual devastavit shall be proved by other evidence. According to our practice, judgment is signed by writing that word in the docket to serve as a memorandum for making up the record in form, which however is seldom if ever done; but if it were done, a general judgment against an executor not by confession, would be de bonis testatoris, or intestati, (as the case might be) according to the form of the common law; and the suffering of such a judgment would be a conclusive admission of assets. But the nature of a judgment entered by agreement must be determined by the terms of the agreement; and by adding to the usual short entry words which are obviously designed to be explanatory of what would otherwise be clear enough as a general judgment, the parties indicate that they did mean something else; which of course can be nothing but a special judgment operating on the assets without fixing the executor with personal liability. By any other construction the words

(Hussey . White and another.)

"de bonis" would be rendered inoperative, for technically speaking they are included in a judgment signed generally, and where they are superadded it must be intended that they were designed as a qualification: and if so, the nature and extent of such qualification cannot be misunderstood. How these words came to be used in a sense directly the reverse of their technical effect it is unnecessary to conjecture. It was probably because the usual short entry to which the profession were accustomed did not present to the mind's eye the full extent of its legal effect; and therefore the additional words might readily be mistaken for something not included in a judgment rendered generally. However this may be, their meaning in practice is so clearly established by the testimony of the profession in all parts of the state, that to assign to them a different meaning now would produce very disastrous consequences to the community. We are therefore of opinion, that the confession of a judgment in this form is not conclusive proof of the exist ence of assets; but that the fact must be proved by the plaintiff and by evidence independent of the judgdment.

Judgment affirmed.


MOORE for the use of MOORE, against KERR and others, surviving executors of KERR, who was surviving executor of MOORE.


If judgment be entered against an executor de bonis, execution to be levied of the lands of the deceased for a certain sum, it is to be considered as a judgment de terris and is not evidence of a devastavit against the executor, on a return of nulla bona and devastavit, where a levy has been made on lands, and part payment received.

On a writ of error to the Court of Common Pleas of Franklin county, in which court judgment was rendered for the defendants in error, the defendants below, it appeared that the present was an action of debt on a former judgment, rendered in the same court, under the following circumstances: A summons was issued in debt by the plaintiff, Nancy Moore, for the use of John Moore, against Robert Kerr, surviving executor of James Moore, in which the defendant appeared by attorney, and judgment was entered de bonis, execution to be levied of the lands of the deceased, for the sum of £181 10s. On this judgment a fi. fa. was issued for the debt, interest and costs, by virtue of which lands were levied on and condemned, and a venditioni exponas was issued. A rule was afterwards entered, by consent, to show cause, in this and two other

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