James N. and Levi Dickson, Plaintiffs, v. William H. Wilkinson, Administrator of John T. Wilkinson, deceased.
There was a judgment against an administrator of assets guando acciderint.
Upon this judgment a scire facias was issued, containing an averment that goods, chattels, and assets had come to the hands of the defendant.
.Upon this, scire facias there was a judgment by default; execution was issued,' and returned “ nulla bona.”
A scire facias was then accorded against the administrator to show cause why the plaintiffs should not have execution “de bonis propriis.”
was too late to plead that the' averment in the first scire facias did not •state that assets had come into the hands of the administrator subsequent to the judgment guando.
A judgment by default against an executor or administrator, is an admission of Assets to the extent charged in the proceeding against him.
*58If a-party fail to plead matter in bar to the original action, and judgment pass against-him, he cannot .afterwards plead it in another action founded on that, judgment; nor in a scire facias. ' „ • •
A demurrer reaches no further back than the proceedings remain in fieri, or under the control of the court.
This, case came up from the Circuit Court olf the United States for the.middle district of Tennessee, upon a certificate.of division in opinion between the judges. ’ -
All the facts which are necessary to" an understanding of-the point are stated in the certificate,,as follows::—
' The plaintiffs, at September term, 1837, with the defendant’s-consent, had a judgment of assets• quando acciderint. .On'the 2d of October, -1838, upon their suggestion of-assets come to the defend-. ant’s hands, a scire facias was accorded them to be made known to the defendant to show cause why they should not have execution of those assets. . This scire facias was issued on th&lOth of January, 1839, and after reciting the judgment quando, it contained the-following,and no other, averment of the coming of assets to the'defendant’s hands: — “And whereas, afterwards, to wit, on the 2d day of October, 1838, it was suggested to the said court, on behalf of the said plaintiffs, that goods, chattels, and assets-had come to the hands of the defendant, sufficient to satisfy.the said judgment; and it was thereupon ordered, by said court, that a scire facias issue, -and we therfeore hereby command you, &c.” This-writ was made known to the defendant, and the plaintiffs, .thereupon, by his default, at September term, 1839, had judgment of execution of the intestate’s goods .in the defendant’s hands .to be administered, if so much, and if .not, then the costs de bonis propriis.' £)nthe 9th of October, 1839‘, execution was issued accordingly, and returned to March rules, 1840, nulla bona, except as to the costs, which were levied da bonis propriis. A scire facias was now accorded' against the defendant to show cause why the plaintiffs should not have execution of their demand de bonis propriisand this writ was issued, made known to the defendant, and returned to September’ term, 1840,. when he appeared, and pleaded to it fully administered, and a-special plea, that , the insolvency of the intestate’s estate had been suggested to the proper Tennessee authority, and a bill in equity filed in a. state court.to administer hid effects according to the laws of Tennessee. To these pleas the plaintiffs demurred, and on the argument of the demurrer, the defendant’s counsel, against awarding execution de bonis propriis, showed for cause, that the judgment by default upon the first scire . facias did not establish the fact, that any goods, &c., had come to •the defendant’s hands since the judgment.of. assets quando acciderint; because the said first scire facias did not aver that goods,-&c.,.had comedo the defendant’s, jiands ánce the said judgment quando, but only that those goods had come to his hands, without saying when, and a judgment by default only admits such 'facts as are alleged’; *59thqt unless the record shpwed that assets had come to his hands since the said 'judgment qiiando, and that such assets had been - eloigned and wasted, no execution c.ould issue'against the defendant to be levied de bonis propriis. „And the counsel for the plaintiffs insisted that advantage should have been taken of the alleged defect, in the first scire facias at "the term to which it was returnable, arid returned, by plea or demurrer; that the judgment by default was a waiver of errors .in the process,- and so that the said error, if it be one, could not be reached by the demurrer. aforesaid 1
“ And upon said point; whether advantage’ could be taken of the aforesaid defective averment in the .first scire facids, upon the plain-' tiffs1 demurrer to -the defendant’s pleas to the second scire facias, the opinions of the judges are opposed. - ’
“And it is thereupon ordered, that the foregoing statement of facts, involving said point, upon which said disagreement occurs, made under the direction of the judges,-and at the request of the plaintiffs by their attorney, be certified to the Supreme Court for their opinion - upon said point, according to the' act of Congress in that case made and provided.” '
•'The case was argued by Mr. Francis Brinl'ey, for the plaintiffs,
who made the -following-points:—
1. The first scire Jactas was sufficiently accurate as to form. It avers that bn the-4th of‘September, 1837, Judgment was rendered for the plaintiffs against the assets quando acciderint. It then avers tiiát afterwards, on the 2d of October, 1838, (more than a year,) .the plaintiffs suggested that assets had come into the hands of the defen* daht, sufficient to satisfy the judgment. The two facts together .'form the .connected- proposition, that assets had come into the hands , of.the defendant, since'the.judgment quando. In the case of Platt v. Robins et ah; 1 Johns. C..276; there is no better averment; yet no objection was taken to .the form. “ Diverse goods and chattels which were of- the. intestate, to the-amount of the damages recovered, had come-to the hands-Of the defendants,” is the language in that case.
_ ’ 2. If the averment in the first scire facias be imperfect, the -objection cannot now be taken ;, ittshould have been made by plea, when that writ was returnable: The general rule is, that if a party do. not avail himself of the’ opportunity of pleading matter in bar to the original action, he" cannot . afterwards plead it, either in another action founded.on it, or in a .scire facias.. Cook v. Jones, .2 Cowper, 727; Wheatley v. Lane, 1 Saunders; 216, note 8, -by’ Williams.'
3. The-defendant cannot plead any plea to the second scire'facias .which puts his defence upon tiié want of assets; for such plea would be contrary to what is admitted by. his default in thej first scire facias: The defaults’ ah admission of assets. -Treil v, Edwards, 6 Modem; 308; Rock v.. Leighton; 1 Salk. 310; Platt v. Robins et ah, 1 Johns. Cá. 276:- Skelton v. Howling, 1 Wilson, 258; Ruggles et ah v.
*60Sherman, 14 Johns. 446; The People v. The Judges of Erie County, 4 Cowen, 446. This last case shows the practice to be to issue execution de bonis propriis, whether nulla bona or devastavit be returned by the sheriff. Iglehart v. Slate, for the use of 'Mackabin, 2 Gill & Johns. 235; Griffith v. Chew, 8 Serg. &.Rawle¿ Í7. A cognovit actionem, by. executor, is an admission of assets. Den v. De Hart, 1 Halsted, 450.
4. The point raised by the special plea is as to the effect of the proceedings in insolvency in the local court's. If the proceeding be in the nature of a commission of insolvency, thén the pendency of such commission is no bar to a seire facias against the administrator, in a judgment had against him. . Hatch v. Eustis, 1 Gall. 160.
Mr. Justice McKINLEY
delivered the opinion of the court.
This case is brought before this court upon a certificate of division of opinion of the Circuit. Court for the middle district of Tennessee.
The plaintiffs had judgment against the defendant for.$1169 88 debt, and $110 94 damages. “And it appearing to thé satisfaction of the court, by the admisáon of the plaintiffs, that no assets .of the intestate had come to thé hands of the defendant,” it was adjudged, that the plaintiffs have ‘ execution to be.levied of the goods and chattels, and assets, which might thereafter come to the hands of the defendant to be administered.” Upon this judgment afi.fa. issued to be levied of the assets of the testator, which might thereafter come to the hands of the defendant to be administered:- which fi. fa. was returned by the marshal nulla bona. On the 10th day of January-, 1839, a scire facias issued against the defendant, upon suggestion that assets of the intestate, sufficient to satisfy the judgment, had come to the hands of the defendant. Upon this scire facias there was judgment against the 'defendant by default, to be levied of the goods and chattels of the intestate, in his hands to bé administered. A f. fa. issued upon this judgment, which was also returned nulla bona.
And thereupon another scire facias issued against the defendant to have judgment against him de bonis propriis, to which he pleaded, first, plene administravit; secondly, that no assets ever came to his hands; and thirdly, that the estate of the intestate was insolvent at the time the letters of administration were granted; and that in'pursuance of the act of the General ’ Assembly in such case made and provided, he had suggested, to the clerk of the county court, the insolvency of said estate, &c. To these pleas the plaintiffs demurred, and in argument the counsel for the defendant inásted “ that the judgment by default upon the first scire facias did not establish’ the fact, that any goodsj &c., had come, to the hands of -the defendant, since the judgment'of assets quando acdderint; because the said first scire facias did not aver, that goods, &c.-, had come to the defendant’s hands since the said judgment 'quando; but only, that said *61.goods, &c., had cometo his hands, '-without sayjng when; and a, judgment by default only admits such facts as are alleged. ' That un-' less the record showed that assets had .come to his hands since the judgment guando, and that such assets had been wasted, no execution could issue against the-defendant to be levied de bmis propriis.” And the counsel for the plaintiffs iñsisted “ that the alleged' defect, 'in the first scire facias, should have been taken advantage of at the first term to which it was, returnable, by plea or demurrer;, that the judgment by default was a-waiver of errors in the process; and so the error, if it be one, eould not be' reached by the demurrer.”
“ And upon said point, whether advantage could be taken of the aforesaid defective averment , in the first scire facias, upon the plaintiffs’ demurrer to the defendant’s pleas to the second sdre facias, the opinions of the judges were opposed.” .
A sdre fadas is an action to which the defendant may plead any legal matter of defence. And in this case the .defendant might have ’ pleaded the same matter in bar to the first sdre fadas, which' he offered to plead to’the'second. ,Ot if he considered the first ¿¿fare fa* das insufficient in. law, he might have demurred to it. Having done*. neither, judgment by default was properly taken against him-. And it is well settled, that a judgment by default -against an executor, or administrator, is an admission of assets to the extent charged in the proceeding against him, whether it be by action on the original judgment or by sdre fadas. Ewing’s Executors v. Peters, 3 Term R. 685; The People v. The Judges of Erie, 4 Cowen, 446. Failing to make the money out of the assets of the intéstate, on the first • scire facias., the .plaintiffs prosecuted the second to have judgment agaipst the defendant, to be levied of his own. proper goods, &c. To this he-pleaded the three pleas before mentioned.
It is a universal rule of law, that if .the party fail to plead matter in ' bar to the original"action, and judgment pass against him, that he cannot afterwards plead it in another action founded on that judgment; nor'in a scire facias., (see the authorities above cited.) The demurrer of the plaintiffs to the defendant’s pleas was, therefore, well taken. And although either party may¿ orí a demurrer, take advantage of any defect or fault in' pleading, in the previous proceedings in the suit, the demurrer can reach no further back than the proceedings .remain in fieri, and under the control of the court. . The judgment on the first sdre fadas, although ancillary to. the original judgment, • and the foundation of the proceeding on the second sdrefadas, was, nevertheless, a final judgment, and, in that count, conclusive upon the parties.; and opposed an insuperable bar to añy plea of either party, whether of law or of fact, designed to go beyond it.
. It is the opinion of thig court, therefore, that advantage could not be taken of any defective averment in'the first sdrefadas, upon the demurrer of the-plaintiffs to the pleas of the defendant; which is ordered to be^-certified to said Circuit.Court.