PARKER v. STEPHENS, 2 N.C. 218 (1795) PARKER v. STEPHENS.Superior Court of North Carolina (April Term, 1795.) When an executor omits to plead "no assets," it is an admission of assets which he can never afterwards controvert; and in such case the proper judgment is that the principal sum recovered be levied de bonis testatoris in the hands of the executor, and the costs de bonis propriis; and upon the return of the sheriff that there are no goods of the deceased in the hands of the executor, then a sci. fa. issues to the executor to show cause why the execution for the principal should not be levied de bonis propriis. PLAINTIFF had brought an action against the defendant, as administrator of Charles Stephens, deceased, to which the defendant appeared and pleaded the general issue, act of limitations, a former recovery, (219) and set-off. All of which pleas were found against him, and damages assessed to £ 90, 4s., and costs to six-pence: and there was a judgment against him, to be levied de bonis testatoris; a fi. fa. issued, and the sheriff returned thereupon that there was not any property of the intestate's to be found, and upon this return the plaintiff took out a sci. fa. for the defendant to show cause why the plaintiff should not have judgment to be levied de bonis propriis.
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PARKERv. STEPHENS,2 N.C. 218(1795)
Superior Court of North Carolina
When an executor omits to plead "no assets," it is an admission of assets which he can never afterwards controvert; and in such case the proper judgment is that the principal sum recovered be leviedde bonistestatorisin the hands of the executor, and the costsde bonispropriis;and upon the return of the sheriff that there are no goods of the deceased in the hands of the executor, then asci. fa. issues to the executor to show cause why the execution for the principal should not be leviedde bonis propriis.
PLAINTIFF had brought an action against the defendant, as administrator of Charles Stephens, deceased, to which the defendant appeared and pleaded the general issue, act of limitations, a former recovery, (219) and set-off. All of which pleas were found against him, and damages assessed to £ 90, 4s., and costs to six-pence: and there was a judgment against him, to be leviedde bonis testatoris;afi. fa. issued, and the sheriff returned thereupon that there was not any property of the intestate's to be found, and upon this return the plaintiff took out asci. fa. for the defendant to show cause why the plaintiff should not have judgment to be leviedde bonis propriis. This cause now came on to be argued. It was argued on the part of the defendant that thissci fa. is irregular and improper, for that the first judgment should have beendebonis testatoris si, et si non de bonis propriis, and that not being so, it was erroneous; and that the court would not now help the plaintiff in this hard case, where the attempt is to subject the defendant's goods merely for his mispleading, or for his ignorance of the rules of pleading, when perhaps the fact may be that he hath not any of the goods of the intestate in his possession nor ever had.
PER CURIAM.
We must not depart from the settled rules of law to avoid an inconvenience in a particular case. It is better for the individual to suffer that inconvenience than that the public should suffer a general mischief by having the rules of law rendered arbitrary and uncertain. The rule of law is well known, that an omission on the part of the executor or administrator to plead want of assets is a confession of them, so that he can never afterwards be permitted to say he had no assets to satisfy that demand. The proper judgment in such case is to be leviedde bonistestatoris;for the law will not presume there are no assets when admitted by the executor that there are, until it shall appear upon the return of the officer. Godd., 199, secs. 7 and 8. The costs of the first judgment are to be leviedde bonis propriis, because, having assets of the deceased in his hands, he ought therewith to have satisfied the debt, and not have incurred the costs of a suit, which as they mustPage 167necessarily be paid by some one, now the suit has been commenced, are justly charged upon him who hath occasioned them, and not on the estate of the intestate; and therefore in such case the true method of entering the judgment is this, the principal to be leviedde bonis testatoris, and the costs amounting to so much, to be leviedde bonis propriis. And the judgment to have executionde bonis propriisfor the principal is always a subsequent judgment, founded upon thesci. fa. This judgment was therefore well entered and thissci. fa. well brought upon the return the sheriff hath made, and the plaintiff must have judgment according to thesci. fa. And he had judgment accordingly. (220)VideOffice Exec., 165 to 172.
Seepost, 298.Cited: Lewis v. Fagan,13 N.C. 301;King v. Howard,15 N.C. 583.