Crossan v. Glass — 4 Del. 342

Majority

p. 342

SAMUEL CROSSAN’S Adm’x. vs. SAMUEL GLASS, Adm’r of DAVID JUSTICE, deceased.

Headnote

Judgment on an award in a case against an administrator, is a judgment of assets, and does not bind the defendant personally, unless assets be found, although there be no plea of piene administravit.

A judgment was rendered in this case on the award of a referee, in an action of assumpsit. The award did not find assets, and the judgment was entered generally, in a suit brought against the defendant as administrator, in which he pleaded the general issue, and thfre was no plea of piene administravit.

1A fi. fa. was issued against him as administrator, which the sh|rifflevied upon his own goods.

Mr. Whitely

now obtained a rule to show, cause why this levy should not be set aside.

Mr. Wales,

showed cause.—The action was brought against the

p. 343

defendant as administrator. He pleaded the general issue non-assumpsit, and did not plead that he had fully administered the estate. This was an admission of assets. The case was then referred to Judge Hall, who made award generally. There being no such plea of want of assets, the judgment is in effect a judgment de bonis propriis.

Whitely, for the rule.

Wales, contra.

Whitely.

—The award of the referee does not find assets, and the act of assembly says that the judgment against an executor or administrator on the report of referees, shall not be conclusive that he has assets, unless it be found by the report that he has assets. (Dig. 225.) This judgment therefore, is one of assets, and the exe. cution properly follows it, and commands the sheriff to levy on the goods of the intestate in the hands of the administrator; but the sheriff has levied on the goods of the administrator.

set aside the levy. It might happen in case there are no assets, that by this levy the administrator would be compelled to pay the debt, without any means of remuneration.

Levy set aside.