TEASDALE v. THE ADMINISTRATORS OF BRANTON.

[U. S. Circuit Court, District of North Carolina, 1805.-2 Hayw. 377.] VERDICT - PRESUMPTION OF JUDGMENT FROM.-If upon the plea of nul tiel record the record produced shows a verdict, but no judgment entered thereon, the court will presume, according to the loose practice in this State, that there was a judgment entered pursuant to the verdict, and pronounce that there is such a record.

PLEADING ADMINISTRATOR-PERSONAL LIABILITY. - After a confession of assets a judgment to be levied de bonis testatoris, and a return of nulla bona, a scire facias to the executor or administrator to subject him de bonis propriis is the proper course, and will issue on suggestion of a devastavit.

PLEADING REPLICATION TO PLEA OF JUDGMENT AND NO ASSETS.-If an administrator plead judgment and no assets ultra, replication thereto may be either nul tiel record, or assets ultra, or per fraudem, or any other fact properly triable by jury.

There was a verdict against the administrator upon the plea of fully administered-judgments, etc. Execution issued, and was returned nulla bona. This scire facias issued to show cause why the plaintiff should not have judgment to be levied de bonis propriis. The defendant pleaded nul tiel record, no devastavit returned or found-judgments. Replication to the plea of nul tiel record, and demurrer to the other pleas. The record produced showed the verdict; no judgment had been regularly entered. The scire facias after stating the verdict went on and stated that judgment was rendered accordingly.

PER CURIAM.-We must presume according to the loose practice of this State that there was a judgment entered pursuant to the verdict, and therefore we must say there is such a record. As to the demurrer, for that no devastavit is returned or found: to be sure by the English practice no scire facias lies against the executor to subject him de bonis propriis, till a devastavit is found upon a scire fieri inquiry, and returned. An action of debt, however, will lie upon suggestion of a devastavit, and the practice in this State has been to issue a scire facias upon such suggestion. And as every defense can be made to the scire facias which could be made to the action, there can be no good reason for adjudging the scire facias improper. If the scire facias here be considered in lieu of scire fieri inquiry in England, it possesses advantages far above the English mode; for here it is to be executed in court, and under the direction of

the court; whereas the other is in the county before a jury. With respect to the demurrer to the plea of judgments and no assets ultra, that was pleaded in the original suit; but the defendant's counsel say a replication thereto, denying the judgments, is nul tiel record; and the record shows that the jury said there were no such judgments; therefore the plea has not been tried, and if so, no judgment can be presumed; for the court ought not to enter judgment when any one plea remains untried. The answer is, the [378] replication may be either nul tiel record, or assets ultra, or per fraudem, or other matter of fact; and such replication was properly triable by jury; and an irregularity committed by the clerk in entering the verdict will not raise a presumption that the judgment was not given upon the verdict. If there was such a judgment, that estops the defendant from using any plea which he did or might have pleaded prior to that judgment. The demurrer therefore must be allowed.

ANONYMOUS.

[U. S. Circuit Court, District of North Carolina, 1805.—2 Hayw. 378.]

INTEREST - LIABILITY OF BAIL FOR. In a scire facias against bail, interest is not allowed on the judgment rendered against the principal.

PER CURIAM.-This is a scire facias against bail, and the plaintiff's counsel urges that he is entitled, against the bail, to interest upon the judgment against the principal. We are of opinion he is not so entitled; for the judgment upon the scire facias is that the plaintiff have execution against the bail of the judgment against the principal. The very same execution therefore issues against the bail as issues against the principal; and consequently damages arising after the judgment cannot be included. (Cases cited, Salk. 208; Strange, 807; 2 Raym. Ld. 1532; Com. Dig., Bail; R. 10.)

30 GRUBB'S ADMINISTRATOR v. CLAYTON'S EXECUTOR.

GRUBB'S

ADMINISTRATOR

ECUTOR.

V. CLAYTON'S EX

[U. S. Circuit Court, District of North Carolina, 1805.-2 Hayw. 378.]

DISMISSAL OF ACTION EFFECT OF. - A dismissal of a bill, except upon the merits, is no bar to a subsequent bill for the same cause.

LIMITATION TO ACTION BY CREDITOR OF DECEASED PERSON. -If there be no adminis trator of a deceased creditor to bring suit, the Act of 1789 requiring creditors in the State to bring their actions within three years cannot operate as a bar.

PER CURIAM.-This cause was instituted formerly in Wilmington Superior Court. The Act of 1715 was pleaded, and thereupon a case was made and stated for the court of conference, who decided that the said Act of 1715, chap. 48, § 9, was in force. The plaintiff's counsel then replied to the plea, and after the replication the whole bill was dismissed on their motion; that is to say, on the motion of the plaintiff's counsel. The suit was then instituted in this court, and the defendant's counsel have pleaded the former dismission in bar. We are of opinion that was not a dismission upon the merits considered of and decided by the court, and therefore that the plea in bar is not good. There is also another plea in bar, namely, the Act of 1789, chap. 23, § 4, by which it appears that this suit was not commenced within three years from the qualification of the executors, though there was an administrator of Grubb in England. Now as there was no administrator in this country, there was no person in being who could demand the debt, of course no creditor to be barred. The words of the act are: "The creditors of any person deceased, if they reside without the limits of this State, shall within three years from the qualification of the executor or administrator, exhibit and make demand, etc., and if any creditor shall hereafter fail to demand and bring suit for the recovery, etc., he shall forever be debarred," etc. The [379] plaintiff, therefore, is not within the body of the act. We need not consider whether an exception shall be allowed of, which is not expressly mentioned in the act.

THE UNITED STATES v. HOLTSCLAW.

[U. S. Circuit Court, District of North Carolina, 1805.-2 Hayw. 379.]

EXPERT EVIDENCE-PROOF OF HANDWRITING. The signatures of the president and cashier of a bank may be proved by persons who never saw them write, but whose business has made them conversant with bank bills; and the judgment of persons well acquainted with bank notes is sufficient to determine whether a note be genuine or forged.

PER CURIAM.-The objection made by Mr. Seawell that no one shall speak as to the handwriting of the president and cashier of the bank, but one who has seen them write, or has been in the habit of receiving letters from them in a course of correspondence, is not a sound one. These signatures are known to the public, and persons who have been in the habit of distinguishing the genuine from the counterfeit signature, and conversant in dealings for bank bills, are as well qualified to determine of their genuineness, as persons who in private correspondence have received letters from the person whose handwriting is in question. Moreover, it is determined by the skillful whether a bill be genuine, not only by the signature, but also by the face of the bill, and by the exact conformity of the devices which are used for the detection of counterfeits, to those in true bills. We are of opinion that the judgment of persons well acquainted with bank paper is sufficient evidence to determine whether the one in question be genuine or otherwise.

ISAAC STOYEL v. JOHN LAWRENCE AND

TIFFANY ADAMS.

[U. S. Circuit Court, District of Connecticut, 1807.

3 Day 1.]

PROCESS-SERVICE AFTER RETURN DAY.-An execution after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass.

Present, The HON. PIERPONT EDWARDS.

This was an action of trespass for false imprisonment.

Plea, not guilty.

On the tria! it appeared that one Job Smith had obtained a judgment, before the Windham County court, against the plaintiff, and had taken out an execution, dated the 13th of May, 1804, returnable according to law.^ On the 25th of August, 1804, Lawrence was deputed by the sheriff of Windham County to execute it. On the 31st of July, 1805, Lawrence, with the assistance of Adams, arrested the plaintiff, by virtue of that execution, and kept him in confinement one or two days, when he paid the execution and was released. The only question in the case was whether the execution gave the officer any authority to make the arrest.

Ingersoll, for the plaintiff, contended that the time within which the execution was returnable having expired, it became a dead letter, and that the arrest under it was a trespass.

Daggett, for the defendants, contended that the time limited for the return of an execution is only for the benefit of the creditor. When that time is expired the officer becomes liable to him. But with regard to the debtor it makes no difference. His indebtedness is the same till the execution is satisfied. He may be taken at any time. The right of the creditor to renew his execution at pleasure shows that the limitation is in his favor.

Further, an officer may justify under a process which is either irregular or erroneous, provided it be not absolutely void. In the following cases it was holden that though the process was irregular, yet it was sufficient for the sheriff to make the arrest, and therefore he was liable for an escape: Howard v. Pitt, 1 Salk. 261; Shirley v. Wright, 1 Salk. 273; 2 Salk. 700; 2 Ld. Raym. 775; Ognell v. Paston, Cro. Eliz. 165; and Bushe's Case, Cro. Eliz. 188. A capias ad satisfaciendum, made returnable at a day which falls out of the term is not void, but only liable to be set aside, upon motion, for irregularity. (Campbell v. Cumming et al. 2 Burr. 1187.) In this State an execution after the return day is not more irregular than the executions in the cases cited. The reason why, in England, an execution may

A By statute "all writs of execution shall be made returnable within sixty days, or to the next court (in case sixty days are remaining between the date of the execution and the next court), at the election of him that prays it out." (1 Stat. Con. tit. 63, c. 1, 10.)