Waugh & Isbell v. Chaffin , 14 N.C. 101 ( 1831 )

Henderson," Chief-Justice,

after stating the case, as above, proceeded : On these judgments, declaring on them in the debet and detinet, the present áction is brought, to charge the defendant personally, without any evidence' of assets. And this depends on the question, whether they are absolute or quando judgments. The whole entry must he taken together, and if so, it is impossible to make them absolute judgments, or to reconcile the admission of former judgments and retainer, with an absolute judgment. I say nothing of the entry “ to be paid when the money is collected,” for that entry is made in the first judgment only,' and in the other two, the entries in the first are. referred to. But I lay it out of the case. As I said before, the admission of the pleas renders it impossible for them to be understood as absolute judgments. If they were not so at first, the revival by sci.fa. did not make them so. The revival, only autho-execution on them, as their terms originally imported. It simply gave an execution. It is therefore impossible, without evidence of assets afterwards com-mg to hand, more than sufficient to satisfy the defend-afft’s retainer, and the other judgments referred to in the pleas, to sustain the action. Even with such' evidence, I think that the action cannot be sustained, until the defendant is fixed with assets in this cause, either by sci. fa. suggesting them, or by some other mode. I speak from recollection only, or rather upon principle, as I have not examined the authorities. But most certainly it cannot he done, as said above, without evidence to charge the defendant with additional assets; in other words, with assets subject to these judgments. As to the objection taken by the defendant, there is nothing in it. The ruléis not, thatindebt the plaintiffmust recover tlie sum demanded, or not at all; but that the proofs must agree with Ms allegations. The plaintiff may recover less. ■

cover ^ ksTthan he demands, but agree1 witiThis . Iíi debt, the

Per C uni am. — Jubgment aeeirmbb.