Wallace's Administrator v. Holmes

The opinion of the court was' delivered,

by Lowrie, C. J.

This judgment was entered against Thomas Wallace in his lifetime, and after his death his executor appeared without sai. fa., and was substituted. But he was afterwards removed, and an administrator de bonis non appointed ; and thereupon, on the 29th September 1860, a sai. fa. was issued to bring him upon the record, returnable on the first Monday of October; and on the 20th October, the administrator not appearing, judgment was entered that he be substituted.

This is very right. The 27th and 32d sections of the Act of 1834, relating to executors and administrators, have nothing to do with the proceeding; it is governed entirely by the 33d section. That requires that the administrator be warned to appear and show cause against the issuing of the execution. This expression defines the purpose of the appearance. The law takes the judgment for verity, but requires that when the defendant is dead his'representative shall take his place, and shall have an opportunity of showing any cause known to him, arising since the judgment, why the plaintiff should not have execution. The fact that defendant is administrator he does not mean to deny, and this fact and the previous judgment entitles the plaintiffs to their execution, unless the administrator appear and show some such cause against it as would have entitled the decedent himself to a stay, or to a modification of the execution, on account of payments, or otherwise. But such a judgment does not prevent a stay in order to let the administrator apply for a sale of the property under the direction of the Orphans’ Court. Judgment of substitution, and that execution issue, would have been a better entry.

Judgment affirmed.