FROM WARREN. At the return term the defendants, among other pleas, pleaded "retainer, judgments outstanding against them, and also against their intestate; and as to the assets which have come to their hands which are unprotected by their former pleas, they plead fully administered, except as to the sum of $18,785, and with respect to that sum they have confessed assets to that amount to other actions on claims of equal dignity with the plaintiff's, returnable to the present term of (398) this Court and now depending."
No special replication was filed by the plaintiff. After the cause was in the Superior Court, the following rule was made by consent:
"Ordered, That the clerk state an account of the administration of the defendants, showing the amount of assets and how the same have been disbursed, confessed, or otherwise disposed of, specifying the time when such payment or other dispositions were made, to whom and on what account, and that the state any question that may be desired by either of the parties, or on which he may doubt, for the opinion of the Court. It is further ordered that either party be at liberty to except to the report of the said clerk; and it is agreed that the account so taken shall be received as evidence in the trial of the cause, on the plea of fully administered."
The clerk, in taking the account, rejected a judgment for $409 and $100 part of another, both of which were upon promissory notes of the intestate, and stated as his reasons that the first was confessed upon a note which was not due at the time the writ was sued out; and that the second was confessed for $100 more than was due upon the note on which the action was brought. No exception had been taken to the report in either of these respects. *Page 256
On the trial of the cause before his Honor, Judge MARTIN, the defendants claimed the benefit of both the judgments which the clerk had rejected. For the plaintiff it was insisted that as no exception had been taken to these particulars of the report, it was too late for the defendants now to object. The counsel for the defendants stated that they did not wish to offer evidence to vary the state of facts reported by the clerk, but only desired that the Court would re-examine the reasons of the clerk as stated by him, and insisted upon the face (399) of the report that both judgments should be allowed them in full. But his Honor was of opinion that upon a proper construction of the rule of reference an exception was necessary, not only to let in proof in opposition to the facts reported, but also to enable the Court to re-examine any decision of the clerk upon the facts reported.
The defendants then offered to show debts of higher dignity than the plaintiff's claim, which, with the judgments confessed as stated in the plea and allowed by the clerk, would amount to the whole sum of $18,785 of the assets mentioned in the plea. But the judge was of opinion that the defendants by their plea had admitted $18,785 of assets, besides the judgments and debts of higher dignity, and had relied upon the confessions of judgments at that term for their protection as to that sum, and consequently that the plaintiff by falsifying any of those judgments thus confessed had shown assets to the amount of the judgments thus falsified, which were liable to his demand, and thereupon the jury, under the directions of his Honor, found for the plaintiff.
Another point was made in the Court below. After the cause was in the Superior Court the defendants pleaded that J. W. Hawkins had sued out a writ against them, returnable at the same term with that of the plaintiff's, and since the last continuance had obtained judgment, etc." To this the plaintiff replied, nul tiel record. On this issue his Honor proforma gave judgment for the plaintiff, and judgment being also rendered upon the verdict, the defendants appealed. We are glad that we have it in our power to decide this case on its merits, without determining the much contested point, whether Hawkins' judgment could be pleaded since the last continuance, in protection of the assets. The case stands upon the plea that the defendants had fully administered, except as to $18,785, which they had confessed to suits brought to and then pending in that court, to which there was a general replication. It was then, by mutual consent, referred *Page 257 to the clerk to take an account of the administration and report, and that such report should be evidence in the cause. The clerk reports, among other things, that one of the judgments was on a note not then due; and that in another case judgment had been confessed for $100 more than was due on the note. The first question is, are these facts under the pleadings admissible to be shown; and secondly, if so, is the report evidence of those facts? If the debts had been pleaded, and the judgments set forth nominatim in the plea, I think the evidence would have been inadmissible. For if the plaintiff intended to impeach the judgment, he should have specially replied the cause of the impeachment. But the plea, although more special than common, is not so precise in pointing to the judgments, as to require a special replication. The defendant must himself ask indulgence to make his plea good, for want of certainty, and thereby the plaintiff is excused from making the special replication, that one judgment was fraudulent, being for too much, and another was so because on a bond not due. For, although the defendant pointed to the judgments as in that Court and at that term, the plaintiff was not obliged to wade through the whole of the records of the term to ascertain them. According to our loose practice, the defendant is at liberty to produce his judgments, and the plaintiff to impugn them by any means in his power. The defendant cannot complain, for he requires a relaxation of the rules of (401) pleading to make his plea good, and must consent to a like relaxation in behalf of the plaintiff.
The next question is whether the clerk's report is evidence to impeach the judgments. I think that it is. It will be recollected that the plea is that there are suits pending to the amount of $18,785 on evidences of debt equal in dignity to that of the plaintiff's. The reference to the clerk is not whether the suits are pending on evidences of debt equal in dignity to the plaintiff's, for that question the parties did not submit to him; but they did submit to him an investigation of the facts, on which that question depended as well as others — to wit, the amount of all the assets, the prior judgments, or debts due by the defendants; whether there were debts to that amount in suit, and the nature of the evidences of the debts. Those particulars, I think, were fully within the scope of his authority. This is fortified by the consent of the parties. Otherwise the defendants must be subjected to the charge of being guilty of a foul fraud. Either party was at liberty to except. The clerk made a report, in which the facts were stated. No exception is taken, and when the report is offered in evidence for the first time it is objected that the defendant did not intend to refer particular facts to him. Fair dealing required, if he did not design to submit those facts to the clerk, he at once ought to have excepted to it, that his *Page 258 opponent might be put on his guard. This conduct of the defendant, although it cannot change the law in matters of fact, concludes him in this point of his case whether or not it was within the submission. But I think, taking these as suits pending, it was clearly within the submission.
There are, therefore, assets in defendant's hands over and above those attached to the suits pending and which could be recovered of them sufficient to satisfy the plaintiff's demand. If they are permitted (402) to remain there against this plaintiff, who can call them out?
None others have suits pending.
PER CURIAM. No Error.