The opinion of the court was delivered by
The only question raised by this appeal being whether Judge Wallace erred in overruling a demurrer, based on the ground that the complaint did not state facts sufficient to constitute a cause of action, it will be necessary to state substantially the allegations of the complaint. These allegations are as follows: That the plaintiff is the duly qualified executor of the will of W. R. Young; that the defendant is the
The appellant, in his argument to support his demurrer, takes two alternative positions: 1st. That the Court of Probate had no jurisdiction to render a judgment on the unpaid note of a creditor, and heneé, as the action is'based upon the alleged judgment of the Court of Probate, the facts stated constitute no cause of action. 2nd. That if the Court of Probate had the power to render such a judgment, the plaintiff’s remedy was to enforce such judgment by execution, and hence no action could be maintained on the judgment.
Whether the Court of Probate had the power, prior to the passage of the act of December 20, 1878 (16 Stat., 710, substantially incorporated in the Codé as sections 67 and 69), to render a judgment which could be enforced by execution, may admit of some doubt. The act of 1872 (15 Stat., 23), which was passed for the avowed purpose of removing the doubts then admitted to exist, does not seem to have been couched in language calculated to make the matter clear, for it is there declared that the judge of probate .may issue executions “when that is the necessary and proper process to carry into effect any order, sentence, or decree of such court” — the extent and meaning of which is far from plain. The act of 1878, above referred to, could not be applied
But under the view which we shall take of this case, we do not deem it necessary to determine the question just considered. It seems to us, that the more correct view to take of the case is that it is an action to enforce an admitted liability by defendant’s testator to the plaintiff; and in that view the allegations of the complaint are clearly sufficient to constitute a cause of action. By the settlement made by Mr. Todd of the estate of his testator, Dial, he admitted that he had in his hands the sum stated applicable to the plaintiff’s claim, and this made him personally liable to pay the same to the plaintiff. _ But he not only admitted such liability by acquiescing in the decree of the judge of probate, but he renewed such admissions by his subsequent payments thereon, and neither he nor his executrix can now dispute such liability. Buchanan v. Buchanan, 4 Strobh., 63.
As to the second proposition upon which the appeal is based, we do not think it can be sustained when applied to this case. Assuming, for the present, that the judge of probate had the power to enforce the decree rendered by him on August 1,1877, by execution, yet as no execution appears ever to have been issued, and more than ten years had elapsed after the rendition of the decree before this action was commenced (December 31, 1887), it is quite clear that before the plaintiff could obtain any execution, even within the three years allowed by the act of 1873— the law then in force — he would have had to institute some proceeding .to revive the judgment, which it would seem, from the terms of the latter part of section 14 of the act of 1873 (15 Statutes, at page 499), could only be instituted in the Court of Common Pleas. But be that as it may, whatever doubts may have
The judgment of this court is, that the.judgment of the Circuit Court be affirmed.