The amendment proposed seems to us proper to be made, if there is any occasion for it. It evidently sets out, with more fulness and detail, the same cause of *379action that is stated in the scire facias, as it was originally drawn. It presents no new cause, and falls within the ordinary rule as to the amendment of legal proceedings.
The amendments alter the original declaration in two particulars: first, in setting out, with more particularity, the proceedings in the original action; and, second, in inserting a suggestion of a devastavit — a specific allegation that the administrator has misapplied and wasted the property belonging to the estate.
. As to the first of these, it appears to us that the allegations of the scire facias are quite sufficient. It sets forth the fact of a judgment recovered against the defendant as administratrix, to be levied of the estate in her hands; and we think it immaterial by what process the suit was commenced, or when that process was returnable, or what proceedings took place in court, prior to the rendition of the judgment. A scire facias need not recite all the proceedings upon which the judgment was given, but the judgment only. Carth. 149 ; Com. Dig., Pleader 3, L 3 ; and see forms, 2 Lillie’s Ent. 639, 640, &c.; and 9 Went. PI. 543, &c.; Prec. Dec. 323.
The allegation of the scire facias, that the officer returned that he had made diligent search, and had found no goods, &c., belonging to the estate, in his precinct, is proposed to be amended, by inserting, “ and whereas it has been suggested by the said Peaslee that the said Mary Kelley, administratrix as aforesaid, has misapplied the property belonging to the estate of said Edmund, and has improperly disposed of the same, to the damage of the said Peaslee.” But this does not seem to us to be necessary.
Though, by our earliest statute on this subject, 13 Anne, ch. 42, Prov. Stat. 54, and by the statute of 1822, Laws of 1830, 213, sec. 23, the administrator could be charged upon a scire facias, as of his own proper goods, only “upon a suggestion of waste, and return made by the sheriff, *380nulla bona, or a devastavit,” yet the provision of the Revised Statutes, eh. 161, sec. 18, does not require such suggestion. “ Upon return of ‘ no goods,’ or ‘waste,’ made by the sheriff on such execution, an execution may be awarded, on scire facias, against the goods, estate and person of the administrator, as for his owu debt, to the amount of such waste, if it can be ascertained; otherwise, for the whole debt.”
It seems from this provision, that, in order to maintain a scire facias in such a case, it is sufficient to allege that the sheriff has returned no goods, which is precisely what is done in this scire facias.
Under the former statutes here, and in England, the suggestion of waste is matter of legal inference; and, if inserted, no evidence of the fact could be required beyond the officer’s return of nulla bona.
The course of proceeding in England, by scire fieri inquiry, is unlike any course of proceeding known in our practice. See Tidd’s Prac. 983, 1019 ; 1 ¥m. Saund. 219, n. 8; Williams’ Ex’rs 1694. Rut the action of debt upon the judgment suggesting a devastavit, is substituted in lieu of the proceeding by scire fieri inquiry.
The foundation of this action is the judgment obtained against the administrator, which is conclusive upon him, that he had assets to satisfy such judgment. If, therefore, upon a fi. fa. against an executor de bonis testatoris, no goods can be found or not enough, or, which is the same thing, the executor will not expose them to the execution, that is evidence of a devastavit, and, therefore, it is reasonable that the executor should become personally liable and chargeable de bonis propriis. The mode of proceeding is immaterial, because the executor is entitled to the same defence in debt on the judgment as in the proceeding by scire fieri inquiry.
This action may be brought upon the judgment against the executor, upon a bare suggestion of waste, without *381any writ of fieri faeias taken, out upon the judgment. But the usual course is, first to sue out a fieri facias upon the judgment, and, upon the sheriff’s return of nulla bona, to bring the action; and on the trial the record of the judgment, the fieri faeias, and the return, will be sufficient evidence to prove the ease. 2 ¥ms. Exrs. 1698.
This citation seems to be conclusive as to what is material in our action of seire faeias, and the necessary evidence to be offered to charge an executor de bonis propriis : the judgment, the execution, and the return, of nulla bona. If waste is alleged, it is not necessary to prove it, nor to offer any other evidence tending to that result.
It cannot be necessary, in the absence of any legislative requirement, to allege what, if alleged, it is unnecessary to prove. It is merely form.
The seire faeias in this ease seems to us to be in good and sufficient form, and no amendment is required.
The demurrer must consequently be overruled.