Wilson’s Red Book, 8[*]
Supreme Court of Delaware.
November, 1793.
4; Miller’s Notebook, 46; Read’s Notebook, 7.
Certiorari upon a scire facias upon a judgment “recovered against George Conwell, Fisher Conwell and Elias Conwell, executors” etc. Nul tiel record pleaded.
Upon the trial plaintiff produced a record from the court of Common Pleas of a judgment confessed by George Conwell as executor etc.
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Defendants’ counsel stated that the record produced was only a judgment against the executor who confessed, for by Statute, 9 EdwJII, Salk. 312, certain process must go against the other executors before judgment can be against them of the goods in their hands of the testator. And that one executor cannot confess a judgment that shall bind the other executors because they may plead different pleas, 1 Str. 20. And therefore the record produced being only of a judgment against one did not support the plaintiff against the plea of mil tiel record, but there may be for aught this court knows, a judgment that will, Salk. 52. Plaintiff’s counsel cited a marginal note in 2 Bac.Abr. 395, reciting a marginal note in Dyer, as contradicting 1 Str. 20.
PER CURIAM.
The cases cited for defendants show that a judgment confessed by one executor where there are more may be reversed, but still it is a judgment, and therefore supports the plaintiff against the plea; but we do not say what we should do if the other executors came before us upon the execution.