TRAIN v. CONWELL, 2 Del. Cas. 6 (1793)

Read’s Notebook, 7[*]

TRAIN, Administratrix of Train, v. GEORGE CONWELL, FISHER CONWELL and ELIAS, Executors of Elias Conwell.

Supreme Court of Delaware.
November, 1793.

[*] This case is also reported in Bayard’s Notebook, 4; Wilson’s Red Book, S; Miller’s Notebook, 46.

Certiorari upon a scire facias on a judgment recovered against George Fisher, and Elias Conwell, executors of E. Conwell, deceased. Nul tiel record pleaded. On the trial of the issue before

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the court, the plaintiff produced a record from the Court of Common Pleas of a judgment confessed by George Conwell as executor etc.

The defendant’s counsel stated that the record produced was only of a judgment against the executor who confessed, for by the Statute of 9 Edw. III (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’s estate; 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 nul tiel record, but there may be, for aught the court know, a judgment that will, Salk. 52.

Plaintiff’s counsel cited a marginal note, 2 Bac.Abr. 395 reciting a marginal note in Dyer, as contradicting 1 Str. in loc. cit.

PER CURIAM.

The cases cited show that a judgment confessed by one executor may be reversed, but still those cases cited by the defendants’ counsel notwithstanding, 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 were before us upon the execution.

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