Plummer , for defendant, objected that this action, which was an action of debt, suggesting a devastavit , should have been against Hayes as administrator. Secondly, that as a devastavit was suggested, it should be proved to the jury. Thirdly, that this decree being in chancery in rem , would not support such an action, the object of which is to subject the proper goods of the administrator. He now abandoned the two first objections, but insisted upon the third; and argued that as the decree was to be satisfied out of the assets in the hands of the executor, it could not be claimed out of his own estate.
E contra , it was argued by plaintiff's counsel that the proper decree of a court of chancery, not made a court of record, is that the executor, personally, shall pay the debt, and process of contempt issues against him for disobedience. 1 Bro. Ch. C., 488. And in that view of the case, it can be no hardship to proceed upon the decree to subject him personally. If, however, the decree be in rem , as it is insisted, it must be because the decrees in Virginia can do what decrees in England cannot; for there the maxim is, Chancery agit in personam . Their decrees are in personam , and their process to enforce them, also. It is not, however, for the advantage of the defendant to say the decree is in rem , for so is the judgment at law against an executor, to wit , (331) to be levied de bonis testatoris , and is enforced by a fieri facias , which is a process in rem . There is not any reason why the nonproduction of assets shall not be attended with the same consequences in chancery as at law, namely, being subjected de bonis propriis . The judgment at law is a proof of assets and a devastavit , if nulla bona be returned, because at law a judgment would not be pronounced to be levied de bonis testatoris , unless it had been previously ascertained that he had assets; so neither would a decree in equity, for there an account of assets is always taken, unless the defendant admits them. The Court will not pronounce a decree unless there be a report of assets. Can there be any reason, then, that he shall not be liable personally, in equity, for the nonproduction of assets, when that nonproduction will make him liable at law? Or that the words, to be levied de bonis testatoris , with a return of nulla bona , shall at law be proof undeniable of a devastavit , but in equity shall afford no such evidence, nor be attended with any such consequences? Let me ask, How, then, is the plaintiff in equity, who has such a decree, to proceed upon the return of nulla bona? If he cannot subject him de bonis propriis , and cannot proceed in personam , as is objected, how, then, can he proceed? He must still look for the fund which nowhere exists; and if he cannot find that, he must stop. This is the plain consequence of the objection. It cannot be objected that an action of debt will not lie,
for the decree in chancery in Virginia is a matter of record as much as a judgment at law, is equally conclusive, and equally extinguishes the cause of action on which the decree is rendered. This point was decided by MARSHALL, J., at the last term of the Circuit Court at RALEIGH, in Miller v. Hardiman . The only reason why in England debt will not lie on a decree is because, not being of record, it cannot extinguish, but only ascertain the demand on which the decree is rendered.