ex PRINCE GEORGES COUNTY

day and that the clerk for his default pay all costs and damages accruing thereby.
The same result obtained in Magruder v. Tracey's Administrator. 94

In both cases new writs were sued out returnable in the March 1698/9 term.
Appearances, imparlances and continuances took the cases over to the October
1699 court. At this court Joshua Cecil appear for Small, the administrator, and
demurred to the writ. For causes of demurrer Cecil stated that the writ did not
provide upon whom or what execution should be levied, whether upon the body
of Small or upon the goods and chattels of Tracey, the decedent, for no execution
could be awarded against the body or goods of an executor or administrator de
bonis propriis until a writ of devastavit had been legally returned against such
executor or administrator that they had wasted the estate of decedent or that the
executor or administrator had pleaded some false plea to the perpetual bar of the
debt sued for. Further, if the judgment to be affirmed in the writ was supposed to
be made upon the goods and chattels of the decedent Charles Tracey, as it must
be if any was obtained, the writ should have mentioned why Brooke did not seek
to have execution against defendant for the debt and damages to be levied upon
the goods and chattels which were decedent's at the time of his death and which
the writ made no mention of. By reason of this uncertainty in the writ no judgment
could be entered, for the count or declaration had to be agreeable and conform to
the writ, the plea in bar to the count or declaration; none must be narrower or
broader than the other, citing Coke, First Institute, f. 303a. Wherefore, for want
of a sufficient writ of scire facias to warrant and maintain a judgment to be affirmed
by such writ, defendant prayed judgment for his damages and costs. 95

To this demurrer William Stone, attorney for James Brooke, stated that he
ought not to be barred from having his scire facias by anything alleged in de-
fendant's plea and for replication said that the writ was well brought by mention-
ing therein David Small to be the administrator of Charles Tracey, that execution
might safely be awarded against the goods and chattels of decedent and not against
Small as executor or administrator de bonis propriis. That Small had wasted the
estate of the decedent or had pleaded any false plea to the bar of the plaintiff's
debt sued for were "but meer Niceyties in Law and alltogather contrary to the
Cusome and Practice of this Province and not Sufficient to preclude the Said
Plantiffe from haveing Judgment affirmed upon the Said Scire facias." Stone
accordingly prayed judgment of the court whether defendant's plea was "not all-
togather Dillatary Visious and Eronious" and further prayed judgment for the
debt and costs. To this Cecil rejoined that the replication was not sufficient in law
to bar defendant's plea in demurrer or to maintain the writ and put himself upon
the court, as did Stone.

The court adjudged that the demurrer be quashed and that the scire facias be
good. It further adjudged that Brooke recover against Small, as administrator,
the debt and damages referred to in the writ as also 556 pounds of tobacco in ad-
ditional costs and charges, the recovery to be out of the goods and chattels of
Tracey at the time of his death come into the hands of Small to be administered.
In Magruder v. Tracey's Administrator the case followed the same course upon
return of the writ, Magruder being represented by John Meriton as attorney.

Transfer

In several instances causes were removed to the Provincial Court by means of a
writ denoted habeas corpus (presumably habeas corpus cum causa) or certiorari.

94. Infra 438-39.

95. Infra 549-53.