Virginia Argus — Richmond, Va., 1810-05-15 00:00:00, page 1

life:!; IRGIN'I A ARGUS Hfi:
XVlIlTa YEAR.] A -nr- .d.
- _J_*A PREE PRE#S maintains the soveacicnty or the People.
-—1-■ . / [No. 1767.]
RICHMOND: Printed (on IVssDAirs and Fridays,) by S WfUSL PLSASrs Tir«irto p ~~~~ -—
—-«—---' _5, Junior, Printer to the Commonwealth.
. L-Pw Dvllers Per dn\um—Paid in Advance* ] TUESDAY i/ . v 7 ~ “
♦- . ■ 4_ mo. fls M c„„ sirifle}
ynu stuiuiU*
fcOBEBCTED WeEUCY.]
ease;
\ D. c.
Tobacco, * • * 5 oo
Wheat, item,1 - - 1 20
Flour, suber-Sne, • • 6 Tp
Flour, fine, • - • 6 20
Corn, • « \ - . 3 35.
hemb, pet ton, • - 270 05
• • - 110 05
Bacon - - - 00 13
Whiskey • • - 67 00
LAW INTELLIGENCE.
la compliance with our promise to the
public, we now insert in this pa
per the case of Gordon’s adm’r.
V. «. the Justices of Frederick, in
which the important point was de.
»»:!ed that it is necessary, after a
judgment against an executor or
administrator as such, lo establish
a devastavit, by means of a second
suit, before an action can be main
tained on the administration bond.
Wltfx W. HENING,
WM: M UN FORD.
Richmond, May 9th, 1810.
Cordon’s Administrators,
A gainst
The Justices of Frederick.
In this case the decision of the court
5n Braxton vb. Winslow [1 Wash. 31]
was reviewed ; doubts having been en
tertnmed whether the position there
Jam down, 44 that the plaintiff must
4 shew by an action brought against
4 the executor that he was a creditor.
• and must prove by an action against
4 the executor and the verdict of a ju
4ry that he had commitud a devasta
4 vit,* before an action could be rr.ain
tained oo the administration bond, was,
under the actual case then before the
court, to be understood as requiring
an action of debt suggesting a devas
tavit, before an action could he main
tained against th». securities of the ex
ecutor or bdmiuistrator: in short
whether three suit* here necessary;
1st. A suit against the executor or ad
ministrator, as such, to establish the
amount of the debt due from the tes
tator or intestate; 2diy, A suit against
the executor or administrator, .uggi fi
ling a devas.avit; and a verdict nd
judcTr.eut therein for the plain till;
and odly, An action on the »<I minis.,
tration bond.
This was an action of debt brought
In the county court, in the name of
the justices of Frederick, at die in
stance of N. Cartnr.il, against the ad
ministrators of Gordon and their se
curities, in the atiav.nhtririon bnmi.l
The pleadings disclosed a ioimer
judgment recovered by the relator
[Caitrodl] ag.iinst the administrators,
to the pleas of payment and fully ad
mii»i-ter* d ; but it rod not appear th?t j
there had been any intermediate snit;
fixing a devastavit. 1 he jury found J
» verdict lot the plaintiff subject to the
opinion of the court, 4 whether an ac
tion on the administration bond could
4 iic maintained, without shewing in e
•vidcr.ce, in such action, a judgment
* in *n action of devastavit against
* the administrators.’ The county
court gave judgment for the defen
dants, which, on appeal to the District
Court w«b trveratd ; nr.d from that
judgment of reversal the defendants
[ihe administrators and their securi
ties] appealed to this court*
Cur. 4(lv. vult.
Id on lay, 26th March, 1810. The
Judges delivered their opinions,[judge
Jvoar.e not sitting in the cause, being
interested in another case, which in
volved the same point.]
Judgo Tucker. This was an action
upon au administration Ik »d against
the administrators and their securities
for a devastavit, in which it was con
tended to l>« necessary to review the
decision of this court, in the can* ol
ilrttto'i vs. Justices of Spor.sylvania
court, 1 Wa->n, 31.
The declaration [which is alledged
to be at the instance of Nathaniel
Cartmiit] is in the usual form of a de
dotation on a bond for the payment
oi m®ncy; tne tietemlants [without
demanding over of the condition of
ihe bond] pleaded jointly conditions]
performed and plene administrayir.
If this plea he regarded as the plea of
the administrators, it might have been
objected to, and ought not to have
been received, as the plea of the secu
rities, it was either an absurdity, or
implied in the former plea of conditi-j
ons performed. The plaintiffs, how-1
ever, without objecting or demurring,
[sea 3 East 5] to the plea, repli’l
ed that they ought not to be precluded
Irom having their action aforesaid a-]
gainst the said defendants [at the in
stance of the said Cartmill] by %py
thing in their plea alleged", because
they say, that the defendants the ad
ministrators did not cause to be made
a true and perfect inventory of the
goods. &c. of the deceased which
came to their hands: and did not ex
hibit Itn account of the same to the
court of Frederick, when thereto re
quired : and did not faithfully admin
ister the said goods and chattels in
this, that the administrators aforesaid
did not pay the amount of a judgment
ohtained in the said esurt by N. Cart
mill aforesaid plaintiff against the said
defendants for the sum of £ 72, &c. in
which suit the said admintratofs plea
ded payment and plene adnr inistravit;
and because the said administrators
have wasted the estate aforesaid; ard
this they are ready to verify, and pray
that the same may be enquired of by
the country, and the defendants like
_!_ nni • r » r • .
xtic jury luunu ior ine plain
tiff the debt in the declaration mention
ed, to be discharged by the payment of
the amount of the judgment in the repli.
ration mentioned, 4 If the court should
4 be of opinion that an action on the
‘ administration bond aforesaid, can
•be maintained without shewing in
‘ evidence in such action a judgment
4 in an action of devastavit against the
4 said administrators, John Kingan &c»’
4—'otherwise they find for the de
fendant.’ The coun y court gave
judgment for the defendants. The
district court reversed that judgment,
with costs both in the district and
county court; butwithout adding such
judgment as the county court ought to
have rendered. Mr. Munford for
the appellees, on the authority oi
Mantz vs- Hendley, [2 Hen. and
Munf. 318] admitted that this omis.
sion was an error in the judgment of
the district court, which this court
might amend, 'i he case of Bibb vs.
G author nr, [l Wash. 91] and what
was said by Judge Pendleton [l1
Gall, C5C] in the case of Cabell vs.
Hardwick?, are addi ional authori es
in i&vor ot Mr. JNiuoiord’s concessi
on j and shew what kind of judgment
the courts ought to pronounce in suits
upon executors’ bonds where the
plaintiffs may be entitled to a judg
ment.
But we are called upon by the coun.
sel for the tn ... ,1. I
cision of the special court of appeals
in the case oi Braxton, executor of
Claiborne against Winslow and othe*s,
justicts of Spoitsylvania county, [1
Wash. 31.] which was nn action <li
debt brought, as in the present ca e,
upon an executor’s bond against the
securities, to subject them to the pa>.
nu-nt of a bill of exchang*-. The suit
w>'^ instituted upon the bond at the
instance of the indorser of the bill of
exchange against the executor’s secu
rities without having previously ob
taintd si judgment against the execu
tor upon the bill of exchange ; here
the two causes differ ; the relator in
the present case having previously to
thecommencemen o. this suit obtained
a judgment (as is suggested in the
replication) Against the admininistra
lors for the sum of 72 to be dischar
ed by the payment of £ 36, with in
terest and cost*. But whether this
judgment was against them personally
or lor a debt ci tneir intestate, or whe
ther they were chargable by that judg..
mtnt tic bonis propriis, or only d« bo
nis testator!*, we are left in the dark
by the replication. But this pethap*
may he aided by the verdict. I shall
therefore pass it over for the present.
I o return then to the case oi Braxton
v*. Winelow.
After 03 cr the of bond and conditi
on, the defendants (securities) pleaded
conditions periormr d : the replication
traverse* the plea, fk charges a breach,
in the non-payment of the bill oi cx
change which was protested, of which
I the executor had notice, but had noi
paid it; having paid debts of inferioi
dignity after such notice, and wasted
■ the assets. The defendants rejoined,
and by protestation say the cxecutoi
[had not wasted the assets. The jury
found that there was £1114, due tc
the relator, upon the bill of exchange ;
and that the executor had wasted the
assets. And judgment was entered
for the penalty of the bond, but to be
discharged by the payment of £ 1114
as to this breach ; from this judgment
the defendants appealed.
Two questions were submitted to
the court; the first it is unnecessary
to notice. T hs second was,
* Whether the action could be main.
4 tained before a judgmeiit'frst had by
* the plaintiff against the represents
4 lives of the debtor and an execution
4 and return of nulla bona.*
1 he court in the discussion of this
question, is reported to have said;
4 The true question is, has the relator
‘brought himself within the act ? or
4 in other words does it appear from
4 this record, that he is a party injured
4 within the word* and meaning of the
4 act. A man who claims as a credi
4 tor and means to take the benefit of
4 this act [1748, c. 5,] must shew him
* *^ff to be a creditor; that the testa
4 tor left assets ; that they came to the
4 hands of the executor; that there
tt sumeiency 10 dicharge hit do
4 mand, or so much thereof after pay
4 ing debts of higher dignity'; and that
4 wasted the assets. Without this
4 the ex’or. concurrence there is no in*
‘jury done him.’ The report proceeds
thus:
4 An attempt was made at the bar to
4 shew that the paying of debts of an
4 inferior dignity, first, was of itself a
4 devastavit: and that a devastavit for
4 ever to trifling a sum, renders the
4 executor liable for the whole demand,
; although assets to the twentieth pari
4 never came to his hands. But neithei
‘ reason nor authority warrant this doc*
c trine : for, surely, if there be a suffi*
4 cicncy of assets, it is of no conse*
* quence in wh*t order they.^re paid.
* Hut the person who means to make
4 use of this act must shew himself to
4 be a creditor in the usual course of
4 law. It is not enough to produce a
4 mere document of a debt; he must
4 first institute a suit against the exe
1 tutor or administrator; because it is,
4 in the first instance, a dispute be*
4 tween creditor and debtor whether or
4 no a debt actually exists i a dispute,
* which the securities to such a bond
4 [who are strangers to the contract'
* are by no means competent to man*
4 age. It is a principle of universal
4 law that both parties shall be heard.
4 Let us put this case .* suppose A,
4 binds himself in a bond to B. to pay
4 hi in whatever sum C. owes him f B11
i U ,< _ r t i_ * * 1 J ,
W. u IWIIVUUIU 19 llltuucu
‘ by A, must not B first prove the sum
4 that C actually owes him ? Mr Wah
4 ler [the relator] therefore ought tc
• have shewn by an action against the
* execu or that he \yasa creditor.”
Thus far the relator in the present
case [if. the breach be sufficiently as.
signed in the replication] may be said
to h »ve proceeded. He has al.'edged
that he has obtained a judgment against
the administrators ; and I will suppose
it to be lor a debt due from their in
testate.
The court proceeds thus. He [the
relator] ' ought to have shewn by his
4 action against Moore the executoi
4 that he had committed a devastavit,
4 a suggestion of a devastavit may he
4 likened to a criminal prosecution j
4 and an executor shall not be prtsu
4 met! guilty of a devastavit, till it ii
found against him by a verdict/
Here then we are brought to the in
quiry, by what course of proceeding
this fact may be found against an exe
cutor by a verdict.
Anciently, if the sheriff return,
ed nulla bona, and also a devastavit tc
a fieri facias de bonis testatoris sued
out on a judgment obtain'd against ar
executor, It was sometimes the prac
ice to sue out a rapias ad satisfacien
dum against the executor $ or a fieri fa
ias de bonis proprii*. liut the bettei
and more frequent method was, tosui
out a scire facias anti obtain an awart
jf execution before issuing the fieri fa
t •*» de bonis propriis. But the moi
sual practice upon the sheriff’s returi
of nulla bona to z fieri facias, de boni
tcsiatotis, was to sue out a specie
writ of fieri fac<as, de bonis testatoris
with a clause therein, * et si tibi con.
stare poterit that the exec utor had was
ted the goods, then to Kvy de bonis
propriis. And this we are told conti.
nued to be the practice of the king’s
bench until the time of Charles the
first; but in the common pleas a prac.
tice had prevailed in earl*’ times upon
a suggestion in the special writ of fieri
facias of a devastavit by the executor,
to direct the sheriff to inquire by a ju
ry whether the executor had wasted
the goods, and if the juty found ht
had, then a scire facias was sued out a
gainst him; and, unless he made a
good defence thereto, execution was
awarded de bonis propriis, which prac
tice was, about the time of Charles
i Jhe first, recommended by the court of
King’s bench to be adopted in that
court likewise. It afterwards became
the practice of both courts, f or the s ike
of expedition, to incorporate the fieri
facias, inquiry and scire facias into one
(writ, thence called a scire fieri inquiry.
This writ recites the fieri facias de
bonis testatoris sued out on the judg.
ment against the executor, the return
of nulla bona by the sheriff and then
suggesting that the executor had sold
and converted the goods of the testa
tor to the value of the debt and darn
ages recovered, commands the sheriff
to levy the said debt and damages of
the goods of the testator in the hands
of the executor, if the*- hi* Irri.
ed thereof) but, if it should appear to
him by the inquisition of a jury tha;
• he executor had wasted the goods of
the testator, then the sheriff is to warn
the executor to appear, &c. [ ce Lilly’s
Entt 664, 666.] And if the sheriff o -
mits to give notice to the defendant of
ihe time the writ is to be executed, the
inquisition may be set aside for tha.
cau;e. [2 L’d Kaym : 1382. S eed v.
Layner: 1. Strange. 623. S* C.] And
this practice we are told is still fre.
quently adopted in England;, but in
• this country no case of the kind his
occurred within my own experience.
But the most usual mode of proceed
ing even in England i> by action oi
debt upon the judgment, suggesting t
devastavit; which we are told \va
substituted in lieu of the proceeding
by scire fieri inquiry, [2 L’d Riy.n’s ;
1974.] The foundation of thii action
j is a judgment obtained against the ex
jeeutor. A judgment against an ex*
j ecutor or administrator whether by
; default, [*hdt is, by neglect after an
appearance, for in England, no judg
, ment cau be in a personal action with
| out appearanct] [1 L’d Raym. 590.3,
Blac: Loir.: 316,] or upon demurrer;
or upon a verdict on any plea, pleaded
by the executor, except j lene admi
nistravit, or admitting asie s to such a
| sum, et rien ultra, is in Ei.gland, [an.,
perhaps in thi? cruntry belore the a^'
of 1806,c. 21] conclusive upon hi.n
that he has assets to satisfy such judg
ment i Hilt nnr nrl nf 1 709 r> 09
■ 33, [1 Rev. Code pa. 165] declares,
| that no security for any executor or
| administrator shall be chargeable be*
lyond the assets of the testator or intes
tate, by reason of any omission or mis
take in pleading or false pleading of
such executor or administrator. 'The
eflect of this provision as it relates to
the securities I shall consider hereaf
ter. Indeed, if the executor or admi
nistrator plead either a general or spe
cial plene adrr.inhtravit it is now held
that he is only liable to the amount of
the assets proved to be in his hands,
[2. Wash. 302 Booth v Armstrong ;]
though the caee was formerly taken to
be, that if any assets, however small,
were proved to be unadministered, the
plaintiff was entitled to recover his
whole denr^and from the executor: so
that now a judgment against an exe
cutor on a verdict upon plene admiui*.
travit is only an admission of as’ets to
the extent of assets which may be
proved to be in his hands. If Ihere
' fore upon a fieri facias de bonis testa
. toris on a judgment obtained again*
) an executor by either of the ways a.
1 bove mentioned, either no goods can
be found, which were the testa'.or's, oi
' not sufficient to satisfy the demand ; oi
[which is the same thing,] if th* exr.
I eulor will not expose them to the exe
: I cution t that is evidence of a devasta
' I v it. And the Knglish authorities in ge
' ‘ neral seem to tonsid’ r it as conclusive
’ I But sergeant Williams, in Ins no e on th
»j Case of iiancoc vs, Prond [1. Saundcn
I, 356] says, that, to a scire facias on
|‘ judgment, or action oi debt suggest! ig
adevastavit, the defendant cannot plead
>lene administravi’-^uit only cnn'rovirt
he devastavit—of which fact the judgment
ma sheriffs retur of nulla bona testat©via
>re almost conclusive evidence —and tbn
udgment will be against the defendant de
•Minis prnpriis. The mode of proceeding
is immaterial, it is said, becnase theexecu«
t'>r is entitled to the same defence in an
action of debt upon the judgment suggesting
a devastavit, as in the proceeding by scire
fieri inquiry. The usu <1 course in an ac«
tion of debt, is, first to sue out a fieri fa„
cias upon the Judgment obtained against the
executor, and, upon the sheriff’s return of
nulla bona, to bring the action and
s»ate hi the declaration the judgment
’he writ and returns^and, on the trial
io give in evidence the judgment, the fieri
facias, and the return, to prove th^casi’ea
1 here are certain rules equally applicable
l-,e Proceeding by scire fieri inquiry
to the action of debt m t dcras:uvit *
* return of a devastavit by the
sheriff, on the cxrcution issued upon the
first judgment against the executor, is hoc
conclusive, and therefore the executor may
traverse the devastavit, whether it be
lound by the inquisition, or returned by
the shenff. The form of traverse is indeed
(linetent. In the scire fieri inquiry tuc
executor precisely, and expressly deniew
the devastavit found by the1 mqu sition, be
takes issue upon it, [,ee, I,' Saund ; 336 *
L»lly s, Fnt. 666. 667 : 2. Saund ; 402.1
But, in an action of debt, the w:iu!e may ba
g ven in ev dence on miluebct, [I Saund
219 ; 2 Ld Rayna 1502,1 o.r on not guilty,
£.1. 814; 2. Ld Kay in 1533: 1.
lerui Hep. 463.
2dly. The executor cannot, in ei
ther Case nlead nlnrir nrliiiiniu^irw
or any other plea of the sa.ne nature,
which puts his defence upon want of
i3sets ; unless the first judgment were
ol assets in luturo ; or the declaration,
in the second action should suggest a
devastavit of assets which had accru
ed alter the judgment declai ed upon j
in both tvhich cases such pleas have
oeen held admissible [see 6, T. R. I
Mara v Quin ; and 2 Wash ,• 187, Rjf
fin v Pendleton: Mull: Ni: Pri: l(>»
l aylor v Holman and Kobins.j Fne.
reason is that such plea [except in th©
cases just mentioned] would be con*
tf'try to what is admitted by the judge
menc in the first action. And, if th©
truth were, that the executor had no
assets he should have set it up as a de
fence to the original action, which ha
ving neglected to do, he shall cot b©
permitted to say so afterwards. For
it is a general rule, that if a party do
not avail himself ot the opportunity
ol pleading matter in bar to the origi
nal action, he cannot afterwards plead
it, either in another action founded
on it or in a scire facias: And, if h©
did plead plene administravit to the
original action, and the judgment was
had upon a verdict, finding that he
had assets sufficient to satisfy the debt,
he is of course equally concluded from
saying that he had no assets. But, if
the verdict in the original action d>>
not find, upon the plea ol pleuc ad«
minitravir, that there are assets
sufficient to pay the debt; or if it do
not find the value of the goods in the
hands of the defendant, if not suffici
ent to satisfy the plaintifl’s demand,
m snrh 'i v.F/li.t ta t_ •
— — - uv uutci iaii;
and insufficient upon the ia^ue joined,
the judgment founded upon it, may be
reversed for error. [i Wash. 30 J
Booth v Armstrong.] And for the
3anio reason that the executor cannot
plead the want of assets [except in
the cases above mentioned] he cannot
give in evidence the want of assets on
the trial of the devastavit, cither in
the scire fieri inquiry or in the action
on the devastavit; nor even upon a
writ of inquiry after judgment by de
fault in the original action, according
to the practice in E gland. Sec. 1
Saund; 219 note 8. Wheatly v Lane,
in which theedito ,sergeant Williams,
uas given a most copious and satisfac
tory view of this subjec*.
Such .appears to be the is idr'a
course of proceeding against an execu
tor, in England, in order to chargs
him personally for a devastavit; and
such the course by which he may de
fend himself against the charge;
ind in my opinion they will justify
what is reported to have been s.ud by
the court, 1 Wash; 33 ; cx.cot.u
• shall not be presumed guil y of a
• devastavit till it is found again*- him
• by a verdict/ The action of debt
ipon the first judgment, is the cie.u
;*t, simplest, and most uoexcepti
>nable course of procediag, be earn so
-he declaration, in such an action must
' et forth th-j whole of the plaintifT’a
-ase, and give tha executor notice of
the particular charge against him.
. , Whereas in an act vox of dobt 0,-cn the.