#### Myrick, Administrator of Lundie, v. Adams.†

Argued January 30th, 1815.

1. Executors — Sale of Estate — Payment In Paper Money — Liability of Executor.‡ — An executor who sold the estate of his testator in March, 1781, taking bonds payable the 25th of December ensuing, and received, in payment, a quantity of paper money, a day or two after the bonds became due, was held responsible for the value thereof in March, 1781, because by virtue of the act establishing the scale of depreciation, which passed December 24th, 1781, paper money ceased, from and after the passing of that act, to be a legal tender; and if the executor had refused to receive it, the debtors would have been compelled to pay, in specie, the value of the paper money at the time of the contract, as fixed "foy tile SC3.I0.

2. Same — Same—Same—Liability of Co-Executor.— In this case, the paper money having been received by one of two co-executors, the decree, directed by this court, was against the estate of him only who received it.

3. Co-Executors — Joint Decree against. — It is error to render a joint decree against two co-executors, when only one is before the court.

4. Order of Publication — Proof of — Sufficiency.—Proof that an order of publication has been inserted in a newspaper two months, is not sufficient.

5. Same — Same—Same.—It should also be proved, that a copy was posted at the front door of the house in which the court is held.

In March 1795, Colin Adams and Edwin Adams, surviving residuary legatees of James Lundie, the elder, brought a suit in chancery in Southampton county court against James Lundie, junior, and Chislon Morris, executors of the said James Lundie, the elder. The object of the bill was to make the defendants account, at the rate of ninety for one, for 451761. 14s. 0d., paper money, which they had received of sundry persons who bought the personal estate of the decedent, at a s ale thereof, in March, 1781, on a credit till December 25th, in the same year, but which paper money was funded by the executors, and produced a specie certificate of 451. 3s. 6d., delivered by them to the plaintiffs.

The defendant, Chislon Morris, being returned no inhabitant, the suit was abated as to him. Yet an answer was filed, purporting to be the answer of both executors, bu,t sworn to by James Lundie, junior, only; in which it was alleged that the sum of 93841., part of the bonds taken at the sale in March, 1781, *155was received, by James Bundle, junior, a ■day or two after the 25th day of December, but the balance had been paid by the debtors before that day, and before the 24th of the same month, when the act of assembly, entitled, “an act directing the mode of adjusting and settling the payment of certain debts and contracts,”(a) (which took effect from its date,) was passed.

*The defendants insisted that the plaintiffs were indebted to them, according to a statement of accounts set forth in their answer ; and that, “if the said act of assembly was passed on the 24th of December, 1781, the effect thereof, in equity, would not impair the payment or the receipt of money during the month of December, 1781, (including which, the scale of depreciation applied,) or unless the same had been promulgated, or until the-day of-following its passage.”

The county court decreed that the complainants pay to the defendants the sum of 141. 16s. 7d., with costs : — from which decree the complainants appealed to the late high court of chancery, where it was reversed, and, the cause being retained for farther proceedings, sundry depositions were taken and filed.

Chislon Morris being dead, and James Dupree and Tabitha his wife, executrix of said Morris, residing out of this commonwealth, an order of publication was made against them as absent defendants, and published two months in the Petersburg Intelligencer ; as was proved by the affidavit of John Dickson, editor of that paper; — but it did not appear that a copy of the order was posted at the front door of the capitol according to law.

The cause was afterwards transferred to the superior court of chancery for the Williamsburg district, and, on the 10th of April, 1812, Chancellor Nelson, being of opinion “that the defendants ought not to avail themselves of a credit for 451761. 14s. Od., of paper money, paid by them into the treasury of Virginia, in the month of June, 1782, (and which the said James Bundie funded at the rate of one thousand for one,) because the said executors collected the said sum in paper money, after the period when paper money of every description ceased to be a legal tender, and that they ought to be subjected to pay the same, in specie, at the depreciation of ninety for one, that being the scale at the time the same was received by them,” decreed therefore, that David Myrick (against whom, as administrator of James Bundie the younger, the suit, which abated by his death, had *been revived,) out of the assets of the said James Bundie in his hands to be administered, and James Dupree and Tabitha his wife, executrix of Chislon Morris out of the assets of the said Chislon Morris in their hands to be administered, pay unto the plaintiffs the sum of 8031. 13s. lid., with interest on 4561. 15s. 9d., part •thereof, at the rate of five per centum per annum, from the 25th day of December, 1794, till payment; and that the defendants, out of the estates of their intestate and testator, if so much thereof they have to be administered, if not, out of their own estates, pay unto the plaintiffs their costs by them expended in the prosecution of this suit.

From this decree, an appeal was allowed and supersedeas awarded by a judge of the court of appeals, on the petition of David Myrick, administrator of James Bundie, junior.

Hay for the appellants.

Wickham for the appellees.

February 3d, 1815,

†

For monographic note on Process, see end of case.

‡

See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

(a)

 Oh. Rev. p. 147.

the president pronounced the following opinion of this court.

The court is of opinion that the decree, compelling the appellees (in the Court of Chancery) to pay the amount of the money funded, at the rate of ninety for one, (according to the scale of depreciation applied to the time of the sale of the property in the bill mentioned,) deducting therefrom only the value of the certificate received by the appellants, in said court, (as if the whole amount thereof had been received by the appellant’s intestate, after the 25th of December 1781, and in his own wrong,) is erroneous ; it appearing that only 9,3841. of the said sum was so received : and that the said court also erred in rendering a joint decree against the representatives of both of the executors, when it appears by the record that the representatives of Chislon Morris were not before the court.

This courtis further of opinion, that the decree of the County Court is erroneous, in not charging the appellant *with the said 9,3841. at ninety for one, which sum was received by the intestate of the appellant, after paper money ceased to be the currency of the country, as before stated. Both decrees are therefore reversed, with costs : and this court proceeding to make such decree as ought to have been pronounced by the Superior Court of Chancery, it is decreed and ordered, that the appellant, out of the estate of his intestate, in his hands, pay to the appellees 941. 17s. 8d. (being the amount of 9,3841. scaled at the rate of ninety for one, after deducting 91. 7s. 8d. the value at which the same was funded, and which has been received by the appellees,) with interest thereon from the first day of January 1782, till paid; subject, however, to a credit of 141. 16s. 7d. the amount of the decree of the county court; 91. 9s. 7d. of which is to be credited as paid on the first day of January 1782; and 51. 7s. Od. the residue, as being paid on the 4th day of March 1787.