#### Pickett, &c. v. Stewart and al.

April, 1819.

(Decided. April 13th, 1819, and referred to by Judge Co alter. In the case of Miller’s executors v. Rice and others. Ante, p. 447.)

Equitable Relief— Judgment against Executor.*— Where a iudgment has been obtained against an executor, who, from the perplexed state of the assets, and other causes, was unable to plead at law, a court of equity will afford relief.

This was a suit brought in the Richmond chancery court, by Pickett, Pollard, Johnston and Sheppard, administrators of John Pendleton, deceased.

The bill states, that Pendleton died intestate in the year 1806, very much involved in debt: that, among the creditors were Pickett, Pollard and Jolmston, (the complainants,) whose claim was founded on a specialty: that, after they had examined the affairs of the estate, they found them involved in the greatest difficulties and uncertainty: for, although the said Pendleton had been engaged in business of various sorts, and had been the executor or administrator of various persons, it did not appear that he had kept a book of accounts, for thirty years: that, soon after the qualification of the complainants, many suits *were brought against them, as administrators, by the creditors, in different courts; some of which were founded on specialties, and others on simple contracts: that, among others, Norman Stewart, as assignee of Neil McCoull, brought a suit on a specialty, and recovered a judgment against them in November, 1807, for the sum of 1361. 17s., to be discharged by the payment of 681. 8s. 6d., with interest from the firs! day of September, 1806. The complainants aver, that they never had, at any time, any assets in their hands, out of which they could properly have paid the said debt: that, no plea of “fully administered,” was put in by them, to the said suit, for the following reasons: Nearly the whole of the said Pendleton’s real and personal estate, had been conveyed to different persons, to satisfy debts due from him. It was some time after the qualification of the administrators, before the sales took place, for the purpose of satisfying the specific liens on the said property, and after that, some time elapsed before the accounts could be completely liquidated. The administrators could not, with any degree of certainty, ascertain, what amount would remain to pay other debts, after satisfying the specific liens; and they could not, with any certainty, ascertain what debts would be recovered from others, on account of the said Pendleton, as his accounts were very uncertain, and found on loose slips of paper only. They then enter into a detailed account of the state of the assets, to confirm the foregoing statement. They allege, that they could not have put in the plea of “fully administered” to the suit brought by Stewart, even as to those assets, which had come to tlieir hands; because, there were several judgments obtained against the said Pendleton in his life-time, remaining unsatisfied, and some of them uncertain as to what was due, as accounts of payments made by him in his life-time were to be made up, in which, there was considerable difficulty, in consequence of the uncertainty of his memorandums. They then enumerate the claims, ’Hvhich will attach to the estate of the said Pendleton, on account of his administration on several estates, which had been committed to him *188in his life-time, and which were in a course of legal adjudication, the issue of which was uncertain; but which were afterwards decided against the administrators. They further allege, that their counsel in the case of Stewart, after putting in the plea of “payment by the intestate,” when the cause was about coming on for trial, informed them that he could not put in the plea of “fully administered,” while the affairs of the said estate were in that uncertain condition; and advised them, that they would be protected by the act of assembly, passed on the 13th day of January, 1807, “concerning the abatement of suits, and executors and administrators.” Under these circumstances the judgment aforesaid of the said Stewart, was rendered. On that judgment a writ of fieri facias was issued, and the administrators have paid the costs of the suit; but the debt itself and interest, they co'uld not pay, for want of assets. The said Norman Stewart, assignee of Neil McCoull, has since brought suit for the same debt against the complainants, upon a charge of a devastavit, and they were ruled into a trial in tjie absence of the counsel, who had attended to the greater part of the business, notwithstanding a motion for a continuance on this ground; and a judgment was recovered against the complainants, for the amount of the said debt, with interest and costs. On this judgment an execution issued, which was levied on the property of the complainants, and they gave a forthcoming bond. They aver, that they have not any assets in their hands, out of which the said debt can be paid. They therefore pray, that the said judgment may be injoined, until the subject can be investigated in a court of equity.

The court of chancery awarded the injunction.

Norman Stuart answered, that the judgment mentioned by the complainants to have been obtained against them *as administrators of John Pendleton, deceased, by the respondent as assignee of Neil McCoull, had been transferred to the said McCoull, for a valuable consideration. He disclaimed all knowledge or concern about the matters in dispute.

Neil McCoull states in his answer, that the complainants might have had relief at law; that if the estate of the complainants’ intestate had been as much involved as they represent, that circumstance might have been urged to the court as a reason for a continuance of the original suit; and if a motion to that effect- had been made and overruled, they might have had relief in a superior court, or at least in a court of equity ; or, if the complainants had shewn the difficulties and embarrassments mentioned in their bill, and that they had no assets, as they affirm, during the pend-ency of the said action against them, they might have applied to a court of equity to restrain proceedings at law, until they might have had a reasonable time to examine the situation of their intestate’s affairs; or might have compelled the plaintiff in that action, to take a judgment when assets; and thus have thrown the burthen of proof upon him, to shew at any future time, that assets had come to the hands of the administrators, sufficient to discharge the judgment. But, instead of this, they thought proper to rely on the plea of payment, and on this plea, judgment was rendered against them. If the complainants had no notice at the time the original judgment was recovered against them by Stewart, assignee, &c., of the existence of claims of superior dignity, sufficient to consume the assets, they were bound to discharge the said judgment, and plead the same in bar, to suits subsequently instituted. If they had notice prior to that judgment, (which they do not pretend,) they ought to have pleaded those claims in bar, shewn that they were sufficient to swallow up the assets, and have given a judgment when assets. The defendant contends., that the original judgment recovered against the complainants, upon *the plea of payment, is proof of assets in their hands, sufficient to discharge the same; and the return on the execution, “no effects,” is conclusive evidence of waste. But, it is too late, after a judgment has been obtained against them on a plea of no waste, to rely on such grounds for relief.

As to the pretence that the complainants were improperly ruled into a trial in the absence of their counsel, it was competent to a superior court of law to' correct the error. But the fact is, that they had counsel present in court, who had been long retained in the cause, and every way qualified to defend them._

On motion, the injunction was dissolved; and afterwards a motion to reinstate the injunction was rejected.

From this order of dissolution, an appeal was obtained on petition.

*

See monographic «ote on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

JUDGE ROANE,

April 13. — delivered the opinion of the court:

The court is of opinion, that owing to the peculiar and perplexed state of the assets in this case, making it difficult, if not impracticable, for the appellants to have pleaded in relation to them at law; and owing also to the absence of the principal counsel of the appellants, and the withdrawal of the other- at the trial in the second action, whereby the appellants were wholly undefended, and a verdict perhaps contrary to justice, obtained against them, without any negligence or default on their part, the order aforesaid is erroneous ; therefore, it is decreed and ordered, that the same be reversed and annulled, and that the appellees do pay, &c.

And it is ordered that the injunction awarded the appellants, and dissolved by the order aforesaid, be reinstated, and the cause be remanded to the said court of chancery, to have an account of the assets taken, if required, in order to a final decree.