#### Pulliam v. Winston and Another.

April, 1834,

Richmond.

(Absent Brooke and Brookesbkouqh. J.)

Administrators*- Sale- Bond tor Proceeds — Assets.- A bond taken by an atlm'r for proceeds of his sales of his intestate’s estate, is to be looked upon, in equity, as the property of the estate ; at least, until the adm'r’s accounts are settled, and he is found in advance to the estate.

Same- Same — Same—Set-Off by Obligor —An obligor in such a bond, cannot set-off debts due him from the adm’r individually, against the demand on the bond, either at law or in equity ; nor can he set-off debts due him from the intestate, nor his claim as one of the distributees of the intestate’s estate ; since to allow such set-offs, would involve the necessity of taking an account of the assets, in every case in which the adm’r asserts a demand on behalf of the estate, and might subject the adm’r to a devastavit, if a mistake should be made.

Injunction — Dissolution—Dismission of Bill — .Statute Application.†-The statute 1 Rev. Code, ch. 86. § 60, directing the dismission of bills of injunction, at the next term &c. after the dissolution of the injunction, unless canse be shewn to the contrary.— does not apply to cases in which the bill claims other relief besides the injunction.

Pulliam exhibited his bill against Winston and Scott, in the county court of Hanover in chancery, stating, that Pulliam executed his bond to Scott as administrator of Richardson, for 47 dollars, for the hire of slaves of Richardson’s estate, which bond Scott assigned to Winston, who had brought a suit upon it, and recovered judgment on the law side of the court: that Pulliam had just set-offs against the claim, of which he was preparing to avail himself at law, *but the judgment was *128recovered by surprize (setting forth the circumstances of the surprize): that Scott, in his own right, was justly indebted to Pulliam about 29 dollars, and Pulliam had just claims against him as administrator of Richardson for simple contract debts of the intestate, for a further sum, which together with the 29 dollars due from Scott himself, exceeded the amount of the bond on which Winston as the assignee of Scott had recovered judgment against Pulliam. And the bill insisted, that these discounts should, at any rate, be ascertained in equity, and set-off against the judgment; but further, that Scott having taken Pulliam’s bond for the money due Richardson’s estate, he could only assign it in payment of a debt due from that intestate’s estate; that Scott, in fact, assigned it to Winston, who had full notice that it belonged to Richardson’s estate, for his own individual benefit; and that this assignment was fraudulent as to Richardson’s distributees, and void. The bill then alleged, that Pulliam was a distributee of Richardson, and entitled to the twenty-eighth part of the surplus of his personal assets, and that he was entitled to set-off this claim also against the bond assigned to Winston, but that Scott had not yet settled his accounts of administration. The prayer of the bill was, that the discounts above specified should be ascertained and set-off against the judgment recovered by Winston as assignee of Scott ; that Scott should be compelled to settle his accounts of administration of Richardson’s estate; that Winston should be injoined from proceeding to execute his judgment at law; and general relief.

Scott, in his answer, admitted, that Pulliam held bis note for 21 dollars; but he said, that, at the time Pulliam gave him the bond for 47 dollars which he had assigned to Winston, he agreed, that he would not insist on setting off the debt Scott owed him against that bond, because he owed another debt by bond to Scott as administrator of Richardson, equal to the debt due from Scott individually to Pulliam. He did not admit, that Pulliam had any just claim as a creditor of Richardson’s estate. As to his administration of Richardson’s estate, he admitted, that his accounts *were not yet settled; but he said, the estate was, for the present, in his debt; and that his letters of administration had been revoked, and administration de bonis non committed to the sheriff of Hanover. He was ready to settle his accounts of administration, and to pay the surplus in his hands, to the distributees of Richardson ; but, he said, he did not admit that Pulliam was one of them.

The defendant Winston answered, that he had acquired the bond fairly, for a valuable consideration, and that he knew nothing of the transactions mentioned in the bill.

The county court, on motion of the defendants, dissolved the injunction; and, at the second term afterwards, no cause being shewn to the contrary, dismissed the bill with costs. In thus dismissing the bill, the court proceeded under its understanding of the provision of the statute, 1 Rev. Code, ch. 66, *l*60, p. 208.*_

Pulliam presented a petition to the circuit superiour court of Hanover, for an appeal; which was allowed: but that court, upon the hearing, affirmed the decree. And thereupon, he applied to this court for an appeal ; which also was allowed.

Lyons, for the appellant.

Robinson, for the appellees.

*

Administrators. — See generally, monographic *note*on “Executors and Administrators'’ appended to Rosser v. Depriest. 5 Gratt. 6.

†

lujunction — Dissolution—Dismissal of Bill— Statute —Application.—In Adkins v. Edwards, 83 Va. 308, 3 S. E. Rep. 435, it was held that Code 1873, ch. 175, § 14 (Code 1849, ch. 179, §14, Code 1887, § 8446), applies only to a pure bill of injunction, and not to a case in which the bill prays for other relief besides the injunction. The principal caséis cited as authority for this statement.

In Noyes y. Vickers, 39 W. Va. 33, 19 S. E. Rep. 430, it is said : “The frame of this bill, its scheme, and prayer for relief, give it a standing place in court; show cause against its dismission, and for its retention, with a distinctness that nothing extraneous could intensify. It is not a pure bill of injunction, but an ordinary bill seeking to enforce a judgment lien, and the injunction was a mere incident auxiliary to that end ; and § 13, ch. 133, of the Code, does not apply t.o such cases. *Pulliam v. Winston,*5 *Leigh*324 ; 1 Bart. Oh. Pr. 464.'’ West Virginia Code, ch. 133, § 13 (Acts 1883, ch. 78), provides that where an injunction is wholly dissolved, the bill shall be dismissed with costs, unless sufficient cause be shown against such dismission.

And in Alford v. Moore, 15 W. Va. 606, it was held that § 13. ch. 133, of the Code, refers to orders made upon motions merely to dissolve in injunction causes, where the bill must necessarily fall if the injunction is dissolved. As authority for the proposition, Singleton v. Lewis, 6 Munf. 397, Hough v. Shreeve, 4 Munf. 490, and *Pulliam v.*Winston, 5 *Leigh*324, are cited.

*foot-note*to Winston v. Midlothian C. M, Co., 20 Gratt. 686; Muller v. Bayly, 21 Gratt. 531, where the principal case is cited to the point that § 4, ch. 179. of the Code 1860 (Va. Code 1887, § 3436), declaring the jurisdiction of injunctions, applies only to a pure bill of injunction and not to a bill seeking other relief, to which the injunction sought is merely ancillary.

*

The statute provides, that “in all cases, where hereafter any injunction shall be wholly dissolved, the bill of the complainant shall stand dismissed, of course, with costs, unless sufficient cause is shewn against its dismission at the next term, where the same shall be in the district courts of chancery, and wh ere the same shall be in any of the inferiour courts, at or before the second court, let the same be monthly or quarterly thereafter. And it shall be the duty of the several clerks of the said courts to enter such dismission on the last day of the terms aforesaid.” — Note in Original Edition.

TUCKER, P.

The dissolution of the injunction was altogether proper. The injunction ought never to have been granted, for the reasons assigned by the president of this court, in White, Whittle & Co. v. Banister’s ex’ors, 1 Wash. 166,which reasons apply as well to the case of a distributee *as to that of a creditor. See also Brown’s adm’x v. Garland, 1 Wash. 221, and Dale &c. v. Cooke, 4 Johns. Ch. Rep. 11, 13. The bond, in this case, though taken to the administrator himself, and therefore, at law, considered as his own bond, is to be looked upon, in equity, as the bond of the estate, until the accounts, at least, are liquidated, and he is found to be in advance; which, here, the plaintiff himself denies. The set-offs, therefore, against the defendant Scott, of his individual debts, were clearly inadmissible. And, as to the set-offs of demands against Richardson’s estate, they were inadmissible as has been already said, for the reasons given in White, Whittle & Co. v. Banister’s ex’ors. If a purchaser at the sale of a decedent’s estate, desire to set-off a claim, which he has as a distributee, he ought to institute his suit for a settlement and distribution in due season, so as to ascertain that there will be a balance in his favor, in time to meet the expected judgment for the amount of his purchase. If, on the contrary, he may wait until there is a judgment against him, and may then tie up the recovery until complicated accounts of administration may be settled, in order to discover whether there will be a distributable surplus, the executor may be made liable for a devastavit, and creditors may be unduly delayed in the recovery of their demands. Every purchaser at a sale of the decedent’s estate, ought to understand, that he is to pay up the amount of his purchase, unless the executor expressly agrees, that any claim he may have against the estate, shall be discounted. Therefore, the injunction was properly dissolved.

But there can be no question, that this decree must be reversed, upon the authority of the cases of Hough v. Shreeve, 4 Munf. 490, and Singleton v. Lewis, 6 Munf. 397. In those cases, it is decided, that the provision of the statute, under which the county court proceeded in dismissing the bill, does not apply to a bill which is not merely a bill of injunction, but has other objects besides those of injoining a judgment at law. Now, here the bill alleges, that the plaintiff is one of Richardson’s *129distributees; and prays, that the administrator may be compelled to settle his accounts, and *for all proper relief. Here, then, is a bill which has in view other objects besides the injunction. It should not, therefore, have been dismissed as a matter consequent of course on the dissolution of the injunction. It should have been regularly proceeded in to a hearing. It is true, that the bill is obviously defective for want of parties. Only one out of twenty-eight distributees, according to the plaintiff’s own shewing, is before the court. But though if a bill shew no cause of action, this court ought not to reverse a decree of dismission, however irregular, yet if it shew a cause of action, an irregular dismission, without a hearing, should be set aside, notwithstanding the bill be defective in form or for want of parties. For had it not been improperly and prematurely dismissed, the plaintiff, before the hearing, would have been entitled to amend, by giving form to the bill, or by adding proper parties. I am, therefore, reluctantly compelled to say, that, in my opinion, both decrees must be reversed for this error, and the cause sent back to the county court, with directions to redocket it, and send it to the rules for further proceedings.

CABRHH and CARR, J., concurred.

Decree reversed.