Nall v. Haywood
ERROR to the Circuit Court of Tennessee. This was an action of debt, brought in the Court below by Haywood, the defendant in error, against Siglar and Nall, the plaintiffs in error, upon a judgment obtained against their intestate, William Nall, in the Superior Court for the District of Hillsborough, in the State of North Carolina, for the sum of 2980 dollars and 5 cents. The defendants pleaded, (1) Nil debet, and (2) Plene administravit. The plaintiff replied to the second plea, that the defendants have, and on the day of commencing this suit had, divers goods, &c., whereof they could have satisfied the plaintiff for the debt aforesaid. On the trial, it appeared by the accounts exhibited by the defendants, that a part of the intestate's goods and chattels remained in their hands unadministered. On which, the plaintiff's counsel moved the Court to instruct the jury, that the plea of plene administravit was, therefore, false, and that on that ground, the plaintiff was entitled to his verdict on the whole issue. The instruction was given by the Court, to which the counsel for the defendants excepted. The jury returned a verdict for the plaintiff, for the sum of 2565 dollars and 16 cents debt, and 4429 dollars and 53 cents damages, for the detention thereof; and also found, 'that the defendants have not fully administered all and singular the goods and chattels, rights and credits, which were of the decedent, and which came to their hands to be administered, previous to the issuing of the writ of capias in this cause, as the plaintiff in replying hath alleged.'Upon which, judgment was entered as follows: 'Therefore it is considered by the Court, that the plaintiff recover against the defendants 2565 dollars and 16 cents, the residue of the debt aforesaid, in form aforesaid assessed, and also his costs,' &c. And the cause was brought by writ of error to this Court. Feb. 4th.
Mr. Sergeant, for the plaintiffs in error, (no counsel appearing for the defendant in error,) made the following points, together with several others which it is not thought necessary to state, because they are not noticed in the opinion of the Court.
1. That the Court erred in the above instruction given to the jury.
2. That the verdict was erroneous, because it did not find what goods and chattels, rights and credits of the intestate, or what amount thereof, remained in the defendants' hands unadministered.
3. The judgment was erroneous, because it is against the defendants generally, and de bonis propriis, when it ought to have been de bonis testatoris.
Under the first point he argued, that the law was well settled, that executors are no further chargeable than they have assets, unless they make themselves so by pleading a false plea, i. e. such a plea as would be a perpetual bar to the plaintiff, and which they know to be false, as ne unques executor, or a release to themselves. But if they plead a former judgment by another person, et nil ultra, and the plaintiff replies per fraudem, yet judgment shall be de bonis testatoris. [a] The only plea hat can involve the defendent in personal responsibility, (except as above stated,) and that only for costs, is a plea disputing the debt. [b] Harrison v. Beecles, [c] is in point. The plea there was plene administravit. It was proved, that the defendant had assets, but of less amount than the plaintiff's claim. It was contended, that the plaintiff was entitled to recover the whole amount. Lord Mansfield decided, after consultation with the other Judges, that he could only recover the amount of assets proved, which has been the law ever since.
Upon the second point, if an executor plead plene administravit, and issue is joined thereon, and the jury find, that the defendant had goods in his hands, but do not find the value, the verdict is void for uncertainty. [d]
As to the mode of entering judgment against an executor or administrator, and afterwards proceeding thereon, he cited 2 Tidd's Pract. 842. 894. 929. 1017-1020. Feb. 5th.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
^a 1 Roll. Abr. 931.
^b this allegation 'hath not, nor on the day, &c. had,' &c. the defendant may give in evidence any due administration of assets. 2 Saund. 220. note 3. Chitty, ut sup.
^c Cited 3 Term Rep. 685. 690.
^d Co. Litt. 227 a. Fairfax v. Fairfax, 5 Cranch's Rep. 19. Booth v. Armstrong, 2 Wash. Rep. 301. Harrison v. Beecles, 3 Term Rep. 688, 689. note.
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