Byrd v. State ex rel. Ashley

Mr. Justice Wai/kbr delivered tbe opinion of tbe Court. Bichará C. Byrd was appointed administrator of tbe estate of James B. Gladish, deceased, and entered into bond witb bis co-defendants, bis securities, for tbe faithful performance of bis duties as sucb administrator. Subsequently, upon a settlement witb the Probate Court, be was found to be indebted to tbe «estate $1,118. And, thereupon, tbe Court revoked bis letters of administration, appointed Joseph O. Ashley administrator de bonis non of said estate, and made an order directing Byrd to pay tbe $1,118, so remaining in bis bands upon settlement, over to Ashley bis successor in administration. To recover this sum of money, Ashley lias brought this suit upon tbe official bond of Byrd against himself and securities. Tbe securities severally filed pleas in abatement. First: That separate writs of summons were issued to Pulaski and Jefferson counties-; that t-o Pulaski, con-taing tbe names of two of tbe defendants, who were ordered to be summoned, when, in fact, but one of them resided in that county. Tbe second plea was, in substance, thatsuithavingbeen commenced in Pulaski county, a separate writ, -issued to Jefferson county, against one of tbe defendants, who was a resident of that county, without averring in the declaration that sucb defendant resided in Jefferson county. There was also another plea, in abatement, filed by one of tbe securities, which, however, was intended to present substantially the same question. Tbe objection to tbe writs in this case, is not that sustained by this Court to tbe writs in tbe case of Hartley vs. Tunstall et al., (3 Ark. 119.) In that case, each separate writ was issued, and liable to be served upon all of tbe defendants, if found by tbe sheriff to whom directed. This was held to be oppressive and vexatious, and imposing unnecessary costs upon tbe defendants. But there is no such objection to tbe writs in this case. Tbe objection here is, in effect, that a defendant, resident of Jefferson county, is not bable to be served witb process out of bis county, and seems to be predicated upon tbe ground, assumed in tbe second plea, tbat where there are two or more defendants in the same suit, who reside in different counties, in order to avail himself of the benefit of the act which authorizes separate writs to» issue to the several counties in which the defendants respectively reside, the plaintiff must aver truly the residence of each of the defendants; so that, where several writs issue, they may, in this respect, correspond with the declaration; and, should the plaintiff fail to make such averment in his declaration, should the writs be issued to several counties, there would-be a variance or non-conformity of the writs to the declaration, which would be matter of abatement. However plausible this may appear, the practice in this State" has been different, under the sanction of the repeated decisions of this Court. It was held in the case of Dillard vs. Noel, (2 Ark. Rep. 449,) that no averment in the declaration as to the residence of either party is necessary; and also that a resident of one county may be sued in another; and more recently this decision was cited with approbation in the case of Ford vs. Hundley (5 Ark. Rep. 179.) After setting forth the condition of the administrator’s bond, the plaintiff avered that, upon settlement there was found to be a balance in his hands of $1,118, which he was ordered to pay over to plaintiff, and also a demand, on several different days, and refusal to pay. Byrd, by plea, traversed this allegation, at the several times set forth. To which the plaintiff demurred, upon the ground that the plea tendered an immaterial issue, because although there was a demand, and refusal avered, yet as such demand was not essential to the plaintiff’s recovery, that he was not bound to prove it,- and that no material issue could be formed upon it. ■ . In order to determine this question, it becomes necessary to consider the nature- of the defendant’s liability as administrator. He covenants to- do whatever might be required of him by law, or enjoined by the lawful order, sentence or decree of any court of competent jurisdiction. The Probate Courthad such jurisdiction, and, in the due exercise thereof, ordered him to pay the specific sum of money ascertained to be in his hands, and due upon settlement; whereby lie became liable to pay a specific sum, a debt due and payable to bis successor. No act, on the part of the plaintiff, was necessary to entitle bim to this money. He was as much entitled to sue for and recover it, as if it bad been a debt due directly to bis’ intestate; and if á demand was necessary, on bis part, to entitle bim to maintain an action against Byrd, upon the same principle, it would be necessary in all cases where administrators sue for debts due the estates of their intestates. It is the duty of the debtor to seek out bis creditor, and to make payment to bim; a readiness and willingness on bis part will not excuse bim. The debt being due, a right of action accrues to the plaintiff without any duty or act on bis part for its recovery, as well in the one case as in the other; and so well established is this doctrine that even if the Probate Court had directed Byrd to pay over the money upon the request of the plaintiff, the weight of authority is, that the action could well have been maintained without such request. Thus it has been held that, where a note or bond for the payment of money is made payable on demand, suit may be maintained upon it without demand. The commencement of the action is held to be a demand in law, and the only advantage to the defendant is that, in the absence of a demand before suit brought, he will be only chargeable with interest from the commencement of the suit.- Cotton vs. Revell, 2 Bibb. 101; Gore vs. Buck, 1 Mon. 209; Leather’s representatives vs. McGlasson, 3 Mon. 224. The demurrer was properly sustained to Byrd’s fourth plea. A plea of general performance of covenant has been repeatedly held by this Court demurrable. Martin vs. Royster et al., 3 Eng. 81. The remaining grounds of error is, that the damages recovered exceed the amount laid in the declaration. This objection is doubtless good in actions ex delicto, or where the action sounds in damages. But this was an action of debt upon 'a penal bond, and although, under our statute, breaches ¿re assigned and damages assessed, still the judgment is rendered in debt for the penalty of thejiond. The verdict of the jury is entered of record with a further judgment for execution for tbe damages assessed. Thus it will be seen that although there is an ascertainment of damages and an order for execution to levy them, still the form of the action and the judgment are the common law forms in debt, and in such action the recovery of the plaintiff is not limited to the amount of damages laid in the declaration. (1 Ch. Pl. 114, 339 418.) Judgment affirmed. Mr. Chief Justice WatKINS not sitting in this case.