Iglehart v. State ex rel. Mackubin

Eahle, J., delivered the opinion of the Court. ' The controversy between these parties, arises from an action by the appellee against the appellant, as a surety in the testamentary bond of William, Warfield, executor of Thomas Warfield, to recover the amount of a judgment obtained against the executor. The judgment was appealed from, and pending the appeal the executor died, not leaving sufficient estate to pay his debts. All this matter is set forth at large in the replication, as well as an administration de bonis non, on the unadministered estate of Thomas Warfield, which amounted- to a very trifling sum, wholly inadequate to the payment of the appellee’s judgment. Tb this replication the defendant, now the appellant, put in a rejoinder, {ante 240) which drew from the adversary pleader a general demurrer, and its legal sufficiency is the first question to be decided by this Court. This rejoinder is clearly not to be received as a general plea of nulla bona devenerint ad manus, extending over the whole time from the death of the testator to the death of the executor for its relative expressions, “nor at any time thereafter,” evidently indicate a particular point of time, when the executor was without goods or chattels with which to pay the debt, as they imply a period of time, when he had such goods and chattels. We can consider it only as a plea of plene administravit, or a substitute for such a plea, and so considering it, the plea appears to us to be materially defective. The point of time, when the executor was without goods or chattels to answer the demand against him is not specified, and is left in uncertainty and doubt; and the plea omits the words “ and that he had not any goods or chattels of the testator, on the day of issuing out of the original writ, or ever after,” which words are essential, and without which, it is bad on demurrer. 2 Saund. Rep. 216, note 1. A general demurrer having been put in to the rejoinder, it became the duty of the Court below, to look to, and adjudicate upon all the prior pleadings in the cause, and presuming they did so, we proceed in the next place to examine the re [245] plication in the record, and give our ideas of it. The matter of this plea is ample, comprising all that is made requisite by the act of 1720, ch. 24, with which we have carefully compared it; and it appears also to us to be well pleaded. The fieri facias was arrested by the appeal, and no return of course was made of nulla bona, but its equivalent is fully stated, and satisfactorily demonstrates, that the creditor was remediless by any other reasonable means, save that of suing the testamentary bond. Our judgment must consequently be in affirmance of the judgment of Anne Arundel County Court; yet before we leave the case, we think it right in a short way to express our opinion on a point argued before us, which is closely connected with this subject, and is interesting to the public to be settled. The confession of a judgment by an executor is conclusive on him, as well as to the debt confessed, as to the sufficiency of the assets to pay it; but what legal effect it has on the rights of his surety, in the testamentary bond, is the question to be solved ? Not being a party to the judgment, he cannot be concluded by it, although his liabilities depend on the acts and confessions of his principal. It seems to us, therefore, that in determining his rights, the judgment against the executor, ought to be considered to have but a prima facie influence, either as to the debt recovered, or the sufficiency of the assets to pay it. As to him it is nothing more than the declarations or confessions of the principal, clothed with legal solemnities, and should only be deemed in all respects correct, until the contrary is made to appear. This opinion is in accordance with Drummond vs. Prestman, 12 Wheat. 519, and apparently so, with a case there cited, from 15 Massa. Rep. 6, which book unfortunately we have been unable to procure. It is opposed, however, to Beall vs. Beck, 3 Harr. and M'Hen. 242; unless that case is to be understood, as construed by the Supreme Court of the United States in Drummond vs. Prestman, in which sense we acknowledge its authority. JUDGMENT AFFIRMED.