State ex rel. Sprigg v. Jones

Le Grand, C. J., delivered the opinion of this court. This is an appeal from the decision of the Superior Court of Baltimore city, sustaining the demurrer of the appellee to the replication of the appellant to the plea of the appellee, under the following circumstances: This proceeding commenced under the act of 1720, chapter 24, entitled, “An act to restrain the rigor of prosecutions on [92] administration or testamentary bonds.” As the act is short., we incorporate it, that our opinion may the more distinctly appear. Its preamble and enactment are, as follows: “Whereas it is represented by some of the justices of the provincial court, that a most oppressive and pernicious practice is introduced of putting testamentary and administration bonds in suit in the provincial court for the non-payment of small debts recovered in the county courts, without ever suing out. writs of fieri facias or other executions to affect the estate of the deceased in the executors’ or administrators’ hands, ok without any insufficiency of such executors or administrators, whereby the act, entitled, an act to restrain the ill practices used by sheriffs in taking goods byfieri facias and selling them by venditioni exponas, is entirely evaded so far as it relates to executors and administrators, and the person and sureties of such executors. and administrators are affected by such suing the said bonds, instead of the effects of the deceased; for prevention whereof for the future: “Be it enacted,” «fcc., «fee., “That it shall not be lawful for any creditor or creditors to prosecute any such administration or testamentary bond for any debt or damages due from or recovered against any testator or intestate, or their effects, before a non est inventus on a capias ad respondendum be returned against the executor or administrator, or a fieri facias returned nulla bona by the sheriff of the county where such executor or administrator lives, or where the effects of such deceased lies, or such other apparent insolvency or insufficiency of the person or effects of such executor or administrator, as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other reasonable means save that of suing such bonds, on pain that such person or persons that shall cause such bonds to be sued contrary to the true intent and meaning of such act, shall be condemned in full costs of suits, to be adjudged by such provincial court to the defendant or defendantsyhat shall be so sued, against the person or persons that shall cause the same to be sued, and shall award execution thereof as usual in other cases. “ And be it further enacted, as aforesaid, That it shall and [93] may be lawful for tbe defendant or defendants in such suits to give this act and the special matter in evidence without specially pleading the same; any law, statute, usage or custom to the contrary notwithstanding.” The plaintiff in this action, on the 28lh of August 1852, commenced an action of debt, in the Superior Court of Baltimore city, against the defendants, upon the testamentary bond of Mary J. Jones, executrix of Andrew D. Jones. The declaration is in the usual form, setting out tbe breaches. The defendants pleaded specially, substantially as follows: that whilst they admit the matters and things charged and averred against them in the declaration, they say, that after the return of the writ of capias ad respondendum “non est ” as against Maty J. Jones, by the sheriff of Baltimore county, as alleged in said declaration, the said Mary Jane Jones didy appeared in the said court, to which the said writ was made returnable, and at the same term thereof, to wit, on the 12th day of August, the said Mary filed her plea to the said declaration, of all which plaintiff had notice, and afterwards, on the 30th day of November 1852, filed its replication to the plea, and that the case, on such pleading, is now pending, &c. To which plea the plaintiff replied, that after the return of “non esi,” on the 14th day of July 1852, the court adjourned until the 27th day of October of the same year, and when the appearance and plea of the defendant, Maiy J. Jones, was made, tbe said court was not in session. To this replication tbe defendants demurred and tbe court sustained the demurrer, from which decision is this appeal. On behalf of tbe appellant it is contended, that a return of “ non est ” as against an administrator, under the act of 1720, ipso facto, gives the right, never thereafter to be questioned, to sue the administration bond. In this opinion we do not concur. In the case brought to our view by the pleadings in this one, it. appears, that although Mary J. Jones had been returned non, est, nevertheless sbe appeared at the same term and pleaded, and that her plea was replied to by the plaintiff in this action, and that the suit is still depending. Apart from all considerations growing out of tbe general [94] law, we think, under the act of 1720 itself, the appellant has clearly no case. That act was designed, if there ever was one, as a remedial statute, and as such ought to be liberally construed. It was passed — to use its language — to do away with a “most oppressive and pernicious practice;” in other words, to prevent the property of sureties being taken to satisfy the debts of the principal, when such principal had sufficient property to satisfy them. And although it authorises the institution of a suit against the sureties on a testamentary bond after the return of a non est against the administrator, it does not, therefore, necessarily follow, that the administrator cannot appear voluntarily in the court to which the writ is returnable during the term, or on the same day, but at a later hour of that day, on which the sheriff makes his return. Before the adoption of the present constitution of the State it was the uniform practice of sheriffs to have their amercements stricken out when the party was produced, if at any time during the term. It was all the party had a right to demand. The body of the defendant was produced to answer. And surely under a proceeding commenced under an act passed to “restrain'’’’ the “rigor ^ of proceedings, it is not, and cannot be a too liberal construction, to allow to sureties the privilege which would have been granted to the principal. The purpose of the act is transparent. It is nothing more than this: to make the principal pay instead of the surety. In the case before us the appellant is in no way damaged. Had Mrs. Jones been returned “summoned” on tire first day of the term to which the capias was returnable, instead of non est, the appellant would be in no better condition than it is now — her appearance during the term, and pleading, and its replication, gives to the State all the advantage which either justice or a fair construction of the act of Assembly entitles it. A reference to the authorities cited in argument would show conclusively, that the appearance of Mrs. Jones was in sufficient time. We have forborne to notice them, because the very act under which this proceeding is professedly had, is too plain, in our opinion, to admit of a serious controversy as to its true meaning, liberal and just spirit. [95] The replication relics on the fact that Mary J. Jones appeared to the suit against her at a time when the court was not only not in session, but had adjourned from a day preceding to one succeeding the entry of the appearance. We do not think such an appearance can be entered. The clerk has no power to receive the appearance and make the entry when the court is not in session. But if there was any such irregularity it should have been corrected by a proper proceeding in that case. The defendant relies on the appearance having been properly entered, and the plaintiff cannot, as we think, aver against the record. Although the defendant may appear voluntarily, yet if the suit on the bond shall be commenced before the appearance is entered the plaintiff cannot be thereby barred of its right to prosecute that suit. The return of non est gives the right to sue the bond, and when that writ is issued the appearance cannot arrest the proceeding. Judgment affirmed.