Johnson v. Hawkins

Stevens, J. Debt by James Hawkins against Julius Johnson, Charles Brown, and Timothy Moses, administrators of the [460] estate of Benjamin Vanator, deceased, on a writing obligatory made by the deceased in his life-time, for the payment of the sum of 860 dollars to the plaintiff The damages laid in the declaration for the detention of the-debt are 100 dollars. The defendants'pleaded two pleas: first, that the-supposed writing obligatory was not the deed of the deceased; and, secondly, plene administravit. Issue was joined on the first plea. To the second plea, a replication denying the plea and averring that there were assets to the amount of 1,000 dollars, was filed and issue joined thereon. The verdict was as follows: “We of the jury find for the plaintiff the debt in the declaration mentioned, and assess his damage at 481 dollars and 60 cents, making in the whole the sum of 1,341 dollars and 60 cents.” A motion for a new trial wa-s made, and overruled, and the following judgment rendered: “If is therefore considered by the Court, that the plaintiff recover of the defendants the sum of 860 dollars the debt, and 481 dollars and 60 cents damages, making in the whole the sum of 1,341 dollars and 69 cents, as by the jurors aforesaid in manner and form aforesaid assessed, and that he recover his costs.” The judgment in this case, being de bonis propriis, is erroneous. Neither of the pleas can be considered false within the defendants’ knowledge. However, if this was the only error, time might be given for the Court below to amend that error. Short v. Coffin, 5 Burr. 2730.—King, Adm'r. v. Anthony, Adm’r. May term, 1828. The verdict is also erroneous, being for a greater sum in damages than is'laid in the declaration. The Court below ought to have set it aside, and granted a venire de novo, unless the plaintiff would have'remitted the excess of the damages. And this Court,- if asked, might give time for the remittitur to be moved and entered in the Court below, if there were no other errors. 1 Sellon’s Practice, 481.—Hoits v. Molony, 2 N. Hamp. Rep. 322.—-Harris v. Jaffray, 3 Har. & John. 546.—Bank of Kentucky v. Ashley et al. 2 Peters, 329.—Cro. Jac. 146.—Hob. 178.—Barnes, 17.—3 D. & E. 349, 659, 749, &c. The verdict is also further erroneous. On the issues of non est factum and plene administravit, the jury finding both issues for the .plaintiff, shpuld have not only found the debt in the declaration,' and' assessed the damages for Ihe detention thereof, but should havé also found the amount of ibe'assetsin [461] the bands of the administrators, they being liable no further than for the amount in their hands. Fairfax’s Executor v. Fairfax, 5 Cranch, 19.—Siglar, Adm’r. v. Haywood, 8 Wheat. 675.—King, Adm’r. v. Anthony, Adm’r. May term, 1828. Vide, also, statutes of the state of Indiana. Kinney, for the plaintiff. Judah, for the defendant. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.