Opinion · Supreme Court of North Carolina
Chairman of Washington County Court Ex Rel. Armistead v. Harramond
11 N.C. 339
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1826-06-05
- Topic
- bankruptcy
HaIiT>, Judge. — The judgment obtained against the Defendant’s intestate, (Harramond) as well as that obtained against Harramond himself as administrator, is evidence of a debt due from his intestate, and he is bound by sucli evidence. The securities of Harramond, the other Defendant, are not concerned in interest, whether such debt is due or not; because if the assets are not liable to creditors, they are subject to (lie claims of legatees 5 and tiie administrator Harramond, is as much *341 bound for their faithful administration in the one case, as in the other, and it is only for the faithful administra- v tion of'the personal estate by the administrator, that his securities are bound. But although the judgment against the administrator is evidence against him, of a debt due by the intestate, and is evidence also of assets in his hands to discharge it; and although for the reason before given, it is also evidence”of a debt due, as far as relátes to his securities, yet it is not evidence against them that lie has assets to discharge it, and thereby subject them to the payment of the debt, in case nulla bona is returned on ah execution against the administrator. Whether the administrator has wasted the assets or not, is an enquiry in which the securities are interested, and the judgment ought not to be introduced as evidence of the affirmation, because they are neither parties or privies to that judgment. This principle was laid down in McKellar et. al. v.
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- 4 opinions
2. But if the administrator has returned an inventory, such inventory isprima facieevidence against the securities of assets to that amount.
This action was brought upon the bond, and upon the trial beforeNash, J., the real plaintiff, after proving the bond, gave in evidence the record of a judgment obtained by him against Fessenden (340) in his lifetime, which was objected to, but received by the court. He further produced the record of a judgment obtained by him on the judgment last mentioned, against Harramond as administrator of Fessenden, on which an execution had issued against the goods and chattels of Fessenden in the hands of Harramond, which was returned"Nulla bona."At the succeeding term the plaintiff and Harramond corrected by an entry on the record a mistake which had been made in the calculation of the amount of the judgment against Harramond, analiasissued for the amount as amended, and was returned"Nulla bona."Plaintiff's writ issued before this last execution was returned.
The plaintiff further produced the inventory returned by the defendant Harramond as evidence of assets in his hands.
The defendants Potter and the administrators of Webb offered in evidence certain bonds, notes, and open accounts against Fessenden which, as they alleged, Harramond had paid before he had any notice of the judgment against his intestate. The evidence was rejected, and the court instructed the jury that the record of the judgment against Harramond was no evidence against the other defendants.
The jury found a verdict against all the defendants, and the case stood here upon a rule to show cause why there should not be a new trial.
But although the judgment against the administrator is evidence against him of a debt due by the intestate, and is evidence also of assets in his hands to discharge it; and although, for the reason before given, it is also evidence of a debt due, as far as it relates to his securities, yet it is not evidence against them that he has assets to discharge it, and thereby subject them to the payment of the debt, in casenulla bonais returned on an execution against the administrator. Whether the administrator has wasted the assets or not is an inquiry in which the securities are interested, and the judgment ought not to be introduced as evidence of the affirmation, because they are neither parties nor privies to that judgment. This principle was laid down inMcKellar v. Bowell, ante, 34.
But as to the question of assets, I think the securities are boundprimafacieby the inventory returned by the administrator. They have stipulated in the administration bond that the administrator shall return a true and perfect inventory of the personal estate, and that he shall well and truly administer it according to law. This is for the benefit of creditors and legatees, and when it is done, it should be evidenceprima facieagainst them of assets to that amount, as evidence of the faithful administration of such assets would be evidence for them.
InChairman v. Springs,10 N.C. 43, the judgment was certainly evidence to prove that a debt was due from the estate of Henderson, the intestate, to the plaintiff; but it was not admissible against the defendants, the securities of the administrator, to prove the fact either that the administrator had assets or had wasted them; because, if this was the case, they were liable for the amount; and that fact ought not to (342) be proved by a judgment and proceeding to which they were neither party nor privy; and it appears that it was in part offered in evidence for that purpose, and that that was the reason why an appeal was taken to this Court; for it does not appear that any other evidence was offered to prove assets in the hands of the administrator, or that he had wasted them. It is stated in the manuscript returned to this Court that the judgment, withother evidence, was offered, etc., but it does notPage 153appear what that other evidence was; we cannot take it for granted that it established assets in the hands of the administrator, and that the judgment was offered only to establish the fact that a debt was due. If this was the case, it was admissible, but not to prove assets in the possession of the administrator, or that he had wasted them. For these reasons, I think the rule for a new trial, etc., should be discharged in the present case; the judgment was evidence of the debt, the inventory evidence of assets, etc.
The rest of the Court concurring, Affirmed.Cited: Jones v. Biggs,33 N.C. 413;Strickland v. Murphy,52 N.C. 244;Bond v. Billups,53 N.C. 424;Brown v. Pike,74 N.C. 534;Lewis v. Fort,75 N.C. 252;Badger v. Daniel,79 N.C. 387;Speer v. James,94 N.C. 424;Grant v. Reese,94 N.C. 724;Morgan v. Smith,95 N.C. 400;Leak v. Covington,99 N.C. 562;Brown v. McKee,108 N.C. 393;Miller v.Pitts,152 N.C. 632.