Gilbert vs. Thomas et al.
bined with the co-defendants, or either of them, or any body else, or been guilty of any improper act whatever in connexion with the estate. Why, then, should the creditors interpose between him and his duties and privileges as administrator. They assign no reason-none occurs to this Court.
His honour, Judge Sayre, held, and we think very properly, that it was the duty of Rogers to collect whatever assets remained in the hands of Hardwick unadministered, and to call not only him to account, but all other persons who may have assets of the deceased in their possession, not derived bona fide from the executor. And by the Act of 1845, Pamphlet p. 15, defining the rights and powers of administrators de bonis non, the legislature have made it the duty of executors who may have been heretofore removed, and who were chargeable to the estate which they represented, to account fully with the administrator de bonis non, who may be appointed to finish the administration of the estate; and of course this act confers upon the present representative the right to compel such account. Nor is there any thing, in the opinion of this Court, in Thomas vs. Hardwick which conflicts with this view. We maintained there, that the creditor could not be divested, by the statute, of the rights which he had acquired under his judgment, "especially as the plea did not aver, as it should have done, that the defendant had fully administered all of the assets which came to his hands, except what he had delivered over to the succeeding administrator." 1 Kelly R. 83.
So far from deciding that this act was unconstitutional or inoperative, as has been assumed in the present argument, it will be seen that there is a strong intimation to the contrary.
It is insisted on the part of the defendant in error, that wherever there is a partial or limited administration which has terminated, and there is an existing representation, it is not only the privilege but the indispensable duty of the creditors to bring all of the representatives before the court, in order that there may be a full and complete distribution of the estate. We hold this to be a sound position, and one fully sustained by the case cited from 14 Con. Ch. R. 94, and Calvert on Parties.
But in the case at bar, it is evident that the object of this bill is not of this character. So far from complaining that the present representative withholds the assets, it is not alleged that he has any. Indeed, to borrow the appropriate figure of counsel, the only office of Mr. Rogers seems to be "to light up the stage and
Gilbert vs. Thomas et al.
then disappear behind the scenery."
Could he not demur to the
bill for want of equity as against him? and if so, is it not apparent
that he is improperly joined with the other defendants?
While we are satisfied that the constitution does not apply to
equity causes, yet we cannot shut our eyes to the fact which stands
out so prominently on the face of it, to wit, that the citizen shall
not be drawn to a distance from the county of his residence to
litigate among strangers, where it may be very inconvenient, if
not impossible, to give security on the appeal, and to comply with
other burdens imposed by the law to enable him to contest his
rights, unless it is indispensably necessary to enable the court to
do complete justice.
Here, so far from any such necessity existing, the very contrary
appears to us to be true. We believe that we shall do violence
to the rights of Rogers, who is not in default, and between whom
and his co-defendants there is no privity, should we retain juris-
diction over Thomas Gilbert in Hancock county, in the proceeding
which has been instituted; and for this reason, the judgment below
must be reversed.
My brother Benning seems to think, that there is some antago
nism between the cases of Thomas vs. Hardwick, 1 Kelly R. 78;
Crafton vs. Beal, ib. 322, and Broach vs. Walker, 2 id. 428. After
the most careful scrutiny and close comparison, we confess that
our intellectual optics are too dim to discover the conflict.
In the first, the Court decided that by the common law,
an ad-
ministrator de bonis non could not call the representative of the
deceased executor or administrator to account for any property
which their testator or intestate may have converted or wasted;"
and that "the act of 1845 to define the rights and powers of ad-
ministrators de bonis non, does not extend to suits brought and
prosecuted to judgment before its passage."
In the second, "the testator left a will, naming several executors,
to whom he bequeathed in trust for certain grand-children, a por-
tion of his estate; one of the executors only qualified, and re-
ceiving the trust property, afterwards died intestate before the
trust thus devolved on him was entirely executed. After his
death, another of the executors named in the will, came forward
and qualified within the twelve months provided by the statute."
The Court held, that "the last qualified executor was entitled to
the possession of the unadministered portion of the trust estate, and
not the administrator of the deceased executor."
1. What is "adverse possession." See title "Statute of
Limitations." Paschal, adm'r. vs. Davis,
1. What affidavit of the party appealing is not sufficient
compliance with the Act of 1842. See title" Appeals.”
Gibbons vs. McComb,
1. In actions against agents, for money voluntarily paid by
mistake in fact, the true distinction is, where the agent
has paid the money over to his principal in good faith,
he is not personally liable; but when he has not paid
the money over, or before such payment he has notice
of the mistake, and is required not to pay it, then he is
personally responsible, although payment to his princi-
pal may have been made. Law vs. Nunn,
2. In a suit upon an instrument in which the defendants
promised, "We, the Trustees of Oakchumpna Academy,
promise to pay," &c., they might prove that the plain-
tiff contracted with them as agents, and that the credit
was given to their principal; and also, that the plaintiff
might show by parol, that he contracted with them per-
sonally, and that he gave credit to them individually.
Cleaveland vs. Stewart & others,
1. Omission of bill of particulars, amendable after verdict.
See title "Declaration." Dill & others vs. Jones, -
2. A capias ad satisfaciendum may be amended so as to
conform to the judgment or decree of the court, where
there is a variance in the amount, and also as to the time
of its return; as when, by mistake, it is made return-
able on the third Monday in December, 1838, when it
should have been made returnable on the second Mon-
day in December, 1838. Saunders vs. Smith, adm'r.
3. The Supreme Court will not interfere with the discre-
tion of the Superior Courts, in the allowing or disal-
lowing amendments of process, except in flagrant cases
of the abuse of such discretion. Ib.
4. In an action of debt, on a foreign judgment, with a single
count, the writ is not amendable by inserting a count on
the original cause of indebtedness on which the judg-
ment is founded. Latine vs. Clements, adm'r. -
1. An affidavit of the party appealing, "that he is unable
to give security," without alleging that his inability is
"owing to his poverty," is not a sufficient compliance
with the Act of 1842. Gibbons vs. McComb, .
1. A Lieutenant of a company raised under the Act of
Congress of 11th February, 1847, is not exempt from
arrest on civil process, under the Act of 1818, which
exempts the militia of this State from arrest while in
actual service. McCarthy, Sh'ff. & White vs. Lowther
& Parish,
1. When the verdict of the jury is regularly returned on
the indictment, but by the neglect of the clerk is not
entered on the minutes of the court at the term at which
it was rendered, this affords no ground for arresting the
judgment; the court may, at the next succeeding
term order the verdict of the jury to be entered nunc
Hall vs. The State,
pro tunc.
2. Omission of bill of particulars not good in arrest of
judgment. See title " Declaration." Dill and others vs.
Jones,
3. If judgment is entered against joint defendants, when
one of them is dead at the time, the judgment shall be
reversed for error as to all of them.
1. The transfer of a fieri facias may be proved by an exem-
plification of the record of the case, where the assignment
is set forth as part of the record. Napier vs. Neal,
1. An affidavit taken for the issuing of an attachment,
signed by Daniel Herman and attested by a judicial
officer, which in its body describes the person sworn as
Daniel Harman, is a sufficient oath under our attach-
ment laws. Kahn vs. Herman,
2. An attachment bond which contains the conditions pre-
scribed by law, and the further condition, that the
plaintiff shall prosecute his suit with effect at the term to
which it is returnable, is substantially in conformity with
the statute, and sufficient to prevent the dismission of
the attachment.
. - 271
3. The lien of attachments is created by the lery, and not
the judgment on attachment; and in all cases of con-
flicts between attachments, the one first served shall be
first satisfied. McDougald vs. Barnard,
4. In a contest between attachments and ordinary suits, it
is the judgment and not the levy which fixes the lien. Ib.
5. A judgment in attachment may be set aside in a court
of law, upon an issue suggesting fraud or want of con-
sideration, tendered by a judgment creditor of the
defendant in attachment. Smith vs. Gettinger & another,
1. When the prisoner is put upon his trial, a jury impan-
eled and sworn for the purpose of trying him, and
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