Quigley v. Campbell , 12 Ala. 58 ( 1847 )

GOLDTHWAITE, J.

1. We think the exception to the records attached to the transcript is well taken, and that the certificate of the clerk, being attached to the bill of exceptions, without the exhibits, there is nothing in the transcript to show these were the same referred to by the bill.

2. But understanding the counsel for the plaintiff in error as stating, he is surprised by the objection now taken, and that he considered the exhibits as certified by the general certificate, as well as vouching that these exhibits were the same as used at the trial, we think it a proper case for the allowance of a certiorari.

Afterwards, the counsel for the' defendant waived the issuing of the certiorari, and consented the exhibits should be considered as regularly certified.

3. Upon the merits of the case, there is small room for controversy. The judgment described in the declaration, is one against Mrs. Q,uigly de bonis testatoris; that offered in evidence is de bonispropriis. That this is its legal effect, is abundantly shown by the cases in this court, in which precisely the same judgment entered in a suit against an administrator in his representative capacity, has been held at first a proper ground for reversal, and subsequently a matter of amendment in this [court. [Weatherford v. Weatherford, 7 Porter, 171; Oliver v. Hearne, 4 Ala. Rep. 271; Scott v. Yarborough, 5 Ala. 221.]

If then, the judgment requires to be amended, before the plaintiff can proceed to have execution de bonis testatoris, it is clear such is not its legal effect until amended. That such a judgment is not admissible when one de bonis testatoris, is alledged in Van Horn v. Teasdale, 4 Halst. 379. In our judgment, the court erred in not excluding the record offered in evidence.

4. The other exception requires us to determine the effect which this judgment would have against the defendant if properly entered against her in her representative character. This was passed on to some extent in the case of Quigley v. Campbell, 5 Ala. Rep. 76. We there say, in effect, that a judgment obtained by the defendant against an administrator plaintiff, under the provisions of the statute offset off, cannot be construed as an admission of assets. The reason why a judgment under this statute has no effect as proof of assets against the administrator, is, that no opportunity is afforded to contest the fact of assets, to answer the particular debt ascertained. If the plaintiff to a plea of set off was to reply a plea of plene administravit, she would admit the set off, and as the law stood at the time of the enactment, double replications were not allowed. [1 Chit. Plead. 614.] Under the act as it was first enacted in 1799, an execution was not allowed in the first instance, but in all cases the party was to be called on to show cause why one should not go for the sum certified to be due. [L. of Al. 457.] Its subsequent alteration in 1827, although it allows execution to issue at once upon the judgment, does not prescribe that any effect shall be given it when against an administrator, as an admission of assets, and it seems to us a harsh and unreasonable construction, when full effect can be given otherwise to its terms. No injury is done to the plaintiff by requiring him to establish that assets have come to the hands- of the administrator, out of which he is entitled to payment, either in full or in part, and without such proof, there is no justice whatever in allowing him to recover.

5. This construction of the statute, as it casts the onus of showing assets upon the party alledging the devastavit, independent of the judgment, also lets in the administrator to show their proper administration, previous to the fixing of his liability, either by notice of the debt, or by obtaining the judgment-; and for this purpose it seems -to us, the record of the proceedings in the orphans’ court was admissible evidence. The statute provides, that “ the documents and evidence of all settlements made with executors, administrators, and guardians, shall be carefully preserved, and the settlement entered of record ; which evidence, vouchers, documents and settlement, shall be good evidence in any suit for and against such executor, &c., and shall not be impeached except for fraud in obtaining'the same.” [Dig. 304, <§> 37.] The object of this enactment was, doubtless, to provide a seeurity to persons acting in this capacity, that the vouchers, &c. passed upon as correct by the judgment of the orphans’ court, should be at least grima fade evidence of the facts stated by them in any collateral suit. Without some such effect be given, the inconvenience to this class of persons would be immense, if they were required to make out by extraneous evidence, the correctness of every payment made, or other administration of the assets by them. It will be seen we give no opinion upon the effect of this record, as it is uncalled for by the case presented; but we cannot doubt, that if the vouchers or settlement established the administration by the present defendant, of the assets of the estate, the amount of the debts against it, or the periods when they were paid, these facts were important in ascertaining whether there was a de-vastavit, as well as the extent to which the defendant is responsible to the plaintiffs. Upon both grounds excepted to,, we think the court erred.

Judgment reversed, and cause remanded.