Sherwood v. Campbell's Administrator ( 1840 )

Chief Justice Robertson

delivered tlie Opinion of the Court.

It is the opinion of this Court, that the statute of 1838, (Session Ads, 165,) conferring on justices of the peace equitable jurisdiction to subject, in a summary mode by summons, choses in action to the satisfaction of judgments under £5, (extended to $50, by an act of 1840, Session Ads, 75,) applies as well to a judgment against an administrator or executor as any other person. Both the letter and the object of this beneficial enactment, apply equally to all judgments whenever there has been a proper return of nulla tona.

The statute of 1839, Ses. Acts, 295, to regulate the administration of estates, does not affect the equitable remedy given by the act of 1838, unless a bill be filed by the fiduciary or some creditor. Judgment creditor, after a return of nulla tona on fi. fa. vs adm’s. may proceed vs debtors of the adm’r. for debts due for phattels purchased -which were the intestates. Turner for plaintiff; Owsley for defendant.

It is also our opinion that the Statute of 1839, (Session Acts, 295,) entitled ‘ ‘ An Act to regulate the administration and settlement of estates," does not affect the equitable remedy given by the act of 1838 for enforcing a judgment against a personal representative, unless such fiduciary, apprehending a deficit of assets, shall have instituted the comprehensive suit authorized in that event by the act of 1839, or unless some creditor had instituted the like suit in equity, as prescribed by the fifth section of the said act, and thereby all other remedies by any other individual creditor had been enjoined. Should there be a deficit of assets a proceeding under the act of 1838, or a judgment rendered thereon might still be enjoined.

Wherefore, we are also finally of the opinion that the Circuit Court erred in deciding in this case, on the appeal from the justice’s judgment, that the equitable remedy prescribed by the act of 1838, does not apply to a judgment against an administrator, some of whose debtors for chattels purchased at a sale of the intestate’s goods, had, according to the provisions of that enactment, been cited by Sherwood after a ft. fa. on a judgment he had obtained for $50, against Campbell’s administrator had been returned "noproperty."

Wherefore, the judgment is reversed and the cause remanded.