State v. Jones , 2 Gill 49 ( 1844 )

Chambers, J.,

delivered the opinion of this court.

The first exception involves the validity of the certificate, or as it is termed in the record, the award signed and returned by James Forrest.

This cannot be considered as a reference under the provisions of the act of 1778, ch. 21. The various provisions of that act, all contemplate a case still pending in court and awaiting the return of the award before a judgment is to be rendered ; whereas in this case, a judgment has been entered, which according to the case of Turner vs. Plowden, 5 G. & J. 52, is a final judgment, without the further action of the court. It would seem not to be possible in such a case to give judgment on the award, according to the direction of the act of 1778, ch. 21, sec. 8, without which the objects of that act cannot be attained. See Shriver vs. State, use of Devilbiss, 9 G.& J. 1. The words “payment” and “due” would seem to import, that a sum of money was alone in view of the parties, and we must conclude that no other authority was given to J. Forrest but to certify the sum of money, on payment whereof the penalty and costs should be released ; and then the question arises whether he has pursued the authority thus given? We think not. It is most obvious that the payment of any specific amount of money in specie would not be an execution of his direction. Payment is not only to be made in negroes, but in negroes belonging to a particular estate, and at a value estimated by a designated standard, and the plaint iff was not entitled to demand, nor could the defendant claim to discharge the debt in any other mode than the one mentioned in the certificate, and no execution could therefore issue. If instead of the judgment, a reference had been made in terms broad enough to authorise such an award, and a judgment had been entered thereon, all difficulty in that respect would have been removed. 9 G. & J. 1; 10 G. & J. 192. The object intended and directed by the certificate cannot be effected by striking from it so much as relates to the negroes, and allowing it to remain as if it had directed the payment of the specific sum of $> 1,016./5V Assuming the negroes to have been appraised at a fair value in 1820, when the administration bond on the estate of S. G. Herbert appears to have been given, and when we must suppose the appraisement and inventory were made, it was nearly, if not quite, impossible, the negroes could have remained of precisely the same value, until the letters of administration to Mary E. Ford in 1836, at the expiration of sixteen years, or at any later period; and if there was any difference in such value at the time when the payment of the $U, 016.in money was enforced, either more or less would be paid than the certificate required, as the appreciation or depreciation of the negroes should determine. It was therefore necessary to the essential merits of the case, that the payment should not be required in money. Whether this be regarded as an award, or as in the nature an of award, we are of opinion, that upon principle or analogy, the certificate could not entitle the plaintiff to claim in money, the amount therein stated. We therefore concur with the court in the opinion given in the first exception, and also in the opinion given in thefourth exception, which raises the same question.

In the second exception, the plaintiff asked the court to instruct the jury, that the defendants were responsible for the nominal amount of the said certificate, if they should find that it was mentioned in the list of debts due to the estate of Ignatius Ford, returned by Mary E. Ford, the administratrix, and which return was in the handwriting of Caleb M. Jones. We are of opinion that the court were right in refusing the instruction. The claim is stated in the list of debts as payable in negro property at the original appraisement. The return is a report by the administratrix, M. E. Ford, of the fact that such a judgment existed, but we have before said it did not enable her to collect the amount of money mentioned in the certificate, and of course she was not responsible for that amount, as for so much money lost by her neglect.

The additional facts set forth in the third exception, do not in any degree relieve the case of the difficulties and objections which oppose the right of the plaintiff to recover upon this certificate the sum of money which he claimed in this action, nor indeed do we perceive how the administration account brought into the case, can be made to bear upon the issue.

Whether the balance stated to be due on that administration account, was due to Ignatius Ford, or was recoverable by his administratrix, or any portion of it, or to whom due, the record does not disclose. Finding no error in any of the opinions to which exception has been taken, we must affirm the judgment with costs to appellee. judgment affirmed.