James v. Lawrence's Adm'r. ( 1826 )

Dorsey, J.

delivered the opinion of the court. Joseph James, the appellant, sued out of Frederick county court against Otho Lawrence, administrator of Richard Lawrence, a writ of capias ad respondendum in the usual form. And on his appearance to the writ the plaintiff declared against him, as follows: “Whereas certain differences having arisen between the said Joseph and a certain Elizabeth Lawrence, formerly administratrix of Richard Lawrence, deceased, the said Joseph and Elizabeth heretofore, to wit, on the twenty-first day of May, eighteen hundred and eleven, at the county aforesaid, by mutual consent, and by the order of the orphans court of said county, referred the disputed claim, of the said Joseph, against the estate of the said Richard Lawrence, to a certain Abraham Cropster, Abraham Jones and John Campbell, who were, on the day and year aforesaid, at the county aforesaid, approved by the orphans court aforesaid, for the purpose aforesaid; and the said Joseph and Elizabeth, on the day and year aforesaid, at the county aforesaid, with the consent and approbation of the orphans court aforesaid, did consent to abide by the award and determination of the said Abraham Crapster, Abraham Jones and John Campbell, arbitrators, indifferently elected, chosen and named, as well by the mutual consent of said Joseph and Elizabeth, as by the approbation of the orphans court of the county aforesaid, to arbitrate, award, determine and adjudge, of and concerning all, and all manner of actions upon the disputed claim of the said Joseph against the said Richard Lawrence, deceased, at any time theretofore had, made or moved. And the said Joseph further saith, that the said Mraham Crapster, Mraham Jones and John Campbell, having taken upon themselves the burden of the said arbitration, did in due manner make and publish their award in writing, of and concerning the said matters in difference between the said Joseph and Elizabeth, ready to be delivered to the said parties in difference, or such of them as should desire the same, and bearing date 'the first day of June, in the year of our Lord one thousand, eight hundred and eleven; and did thereby award and direct, that the said Elizabeth should pay to the said Joseph the sum of four hundred and fifty-two pounds six shillings and eleven pence, current money, with interest, and costs of suit thereon, as recovered from the said Joseph James by a certain Peter Kennel, in the court of chancery in this state, as by the said award, reference being thereto had, will more fully appear; of which said award the said Elizabeth afterwards had notice. And whereas the said Elizabeth Laivrence, after the making of the award aforesaid, intermarried with a certain Robert Bennelt, and after her said intermarriage she was removed from the office of administratrix of the estate of the said Richard Lawrence, by the orphans court of Frederick county, by due course of law; and being so removed, the said Otho Lawrence 'was by the orphans court of said county, on the twenty-eighth day of July, in the year of our Lord one thousand eight hundred and fourteen, appointed administrator of all and singular the goods and chattels, rights and credits, which were of Richard Lawrence at the time of his death, as appears by the order of said court now into court brought; and the said Otho Laxorence took upon himself the burden of the said administration; yet the said Elizabeth hath not at any time, nor hath the said Otho at any time, paid to the said Joseph the said sum of four hundred and fifty-two pounds six shillings and eleven pence current money, in the said award mentioned, or any part thereof, although to pay the same sum of money the said Elizabeth, while she continued in the office of administratrix as áforesaid, and the said Otho since his appointment as aforesaid, hath often been requested as aforesaid; whereby an action hath accrued to the said Joseph to demand and have of the said Otho, the sum of four hundred and fifty-two pounds six shillings and eleven pence current money, to the damage of the said Joseph in the sum of five thousand dollars current money; and therefore he brings suit, and so forth.” To which the defendant demurred generally, and on joinder in demurrer, it was ruled good. The plaintiff appealed.

Many questions were agitated in the argument before this court, which it is unnecessary now to decide. The award, as set out in the declaration, is “that the said Elizabeth pay to the said Joseph the sum of four hundred and fifty-two pounds six shillings and eleven pence current money, with interest, and costs of suit thereon, as recovered from the said Joseph James by a certain Peter Kennel, in the court of chancery in this State. ” The amount thus awarded creates but a single debt, and gives to the plaintiff but one cause of action, which the law will not permit him to split up and divide into two or more suits at his pleasure. The plaintiff, should he be permitted to recover the ¿2452 6 11 in this case, may immediately commence an action for the interest and costs thereon, as recovered in the court of chancciy; thus multiplying litigation in a way which the law never tolerates. The judgment of the court below is therefore sustainable on this ground. But suppose this difficulty removed, the plaintiff is immediately encountered by others equally insurmountable. The declaration states that the arbitrators “award and direct that the said Elizabeth should pay to the said Joseph,” not as administratrix or in her representative character, but individually. Upon what pretence then-can the plaintiff ask, in a court of law, to charge the individual. debt of Elizabeth upon the defendant as administrator of Richard Latorence? But grant that the award declared on had been, that Elizabeth as administratrix should pay, and had been so set out in the declaration; and grant also that in this form of action on such an award a subsequent administrator of Richard Lawrence might be answerable as such, still the plaintiff appears not in court, in an attitude which gives him the smallest chance of success. The breach alleged is, that neither Elizabeth nor Otho hath paid, “whereby an action hath accrued to the said plaintiff to have and demand of the said Otho the said sum of money,” thus charging him, not as administrator, but in his individual character. If a judgment were entered for the plaintiff on this declaration, execution must go against the body of the defendant, or de bonis propriis only, thus making him, without any promise to pay a default on his part, personally answerable for a debt, which it is not even insinuated that he is bound to pay, otherwise than with the effects of the deceased which have come to his hands. At an act of injustice so flagrant, every principle of reason, equity and law revolts.

JUDGMENT affirmed.