Dorsey v. State ex rel. Pannell , 4 G. & J. 471 ( 1832 )

Buchanan, Ch. J.,

delivered the opinion of the court.

This action was brought on an administration bond against Richard H. Dorsey, the appellant, (who is the administrator of Wm. B. Dorsey,) to recover the amount of a promissory note, given by the intestate, William H. Dorsey, to Pannell the appellee.

The appellant pleaded, 1st, general performance of the condition of the bond ; 2d, non assumpsit; and 3d, the statute of limitations.

There were demurrers to the first and third pleas; and issue was joined on the second, at the trial of which, an objection was made by the appellant, to the admissibility of the promissory note, which was offered in evidence—and the court having overruled the objection, and permitted it to go to the jury, an exception was taken to the opinion of the court.

The only point raised in the argument here, on the bill of exceptions, is, that there is no evidence to show, that the maker of the note produced, was the appellant’s intestate. But there is nothing in the objection. The note is signed by Wm. H. Dorsey, which (in the language of the statement,) was proved to be “the hand writing of the maker. ”, If there was any other Wm. H. Dorsey, than the appellant’s intestate, the appellant should have shown it; but that not appearing, proof that it was in the hand writing of Wm. H. Dorsey, was sufficient to show that the maker was the appellant’s intestate. Looking however to the bill of exceptions, that would not seem to have been the point of objection below, but it appears to have been, that the note offered in evidence did not correspond with the note described in the declaration, which rests upon no better foundation.

The demurrers to the 1st and 2d pleas, were both sustained by the court, and it is conceded, properly sustained; but however defective these pleas may be, as the demurrers according to the established rule, carry us up| to the first fault, wo are driven to look into the declaration, to see if there is a sufficient cause of action stated, to entitle the appellee to recover; or enough stated to have entitled him to sue the administration bond. Whatever is necessary to give a plaintiff a right to sue, must be averred in the declaration, and it is not sufficient to show it in evidence alone, as the recovery must always be upon the case made in the pleadings. By the act of 1720, ch. 24, sec. 2, it is provided, “that it shall not be lawful for any creditor or creditors, to prosecute any administration, or testamentary bond, for any debt or damages, due from, or recovered against any testator, or intestate, or their effects, before a non est inventus on a capias ad respondendum, be returned against the executor, or administrator, or a fieri facias returned nulla bona, by the sheriff of the county where such executor or administrator lives, or where the effects of such deceased lie, or such other apparent insolvency, or insufficiency of the person, or effects of such executor, or administrator, as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other reasonable means, save that of suing such bonds.”

Thus then, before a creditor can be entitled to institute a suit upon a testamentary, or administration bond, for the recovery of any debt or damages, due from, or recovered against any testator, or intestate, or his effects, there must be a return of non est inventus on a capias ad respondendum, against the executor or administrator, by the sheriff of the county in which such executor or administrator lives; or a return of nulla bona, on a fieri facias, by the sheriff of the county in which the effects of the testator or intestate lie, or other apparent insolvency, &c. And as, to entitle a creditor to bring suit on a testamentary or administration bond, one or the other of the requsites must have occurred before the bringing of the suit, it is incumbent on the plaintiff to aver it in his declaration, otherwise, he does not show that, which is a pre-requisite to his title to sue, and without which, he cannot be rectus in curia. It is just as necessary as an averment of performance of a condition precedent is, in a declaration in an action of covenant.

A plaintiff must in his declaration show himself entitled to sue, by showing that which alone gives the right, otherwise he does not show himself entitled to recover.

In this case there is no averment of the insolvency, &c. of the appellant, the administrator of Wm. H. Dorsey, no averment of a return of nulla bona on a fieri facias, by the sheriff of the county in which the effects of the intestate lie, nor is there the averment of the return of a non est inventus, on a capias ad respondendum, against the administrator of the intestate, Wm. H. Dorsey, by the sheriff of the county in which the administrator lived. There is indeed a statement of a return of non est inventus on a capias ad respondendum, against the appellant, the administrator of Wm. H. Dorsey, by the sheriff of Montgomery county, before the institution of this suit; but it is not stated that the administrator lived in Montgomery county. And for any thing alleged in the declaration, he might both at the time of suing out, and of the return of the capias ad respondendum, have been living in any other county in the State, or any where else. Nor is the debt which this suit was brought to recover, alleged to be the same debt for which the capias ad respondendum stated in the declaration was sued out. And neither of the pre-requisites of the act of assembly being averred, the appellee has not made such a case in his declaration, as entitles him to recover, no matter what the facts may be.

This question upon the construction of the act of 1720, ch. 24, is not now for the first time, brought before this court. In Laidler’s Adm’r vs. State use of Hawkins, 2 Harr, and Gill, 277, it was decided, that in a suit by a creditor upon a testamentary bond, the proceedings should disclose a compliance with that act.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.