Howard v. Cousins , 8 Miss. 114 ( 1843 )

Mr. Justice Clayton

delivered the opinion of the. court.

This.is an action of debt, brought by the. appellee against jthe plaintiff in error, who was.administrator of S-. Alfriend, deceased, upon a judgment rendered against Howard in the late supreme court, suggesting a devastavit. The facts in the record are very voluminous; and present several questions for consideration. Only the more prominent will be noticed, as they dispose of the case.

The defendant below objected to the reading of the original judgment against him, for two reasons:

First. That the judgment itself is void, because of irregularity in the mode in which it was rendered; and,

Second. Because of a variance between the judgment and the description of it given in the declaration.

The court overruled the objections and suffered it to be read, and the points were reserved. '

The judgment purports to have been rendered in the supreme court, under the'old law of this state, authorizing the judges of the circuit court to adjourn points of difficulty into the supreme court, and requiring'the latter to certify it's opinion to. the court below. Rev. Code, 138, 154.

It is insisted that the judgment of the supreme court in this instance is void, because, instead of certifying its opinion back to the circuit court,'it entered up a. final judgment. The statute under which this proceeding took place is very similar to the act of congress regulating the practice where the judges of the circuit court are opposed in opinion. The uniform practice of the Supreme Court of the United States, upon a certificate of division of opinion between the judges below, is to certify their opinion to the circuit court, and-this certificate forms the rule of their action. The judgment entered in this case by the supreme court is not in accordance with the law, nor with what we understand to have been the usual practice in that respect; but it would be going very far for us to decide that it is void, and, as there are other grounds on' which the judgment will be reversed, we will give no opinion on this point.

The second objection to the reading of the record is well.taken. The judgment described in the declaration is of the'December term, 1830; that which was read was a judgment of the December term, 1831, rendered nunc pro tunc. It would be a fruitless task to gather up and comment upon the many cases which have occurred upon the subject of variance. A large number will, be found collected in 2 Phil, Ev. p. 518, noté 407. They-are apparently fluctuating and discordant, and governed by no uniform and pervading principle. But we think it would be a departure from that certainty, which is required in legal proceedings, to permit the judgment offered in this case to be read, under .the description contained in the declaration.

We shall notice but' one other point, though that bears upon several parts of the case. The defendant was not permitted to prove that he had fully administered the estate of his decedent, and the original judgment against him, with the return of nulla bona on the execution, were held to be conclusive evidence of a devastavit by him. This was, no doubt, the rule at common law. But our statute enacts “that no executor or administrator shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake .in pleading, or, false pleading of such executor or administrator." H. & H. 396, sec. 38. This statute has already received an exposition in this court, which shows the change it has wrought in the common law rule. Vick v. House et al. 2 How. 617. It is there laid down, that, since the enactment of that statute, “nothing is deemed sufficient to create a presumption of assets.”

A similar statute in Virginia has received a like construction in the court of appeals of that state. There it is held, that “the judgment against the administrator is prim.a facie evidence of assets to satisfy it, and the burthen is on the defendant in the subsequent action, of proving that payment of the judgment would charge him beyond the assets of the testator or intestate.” Miller’s Ex’or v. Rice, 1 Rand. 443. Here the first judgment, according to the case above cited, is not even prima facie evidence of assets.

There is error, therefore, in the opinion of the court below upon this point.

We cannot adopt the construction which the counsel for the defendant in error endeavors to put upon the charge of the court upon this head, namely, “that the judgment and return of nulla bona were conclusive evidence of the defendant’s liability as administrator.” There was, in the view of the plaintiff below, already one valid subsisting judgment against the administrator, as such; for what purpose is another sought? Besides, all the proceedings, from the beginning to the end, are against Howard individually, and a judgment in such a case, against him in a representative capacity, would of itself be erroneous.

His failure to report the estate insolvent, and thereby to cause an equal distribution of the assets, may very probably subject him to an action on his bond for not administering the estate according to law; but we do not think that such failure authorizes a recovery in this form.

The judgment is reversed, and cause remanded for a new trial.