Hilles’ Notebook, 39
Court of Common Pleas of Delaware, Sussex County.
February, 1787.
JOHN WILTBANK, ESQ., CHIEF JUSTICE.
On motion by defendant to set aside a fieri facias, a writ of error being brought by defendant in Supreme Court. But no bail to the writ was put in.
Case. Brown commenced an action against Truit, Administrator of ___[1] on the administration bond, and had a judgment by default. Nearly ten years after, he sued out a scire facias to revive the judgment and obtained a judgment on that. Truit then brought a writ of error, but put in no bail to the writ. The plaintiff below, Brown, issued a fieri facias, and it was now moved to set it aside, the writ of error being a supersedeas to this court below.
The defendant, the plaintiff in error, grounded his motion on three points: first, that in all cases a writ of error was supersedeas, from its allowance; second, that executors and administrators are not included in the Statute of, 3 Jac. I, c. 8; third, that, supposing administrators were not concerned, as the bond on which the suit was brought was not for the payment of money only, a writ of error was a supersedeas without bail. In support of the first point, 2 Str. 867 was cited to show how absolutely a writ of error was a supersedeas, insomuch that plaintiff
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after writ of error could not take out a capias ad satisfaciendum
and return non est factum to proceed against bail; and 1 Burr. 340, that it was the allowance of a writ of error that was supersedeas to proceedings below. As to second point, Statute of 3 Jac. I was read, the defendant relying chiefly on the third point. By the Statute, bail is necessary only upon bonds for the payment of money; this Statute should be construed strictly, or not extended to cases that were never intended. The bond upon which the present suit was brought was not for the payment of money only, but for the faithful discharge of the duties of an administrator, which directs the doing of several other acts, that cannot be contained within this Statute. 1 Wils. 19, a bond with condition that if defendant should indemnify plaintiff for what beer he should deliver one Stokes, then to be void.
PER CURIAM.
This was not a bond for payment of a certain sum, and [the] Statute ought to be construed strictly.
[As to the third point,] 1 Bac.Abr. 210, judgment against executor for debt, de bonis testatoris, and damage de bonis propriis, he may bring error without bail, according to 3 Jac. I, c. 8. 2 Str. 745, that bail could not be required of defendant’s executors. 3 Burr. 1549, bail is not requisite upon bringing a writ of error upon a judgment in an action founded upon a prior judgment.For plaintiff it was urged that this was a bond for payment of money only, and that administrator by suffering judgment by default had made himself liable. This is a bond for payment of money the Orphans’ Court having liquidated what sum each heir severally can claim. The plaintiff here demands his debt, first ascertained by the Orphans’ Court. It is his only remedy upon the bond, and for the recovery of money which ought to have been paid. The general rule that executors are not to give bail does not now hold. The executor becomes liable by suffering judgment by default. 1 Bac.Abr. 210 only is applicable in the case of judgment against an executor where he is not liable, and cannot be applied to a judgment by default as the present case. The executor by suffering judgment by default has admitted assets and himself has become liable, and so in the case of a false plea, 2 Bac.Abr. 436. The Statute was never intended to extend where the party has himself become liable, and is out of the lien as an executor. And 2 Burr. 746 was cited to show that this debt was within the meaning of the Statute after the sums became liquidated and ascertained by the Orphans’ Court.
The defendant in reply cited 1 Wils. 260.
And the Court decided in his favor and quashed the fieri facias.
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