9 U.S. 19 | SCOTUS | 1809
FAIRFAX'S EXECUTOR
v.
ANN FAIRFAX.
Supreme Court of United States.
Swann, for the plaintiff in error.
*20 E.J. Lee, contra.
MARSHALL, Ch. J. delivered the opinion of the court to the following effect:
*21 The verdict ought to have found the amount of the assets in the hands of the defendant to be administered.
The cases cited to show that the judgment must be for the whole sum, if the verdict find any assets, have been overruled. This is declared by Lord Mansfield, in a case cited in Gwillim's edition of Bdc. Abr. and the law is now well understood to be, that the executor is only liable for the amount of assets found by the jury. In Virginia the law has been so settled. The case cited from 2 Wash. Rep. is precisely in point. The counsel for the defendant in error attempted to show a distinction arising from the difference of form in which the verdicts were rendered. But the two verdicts appear to the court to be precisely alike in substance.
The defendant in error relies on the form of the issue. She contends that as the replication alleges that the defendant has assets more than sufficient to satisfy the debt, he finding of that issue for the plaintiff below in effect finding that the defendant has assets more than sufficient to satisfy the debt; and if so, it is wholly immaterial what the real amount of assets is. But if this were the issue, and the demand were 500 dollars, if the jury should find that the defendant had assets to the amount of 499 dollars, the judgment must be for the defendant.
But the law is not so. An executor is liable for the amount of assets in his hands, and not more.
The issue really is, whether the defendant has any, and what amount of assets in his hands.
Judgment reversed.[*]
NOTES
[*] Vide, 3 T.R. 688, 689. Harrison v. Beecles.
E.J. Lee had previously moved this court to quash the writ of error, because the citation was not served on Ann Fairfax, the defendant in error; but on her husband Charles I. Catlett, with whom she had intermarried since the judgment below.
But the court overruled the motion, saying,
That the act of congress, vol. 1. p. 62. § 22. does not designate the person upon whom the citation shall be served, but only directs that the adverse party shall have at least thirty days' notice.
The citation served on the husband is well. The service is sufficient.
