14 N.C. 91 | N.C. | 1831
On the last circuit, at SURRY, the case was submitted to his Honor,Martin, J., upon the following facts in the form of a case agreed. *86
The day the defendant's testator took out administration upon the effects of Jonathan Dalton, the relator, Thomas D. Kelly, sued out several warrants against him, which were all brought either upon notes of the intestate or upon former judgments rendered by justices of the peace against him. On the day after, the justice before whom the warrants were returned gave judgment upon them, and entered up those judgments in the following manner: "The plaintiff, on a note proven by W. C. B., obtains judgment for fifty dollars, and interest from, etc., and costs. Before me.
"The defendant pleads retainer for his own debt, former judgments, fully administered, no assets to satisfy the plaintiff's demand.
"J. W. JUSTICE."
About twenty days after the date of these judgments, the defendant's testator sold personal property of his intestate, to the amount of $10,000, which he disbursed in satisfaction of judgments subsequently rendered against him, and upon notes of his intestate.
Upon these facts, his Honor entered up judgment for the relator, and the defendant appealed. after stating the case as above, proceeded: The question submitted is, Was the administrator guilty of a devastavit in paying the judgments subsequently rendered against him? We think that he was.
If justices were bound to state the facts, which they find to be true or false, and on which they render their judgments, very few of them (93) could be sustained. We therefore take it for granted that everything is found by them which is necessary to support their judgments, unless the contrary appear. The justice having rendered judgment on these warrants, the legal presumption, then, is that he found every fact necessary to support him, and that he negatived every plea which was a bar to the plaintiff. We therefore conclude that he found all the pleas in relation to the assets to be false, or enough of them to be so to warrant the judgments. For the practice of not inquiring into the truth of those pleas appears to me to be very strange, notwithstanding it is said to have prevailed in New York, and in some parts of this State. It is very strange that a court should possess the power to hear and to decide on the matter of charge, and have no power also to hear and decide on the defense. The proposition, to my mind, borders on the absurd; with much deference I speak it. I must therefore conclude that *87 in law, whatever may be the fact, the pleas were then passed on by the justice, and found to be untrue; that it was found that the defendant's testator had assets, and the judgment not having been paid, the condition of the bond is therefore broken.
But take it in the most liberal manner. Suppose that the pleas were not passed on; that by law it was beyond the power of the justice to pass on them, they must be passed on by some tribunal, and the plaintiff must have the benefit of the fact, if the defendant had assets; and, suppose further, there was no tribunal appointed by law to try that fact — and I presume the parties knew there was none, unless it was the justice of the peace — the plaintiff should have the right in the present action of showing it. In this point of view, he is clearly entitled to charge the defendant now, unless it can be shown that the judgments are judgmentsquando, and they bear no resemblance to such judgments. The facts are against such presumption, for it cannot be readily supposed that the plaintiff would exonerate the $10,000, then in hand, and look out for the future assets, when he commenced his suit on the very day on which administration was granted, and there was sold in twenty days $10,000 worth of assets. So take it either way, there is a breach (94) of the bond.
PER CURIAM. Judgment affirmed.
Cited: Hardee v. Williams,
