Harris v. Davis

1 N.H. 248 | Superior Court of New Hampshire | 1818

The opinion of the court was delivered by

Richardson, C. J.

Probate bonds are given to the judge of probate in trust for the benefit of all those who are interested in the estates to which they relate. When the condition is in any respect broken, the judge is entitled to maintain an action, and to recover judgment for the whole penal sum named in such bonds. But the court awards execution only for such sum as, upon a hearing in chancery, is found equitably due at the time of rendering judgment ; and for such sums as, upon scire facias brought for the purpose, may af-terwards be found equitably due on account of further breaches of the condition. It is, therefore, evident, that in debt on a probate bond, to recover the penalty, although the suit may be instituted at the instance of individuals who have no interest in the judgment to be recovered, yet still it may be prosecuted to judgment for the benefit of those who have an interest in it. Hence it is clear, that the plea in this case is no answer to the action. It admits that fhe bond is the deed of the defendant’s intestate ; and it neither alleges performance, nor any excuse for the non-performance of the condition ; it in fact admits that the condition is broken, and that the plaintiff is entitled to maintain the action, if not barred by the matter of the plea. This matter is that the suit, was brought for the benefit of Champney and Hills, and to recover certain claims which they have upon the estate of Batchelder, and which they are not now. entitled to recover of the defendant, because they were not presented to him within two years after his appointment as administrator, and are therefore barred by the statute of February 3, 1789, % 18, 1 N. II. Laws, 212. — The first answer to the plea is, that, admitting it to be sufficient in law, so far as it goes, it does not answer the whole ground of the action ; for Champney and Hills are not averred to be the only persons who have claims upon the estate of Batchelder; therefore, although the action ought not to be maintained for their benefit, still, for aught that appears, it should be maintained for the benefit of others. Another answer to the plea is, that this suit is brought to recover judgment, not for the claim of Champ-ney nor Hills, but for the penalty of the bond. And the plaintiff’s right of action is founded, not upon the validity of their claims, but upon the breach of the condition of the bond. The matter of the plea does not, therefore, meet the ground of the action at all. And further, as the plaintiff claims judgment for the penalty of the bond, it was clearly a compliance with the requisitions of the statute of 1789, if he exhibited the bond to the defendant within the two years. Whoever drew this plea seems not to have recollected that the nature and object of the proceedings in cases of this kind, before judgment, are entirely different from the nature and object of the proceedings after judgment.. Before judgment the proceedings are all according to the rigid rales of law, and the object of them is to obtain judgment for the penalty. After judgment, the proceedings are an act of chancery, and the object of them is to obtain an award of execution for what is equitably due. The merits of particular claims for damages, by reason of breaches of the condition, are not before the court till after the judgment for the penalty, because the action may be maintained by shewing any single breach whatever. Hence, whatever ground there may be for rejecting particular claims upon a hearing in chancery after judgment, still the action may be maintained for the penalty. The defendant’s plea is, therefore, clearly bad. Nor can the matter of it avail him on a hearing in chancery, should the plaintiff claim an award of execution for the amount of the debt of Champney and Hills; because if the bond was exhibited to the defendant within the two years, their claims were virtually exhibited, being claims directly under the bond.