41 N.C. 94 | N.C. | 1849
The plaintiff is the administrator of John B. Turner, who had been the administrator of Thomas Rice, deceased. The defendant Watson is the administrator de bonis non of Thomas Rice, and the other defendants, his heirs. The defendant Watson sued the plaintiff Powell as such administrator, and recovered a judgment against him. The bill charges *78 that, on the trial at law, a reference was made to a commissioner to take an account of the assets of Turner in the hands of the present (95) plaintiff, as his administrator, who made his report, and which was confirmed, and from which it appeared that the plaintiff had in his hands assets to the amount of $415.61, for which there was a verdict and judgment, which he has paid. The bill then alleges that the plaintiff's intestate, before his death, had deposited with one Hobbes, who lived about 6 miles from him, a bundle of vouchers showing payments made by him to a large amount, and which were not taken into consideration on the trial of the suit at law; and that at that time he, the plaintiff, had no knowledge of their existence, and therefore they were not laid before the commissioners. The bill prays that the defendants may be decreed to pay him "so much of said sums as he, the defendant Watson, may have assets in his hands," etc.
The defendants demurred generally.
We do not exactly see what it is the plaintiff wishes us to do for him, or in what manner he desires to be relieved. If it is that we shall grant him a decree for so much money wrongfully paid by him under the judgment at law, we cannot grant his request. It is calling upon the Court to give him a decree against the defendants for a legal demand, unascertained by a judgment at law. If the plaintiff have a legal claim, he must establish it at law before he can ask the aid of this Court. Brown v. Long,
The decree in the court below, overruling the demurrer, is erroneous and must be reversed and the bill dismissed with costs in this Court.
PER CURIAM. Decree accordingly.
Cited: Stockton v. Briggs,