
    Hudson v. Ross & Co.
    April Term, 1792.
    Executors: — Liability f os* Deficiency in Estate of Testator. — The appellant dies, and the appeal being* revived against his executor, the judgment is affirmed. Damages ought not to be awarded against the proper estate of the executor. In case of deficiency of that of the testator.
    The appellees brought an action of debt, in the County Court, against Christopher Hudson, who confessed a judgment, and then appealed. In November 1789, the death of the appellant being suggested upon the record, a sci. fa. issued, upon the motion of Charles Hudson the executor, to revive the appeal, and hear errors.
    In April 1790, a sci. fa. to revive and hear errors, was awarded on the motion of the appellees, which was returned, executed.
    In April 1791 the District Court affirmed the judgment, and awarded the damages and costs of the appeal, against the appellant. From which judgment he appealed to this court.
    
      
      See fontnote to Taylor v. McClean, 8 Call 557, citing principal case: also, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   The PRESIDENT

delivered the opinion of the Court.

There is no error in the proceedings in this cause, until we come to the judgment of the District Court, which is entered *as if Christopher Hudson had been then living. The entry is: “that the judgment of the County Court be affirmed, and that the appellee recover, against the appellant, damages according to law &c. and costs &c.”

The court take no notice of the death of Christopher, and yet that event had been regularly suggested upon the record, and the executor made a party by the service of the sci. fa.

In the case of Gordon v. Bates where the executor was there stated as a party, this Court affirmed the judgment with damages and costs to be levied of the estate of the testator in the hands of the executor if so much he had, if not, then the damages and costs of the executor’s proper goods.

The damages in that case being only one penny, they were not worth the attention of the court. On reviewing that subject we disapprove of that decision in awarding the damages against the proper estate of the executor, in case of deficiency in that of the testator, since the executor, in pursuit of his duty, only prosecuted an appeal entered by the testator himself.

The judgment of the District Court must be reversed, and that of the County Court affirmed, with damages from the time of entering the judgment in the County Court, to that of the affirmance in the District Court, and the costs in the latter Court, to be levied of the estate of the testator in the hands of the executor; &0. 
      
      A Motion was made, that the OJerk might be permitted to give a certificate of the above judgment, to be entered in the District Court now sitting:— By the Coart. This is a motion, which is never granted without strong reasons. Tn general It is not permitted, as we may change our opinions during the term. It is often granted, if the delay would endanger the debt. No sufficient reason appearing in this case, the motion is over-ruled.— Note in Original Edition.
     