
    Pendleton’s Administrators v. Stuart and M’Coull.
    Decided, April 13th, 1819.
    i. Equitable Relief — Administrators—Case at Bar.— Notwithstanding a judgment against administrators, as such, in an action of debt, to which they pleaded “payment by the intestate." and a subsequent judgment, against them personally, in an action suggesting a devastavit, to which they pleaded "no waste.” relief in equity was granted them in this case; on the grounds that the peculiar and perplexed state oi the assets made it difficult it not impracticable, to plead in relation thereto, at law; and that, ⅜1 the trial of the second action, their principal counsel was absent, and their assistant counsel withdrew from the cause; in consequence whereof, they were wholly undefended, and a verdict, perhaps contrary to justice, was obtained against them, without any negligence or default on their part.
    This was a Bill of Injunction, exhibited by George Pickett and others administrators of John Pendleton deceased, ¾⅛ the Superior Court of Chancery for the Richmond District, to stay proceedings upon a judgment against them, in an action, suggesting a devastavit, in behalf of jJJorman Stuart, for the benefit of Niel M’Coull, founded upon a judgment in a previous action of debt upon a specialty, to whicn they had pleaded “payment by the intestate,” whereupon a verdict had been found against them.
    The grounds of Equity set forth in the Bill were, that the Complainants had not, at the time of rendering the said judgment, nor ever had, any assets, out of which they could properly pay the said debt; that various impediments, (detailed at large in the Bill,) among which was the pendency of several suits in Chancery, the result whereof was uncertain, and upon which the quantum of assets depended, had prevented their pleading fully administered ; that their Counsel informed them, when the trial was about to come on, that he could not, while the amount of the assets was so uncertain, put in that plea for them, and advised them that, at all events, they would be protected by the Act of Assembly, passed the 13th of January 1807, entitled, “an Act concerning the abatement of suits, and Executors and Administrators:”  that in the subsequent suit suggesting a devastavit, they were ruled into trial in the absence of the Counsel who had attended to the greater part of their business for the estate in the Court, and on whose attention they principally relied for their defence, notwithstanding their motion for a continuance upon the ground that he was at the time gone to Kentucky; and, under these circumstances, judgment was obtained against them, notwithstanding such of the intestate’s effects as were not contested, had actually been applied to, or were bound by, claims of superior dignity to that of Stuart, as would appear by the Commissioner’s report, in another suit, referred to and made an Exhibit.
    Chancellor Taylor granted the Injunction, upon the terms of the Complainants’ confessing judgment upon a forthcoming bond, and executing the usual release of errors at law.
    *The answer of Stuart stated that the judgment in his favour had been transferred to M’Coull; and that of M’Coull, relied upon the Estoppel created, at law, by the original judgment .upon the plea of “payment,” as prooí that they had in their hands assets sufficient to discharge the same; and upon the return of nulla bona as conclusive evidence of the devas-tavit: remarking, too, that the involved situation of their intestate’s affairs, if such as the complainants represented, might have been urged with propriety as a ground for the continuance of the original suit; and, if a motion lo that effect had been made and overruled, they might, as the respondent was advised, have had relief “in a Superior Court of law, or, at least, in a Court of Equity; or, if the Complainants had shewn the difficulties and embarrassments mentioned in their bill, and that they had no assets, during the pendency of that action, they might then have applied to a Court of Equity to restrain proceedings at law, until a reasonable time had been allowed them to examine the situation of their intestates’ affairs; or they might have compelled the plaintiff in that action to take a judgment, when assets, and thus have thrown the burthen of proof upon him, to shew, at any future time, that assets had come to their hands: but, instead of this, they thought proper to rely on the jilea of payment! The difficulties in relation to the «node of proceeding, seemed to this respondent altogether imaginary. If the complainants had no notice, at the date of the original judgment, of the existence of claims of superior dignity sufficient to consume the assets, they were bound to discharge the said judgment, and plead the same in bar to suits subsequently instituted : if they had notice prior to that judgment, they ought to have pleaded those claims in bar; shewn that they were sufficient to swallow up the assets; and given a judgment, when assets. But, even if the complainants might have availed themselves of the ground of relief set forth in their bill against the original judgment, it was too late to rely upon such grounds after a suit had been prosecuted on that judgment, suggesting a devastavit, and a judgment obtained against *them on the plea of “no waste.” As to the pretence that they were improperly ruled into a trial in the absence of their Counsel, if the Court erred in this respect, it was competent to a superior Court of law to correct the error: but the fact was, that, although one of the Counsel etrployed by them was absent, they had counsel present in Court, of long standing at the bar, retained in their behalf a considerable time before the trial, and every way qualified to defend them.
    The Chancellor dissolved the Injunction, and, notwithstanding affidavits afterwards filed in support of the Bill, refused to reinstate it.
    The affidavit of William Marshall stated, that, soon after administration was granted on the estate of John Pendleton, the Complainants employed th» deponent to attend to the business of the estate in the County Court of Henrico and Hustings Court of the City of Richmond; when a great number of suits were soon instituted ; that, upon conversation with the complainants or some of them, he was informed that the assets were in a very embarrassed situation, in consequence of difficulties about the title to sundry certificates, for services and supplies rendered the public, found in the said, Pendleton’s possession, and claimed by other persons and the Commonwealth, on which suits were instituted, and an unsettled administration account of the estate of Mr. Heitman, on the favorable termination of which suit the ability of the Complainants to pay the demands against them, then in suit, depended.
    “The deponent thinks that, under these circumstances, he obtained a continuance of the causes, but, at a subsequent Court, not being able to state the probable time when the difficulties would be removed,- he was compelled to go to the trial of the cases then ready, which he felt little reluctance in doing, as he felt satisfied that the defendants at law would not be subjected to the payment of more than the assets which really came to their hands, although judgment to a greater amount might be rendered against them.’’
    affidavit of Charles Copland stated, that he was employed as an assistant Counsel to William Marshall, by the administrators of John Pendleton, to defend them in a suit brought against them by Norman Stuart, in the Court of Henrico, suggesting a devastavit; that the cause was set for trial at the time when William Marshall was absent on a journey from home; that the deponent moved the Court for a continuance on the ground of Mr. Marshall’s absence, who was the Counsel relied on, and had been engaged in the de-fence of the suits brought against the administrators ; but the Court refused to grant the continuance. The deponent stated to the Court that it was a cause of great importance to the defendants; that he had been only employed to aid in the defence; that he was Unacquainted with the merits of the case, and wholly unable to go into the trial; and that, if the Court would not continue the case, he should withdraw himself from the suit: but the Court was inexorable. The deponent then directed his name to be stricken from the docket; and the cause was tried and determined without any defence.
    Upon a Petition, an appeal from the decree was granted by this Court.
    Call for the appellants,
    observed, that he never knew a case, until the present, in which an Executor, who in fact had fully administered, was refused relief in Equity,  Where the Court below ought to have granted a continuance, this Court has repeatedly decided the judgment not to be binding. The difficulty and length of the plea of fully administered, is a good excuse for not putting it in.  The circumstance that the Court of law has jurisdiction, does not always take away that of the Court of Equity; but the jurisdictions of both are concurrent: — especially, where the Court of Equity once gets jurisdiction, it does not lose it on the ground that the Court of law has it also. In many cases, therefore, Equity gives a defendant relief, though he might have obtained it, at law, if he had pleaded; as in the cases of gaming, usury, and the like.
    *Is a plaintiff entitled, in conscience, to the benefit of a judgment, for assets which the executor never received?
    Whether a new account was necessary, or not, seems doubtful. According to the British authorities, an account taken in any one cause, may be read as evidence in another, if no exception be taken.
    Wickham on the same side, referred to Price’s ex’or. v. Fuqua’s adm’r., 4 Munf. 68, as shewing that the appellants ought not to be prejudiced, even if their Counsel were mistaken as to the proper defence at law.
    William Hay, jr. contra.
    — It is not true that, when this judgment was obtained, there were no assets to satisfy it. The act of Assembly indeed made the Decree, directing the residuum in Pendleton’s hands, as administrator of Heitman, to be paid to the Commonwealth, there being no distrib-utees, a debt of the first dignity; but Hop-kirk’s claim as a creditor, against Pendleton executor of Gunn, does not appear to be of superior dignity to our’s. A claim against an executor for a devastavit is, in England, a simple contract debt. In this country, I admit it to be a specialty, because the Executor gives bond, and the damages may be ascertained by the judgment: but, as to creditors, it is no higher than a specialty; for the act of Assembly is not in favor of creditors, but of legatees or distributees only,  The distinction of the dignity of debts, is an odious one, and therefore ought to be strictly construed. A large payment too, was made by the administrators to an open account.
    I am willing to admit that, notwithstanding mispleading &c. in the original suit, they might have shewn, in the action suggesting the devastavit, that in fact they had no assets. The intention of the Act of 1806 was to remove the estoppel produced by the first judgment. But, surely, it was not intended to give an Executor the unlimited privilege of failing to make any defence at law, and of then going into Equity. After a judgment in an action suggesting a devastavit, it is surely too late to ask relief of a Court of Equity on grounds which might have been taken in opposition to that action.
    *There was no difficulty in making defence at law in this case. The plaintiff might have been compelled to accept a judgment payable when assets ; for the certificates of public debt were, like bonds, only evidences of debt, and not assets in hand until turned into money; and, besides, a suit was pending to determine whether they belonged to the estate of the intestate, or not. Suppose the Executor had entered, in the Inventory, a negro or horse; might he not have defended himself at law, by shewing a suit of a third person pending against him for the specific property? The number of claims is nothing to the purpose. The administrators ought not to have amused the plaintiff by proceedings at law; but, if necessary, should have filed a bill of conformity in the first instance. Neither is the rejection of their motion for a continuance, any ground for coming into Equity; for they might have excepted to the Court’s opinion, and appealed. In short, every defence now relied upon, might, have been made in the second action; in which the whole merits came in question, and the plaintiff was bound to prove the defendants guilty of the devastavit.
    Cases of gaming and usury are not like this, but founded on special acts of Assembly, making the bonds or other securities, in such cases, utterly void. It is said to be monstrous iniquity to refuse relief to an Executor, who has no assets. But there is equal hardship in other cases, whenever a defendant has failed to make defence at law, without good excuse for such neglect. Executors and Administrators are not privileged persons.
    Wickham in reply. The circumstance that a contest was pending concerning the right to the certificates, could not be pleaded, nor given in evidence upon a special plea of fully administered. The general plea would not answer the purpose. Certificates are considered assets, as much as Bank notes, which are not money, but are assets, because they can be turned into money. So also is stock in the funds of the United States. Certificates circulate from hand to hand without assignment. The administrators asserted a right to the certificates, which were in their possession : — of course, they could not plead that *they were not assets. Under such circumstances, no plea could have been filed at law that would have protected them.
    The continuance was properly refused. The Court can not compel a plaintiff to take judgment when assets; neither ought it to continue a suit at law ad infinitum on the ground of the pendency of a suit in Chancery ; but should leave the party to be protected by the Court of Equity.
    Surprise, mistake, the Court of Chancery’s having jurisdiction, whose decree cannot be pleaded at law, are equally arguments for relief, after judgment in the action for the devastavit, as after judgment in the original suit.
    In this case, the administrators were guilty of no neglect. Their Counsel deserted their cause : — but no defence that could have been made, would have protected them. As the case now stands, it is prima facie apparent that the plaintiff at law ought not to recover.
    
      
       .Edit. 1808. c. 101, p. 127; B. Code of 1819, c. 104, § 36, p. 384.
    
    
      
       See Mayo v. Bentley, M. S.Nov. 3d. 1800.
    
    
      
       See Judge Pendleton’s remarks in Dowmnan v. Downman’s ex’ors. 1 Wash. 28.
    
    
      
       Bait, of 1792,1803, and >14, c. 92, § 53, p. 167.
    
    
      
       Roll’s Abr. 920, Owen 36; 2 Selwyn’s N. P. 695, citing Smith v. Davis.
    
   JUDGE ROANE

pronounced the following Opinion of this Court.

Owing to the peculiar and perplexed state of the assets in this case, making it difficult, if not impracticable, tor the appellants to have pleaded in relation to them, at law; and owing, also, to the absence of the principal Counsel of the appellants, and the withdrawal of the other, at the trial in the second action, whereby the appellants were wholly undefended, and a verdict, perhaps contrary to justice, obtained against them, without any negligence or default on their part; the Court is of opinion that the Decree is erroneous and ought to be reversed, the injunction re-instated, and the cause remanded, to have an account of the assets taken, .if required, in order to a final decree.  