
    Archer v. Archer’s Adm’r.
    April Term, 1852,
    Richmond.
    (Absent Cabell, P., and Baldwin, J.)
    1. Pleading and Practice-Plea of “Non Damnificatus”— When Proper. — The plea of “non, damnificatus” is a good plea, only -where the condition is to indemnify and save harmless. The plea should go to the right of action, not to the question of damages.
    2. Same — Same—Equivalent to Conditions Performed — ■ Refusal to Allow Both — Effect.—Wherever the plea of “non damnificatus" is a good plea, it is equivalent to the plea of “conditions performed." And if this last mentioned plea has been filed in a cause, it is no error to refuse the application at a subsequent term, to file the former.
    3. Devise of Tract of Land for Payment of a Debt— Liability of Legatee on Refunding Bond — Case at Bar. —A testator devises a tract of land for the payment of a particular debt, and the land is sold; but the creditor receives only the first payment of the purchase money, and refuses to take the balance, which is applied to the payment of other debts of the testator. Whether the land was the primary fund for the payment of the particular debt, or not, that debt was in fact the debt of the testator’s estate, for which a legatee was responsible under his refunding bond.
    
      4. Exceptions — Admission of Evidence — What Bill Hust State — Case at Bar. — In an action by an executor upon a refunding: bond, he offers in evidence the record of the cause in which the decree was rendered against him, on account of which his action is brought: and he then offers in evidence the execution which had issued on the decree, and the return thereon; which were objected to by the defendant, but were admitted by the Court. To the admission of the evidence the defendant excepted, but the exception did not contain the execution. Heed. That the relevancy of the evidence ’'’being obvious without an inspection of the execution, it was not essential that it should be contained in the bill of exceptions.
    This was an action of debt instituted in the Circuit court of Chesterfield county in June 1838 by William S. Archer against John Archer. The declaration merely set out the bond on which the action was instituted, without referring to the condition. The defendant appeared at the March term for 1841, craved oyer of the bond and condition, and pleaded ‘ ‘conditions performed. ’ ’
    The bond was executed by John Archer with a surety to William S. Archer administrator of John Archer deceased of Amelia, who was one of the acting executors of John Archer of Bermuda Hundred, in the county of Chesterfield, in the penalty of 2600 dollars, with a condition that the obli-gor John Archer who was one of the distrib-utees of John Archer of Bermuda Hundred, and who had received his due proportion of the said estate from John Archer of Amelia, should 'refund his due proportion of all sums of money which might, at any time thereafter, be recovered of or against the said William S. Archer, his executors or administrators, in manner as aforesaid.
    _ The plaintiff replied and set out three assignments of breaches, all of which were intended to present the same subject matter. That was that in July 1837, a debt which John Archer of Bermuda Hundred had owed in his lifetime, to Judith Archer, in her lifetime, amounting to 2148 dollars 7 cents, with interest at five per cent, on 1272 dollars 96 cents, a part thereof, from the 31st of December 1820 till paid, and 139 dollars S cents costs, had been recovered by the administrator of Judith Archer against the plaintiff, as the administrator of John Archer of Amelia, who in his lifetime had been the executor of John Archer of Bermuda Hundred, by the decree of the Circuit court of Henrico, of which the ^defendant had notice and had been requested to pay his proportion, which was one fifth of the amount so recovered.
    At the November term 1842, the defendant tendered a plea of “non damnificatus,” in addition to the plea previously pleaded; but it was objected to by the plaintiff and rejected by the Court. The defendant then tendered a rejoinder to the plaintiff’s replication, which was also objected to by the plaintiff, but the Court overruled the objection. The defence set up in the rejoinder was, that the debt which was decreed to be paid by the plaintiff as the administrator of John Archer of Amelia to the administrator of Judith Archer, was not a debt at the time of pronouncing said decree, due from the estate of John Archer of Bermuda Hundred, but was a debt from the said John Archer of Amelia, to the estate of Judith Archer. Upon this rejoinder there was an issue.
    The cause came on to be tried at the March term for 1843, when the defendant took two exceptions, one for the admission of testimony, and the other for the refusal of the Court to give an instruction to the jury. The facts in relation to both the subjects of exceptions are stated in the opinion of Judge Moncure. There was a verdict and judgment for the plaintiff for the sum of 673 dollars 82 cents, with six per cent, per annum interest thereon, from the 3d day of January 1838 until paid. Whereupon the defendant applied to this Court for a super-sedeas, which was awarded.
    Stanard & Bouldin and Cooke, for the appellant.
    Taylor, Macfarland & Rhodes, for the ap-pellee.
    
      
      Pleading and Practice — Pleas—Non Damnificatus— Conditions Performed. — On a bond merely conditional for indemnity, where a plea of non damnificatus would be proper, a plea of conditions performed answers the same purpose. Poling v. Maddox, 41 W. Va. 779, 24 S. E. Rep. 999, citing Archer v. Archer, 8 Gratt. 689.
      
      In Elam v. Commercial Bank, 86 Va. 95, 9 S. E. Rep. 498, it is said: “The plea of non damnificatus is usually equivalent to conditions performed; therefore the plea of conditions performed having been previously pleaded in the case, the defendants could not be prejudiced by the refusal of the court to allow them to file Its equivalent. 4 Minor’s Inst., 988, 1004; Archer v. Archer, 8 Gratt. 539; McClure v. Erwin, 8 Cow. R. 832." The principal case is cited in Guarantee Co, v. Bank, 95 Va. 490, 28 S. E. Rep. 909; foot-note to Board v. Dunn, 27 Gratt. 608; footnote to Fant v. Miller, 17 Gratt. 47; Central Land Co. v. Calhoun, 16 W. Va. 376.
      In Altizer v. Buskirk, 44 W. Va. 259, 28 S. E. Rep. 790, it is said: “The plea of conditions performed answers the whole cause of action In the declaration mentioned, and controverts the plaintiff's right to any recovery at all; in short, puts the plaintiff upon proof of all the facts necessary for his recovery except the execution of the bond. State v. Hays, 30 W. Va. 108, 3 S. E. Rep. 177; Archer v. Archer’s Adm'r, 8 Gratt. 539.”
      
    
    
      
      Exceptions. — In. McDowell v. Crawford, 11 Gratt. 396, it is said: “But the only reason for inserting the document in the bill of exceptions is to enable the appellate court to see whether it is relevant evidence. If its relevancy otherwise sufficiently appears upon the record, its insertion in the bill of exceptions is not necessary. Archer v. Archer's Adm'r, 8 Gratt. 539. In this case I think the relevancy of the evidence which was excluded is sufficiently apparent on the record."
    
   MONCURE, J.

Two errors are assigned in this case. The first is the rejection of the plea of non damnificatus. Did the Circuit court err in rejecting that plea? The condition of the bond was for the payment of one *fifth, of all sums of money which might at any time thereafter be claimed or recoveréd of, or against, the said William S. Archer &c. According to the rule laid down in Stephen on Pleading, p. 386, that a general mode of pleading is often sufficient where the allegation on the other side must reduce the matter to a certainty, the plea of “conditions performed,” generally, was an admissible plea in this case. But not the plea of non damnificatus. As was said by the Supreme court of New. York, in the case of McClure v. Erwin, 3 Cow. R. 313, 332. “This is a good plea in all cases where the condition is to indemnify and save harmless; because it answers the condition in terms. But it is good in that case only. The plea should go to the right of action, not to the question of damages. The plaintiff, so far as it depends upon the pleadings, shews his right to recover by setting forth the bond with its condition, and alleging a breach of that condition, either general or special as the case may require. If the defendant by his plea admit that the condition has been broken, he concedes the plaintiff's right to recover; and, by’ not denying the breach assigned, but instead of doing this, interposing the general plea of non damnificatus, he, in effect, admits the breach.”

But if the plea of non damnificatus had been originally admissible in this case, the Court was right in rejecting it at the time it was offered. On the 27th of March 1841 the defendant plead “conditions performed,” to which the plaintiff replied specially, by three several assignments of breaches. On the 1st of November 1842 the defendant tendered the plea of non damnificatus, in addition to his former plea of “conditions performed,” which was objected to by the plaintiff and rejected by the Court. And thereupon the defendant rejoined to the replication to his former plea. Now wherever the plea of non dam-nificatus is a good plea, it is' because it is in the nature of a plea of performance; *“being used,” as Stephen on Pleading, p. 388, says, “where the defendant means to allege that the plaintiff has been kept harmless and indemnified, according to the tenor of the condition.” Where then the plea of non damnificatus is a good plea, it is equivalent to the plea of “conditions performed.” And the latter plea having been put in more than eighteen months before the former was tendered, there could have been no necessity for the former. If the former had been also put in, the replication and issue thereon would have been the same as on the plea of “conditions performed.” The defendant has had every benefit under the issue made up on the plea of “conditions performed,” which he could have had under the same issue made up on the plea of non dam-nificatus. The question involved in the issue was whether the debt decreed to be paid by William S. Archer as administrator of John Archer of Amelia, to the administrator of Judith Archer, was, at the time of pronouncing the decree, a debt due from the estate of John Archer of Chesterfield, or a debt due from the estate of John Archer of Amelia. If the former, then it is certain not only that the condition was broken, but that the plaintiff was damnified to the extent of one fifth of the amount of the said decree.

The other error assigned, is the refusal of the Court to give the instruction asked for on the trial of the cause. That instruction was “that as John Archer of Chesterfield devised a tract of land for the payment of the debt due Judith Archer, that debt did not create a lien on the personal estate of the testator, unless the land proved insufficient for that purpose.” I think that the question involved in that instruction was an abstract one, and its solution by the Court was not necessary to a proper decision of the case, and might have embarrassed the jury. The only issue was, whether the debt decreed to Judith Archer was, at the time of the decree, *due from the estate of John Archer of Chesterfield, or from the estate of John Archer of Amelia. It was at one time, undoubtedly, the debt of the former. When and how did it cease to be so? The defendant contended that the land devised was the primary fund for the payment of this debt; that it was sold and the proceeds received by the executor; and that when the proceeds were so received, pro tanto at least, the debt to Judith Archer became the debt of the executor. On the other hand, the executor contended that he had paid the first instalment of the purchase money of the land to Judith Archer, but she refused to receive the other two instalments; and he had accordingly applied them to the payment of other debts of his testator’s estate; had credited them in his executorial account, on which there was a balance due to him by the estate; and that thus the residue of the debt to Judith Archer was in fact the debt of his testator’s estate; whether the land was the primary fund for the payment of said debt or not. In support of his pretensions, the defendant exhibited the record in the case of Archer’s adm’r v. Robinson &c., reported in the name of Robinson v. Archer, 5 Rand. 319. That was a suit brought by William S. Archer, administrator of John Archer of Amelia, against the legatees of John Archer of Chesterfield, to recover a balance alleged to be due by the estate of the latter to the estate of his executor John Archer of Amelia; and to obtain indemnity against any outstanding claims against the said testator’s estate. In that suit the execu-torial account was settled; the proceeds of the sale of that land devised for the payment of Judith Archer’s claim were credited, and the payment of the first instalment on account of that claim was debited to the estate; and a balance was ascertained to be due to the executor of 3061 dollars and 13 cents; for proportionable parts of which and interest, a decree was rendered against the legatees respectively. From '>:‘that decree an appeal was taken, and this Court dismissed the bill as to every purpose, except for the purpose of having proper refunding bonds taken from the legatees or their representatives, to indemnify the estate of John Archer the executor against any sums which had been or might be recovered against the estate of John Archer of Chesterfield since the death of the executor. The Court in its opinion said that the most certain way of obtaining justice in this case is to consider all matters between the executor and legatees, so far as relates to actual receipts and disbursements by the executor up to the time of his death as finally’ closed” &c. In the account of these receipts and disbursements, we have seen that while the whole purchase money of the land was credited to the estate, the amount of the first instalment only was charged as having been paid to Judith Archer. The balance of her claim was reported as an outstanding claim against the estate, and no other outstanding claim was reported. The effect'of the decision of this Court was to confirm the settlement of the executorial account, (except that the balance reportéd to be due by the estate to the executor was extinguished;) and of course to leave the balance due to Judith Archer an outstanding debt of the estate. The main, if not the only, object of requiring a refunding bond doubtless was to provide indemnity against that debt, for which a suit was then pending, and, ten years thereafter, a decree was rendered against William S. Archer administrator of John Archer of Amelia. There is nothing in that decree which can prejudice the right of William S. Archer to recover on the refunding bonds of the legatees of John Archer of Chesterfield. The Court declined giving a decree over against them, express^ on the ground that the remedy was at law on the refunding bonds.

The counsel for the appellant also contended that the opinion of the Circuit court set forth in the second *bill of exceptions taken on the trial of the case was erroneous. After the plaintiff had offered in evidence the bond on which the suit was instituted, and the record in the case of Archer’s adm’r v. Archer’s adm’r & als.; and the defendant had offered in evidence the record in the suit of Archer’s adm’r v. Robertson & als.; (which bond and records are inserted in the bill of exceptions;) the plaintiff offered in evidence an execution and the return thereon, issued in the former suit; to which execution going in evidence to the jury the defendant objected; but the Court overruled the objection and permitted the execution to go as evidence to the jury; to which opinion of the Court the defendant excepted. The execution is not inserted in the bill of exceptions. It is true, as a general rule, that when an exception is taken to the admission of evidence, its admissibility must appear upon the record, or the judgment will be reversed. And it is also true that where the evidence is documentary, the insertion of the document in the bill of exceptions is generally the best mode of shewing its admissibility. But the insertion of the document in the bill of exceptions is not necessary, if its admissibility otherwise appears upon the record. The case of Hairston v. Cole, 1 Rand. 461, was relied on in the argument. But that case materially differs from this. The opinion of the Court in that case is very short, and is in these words, “the statement in the bill of exceptions that a manuscript purporting to be a copy of an act of the general assembly of Virginia, entitled an act &c., is too imperfect to enable the Court to pronounce any opinion thereon, it not being stated that the said copy was authenticated and how authenticated, nor is the said transcript set out in the bill of exceptions. The judgment is therefore reversed and the cause remanded for a new trial.” There it did not appear on the record that the manuscript purporting to be *a copy &c., was duly authenticated. If it had so appeared, it is obvious from the language of the Court, that the said manuscript would have been considered admissible evidence. Its relevancy to the matter in controversy, seems not to have been questioned; and was probably apparent on the record. Whether it was a duly authenticated copy or not, appears to have been the only question on which its admissibility depended. But here the original execution and return thereon, and not a copy, much less • a manuscript purporting to be a copy, were offered in evidence, and the only question on which their admissibility depended was as to their relevancy. Were they relevant? I think they' were. The suit was brought by a personal representative, on a refunding bond, for a just proportion, being one fifth of a debt of John Archer of Chesterfield that had been recovered against the plaintiff. The record of the suit in which the recovery had been obtained was offered in evidence by the plaintiff, without objection from the defendant. The execution on the decree rendered in that suit and the return thereon, were then offered in evidence by the plaintiff, and were objected to; but no ground of objection is stated. The record of the suit being admissible, indeed necessary, evidence in the case, it seems to follow, as a matter of course, that the execution and return, which are matters of record, and in some sense at least a part of the record of the suit, are also admissible, if not necessary evidence in the case, to shew whether the amount of the decree was paid or not, and what was the amount, if paid. The objection in this case must be regarded as a general objection to the admissibility of an execution and return in such a case without reference to any particular ground of objection; and so regarded, it was properly overruled. If there had been any such ground of objection in this case, it behooved the exceptant to set it forth; and not having done so, it is fair to presume that none existed.

*The counsel for the appellant also contended that the Circuit court should have rendered judgment for the defendant, non obstante veredicto; or, at least, to have awarded a repleader; on the ground that the breaches assigned in the replication were insufficient, and the issue on which the verdict was found was immaterial. It was contended that the condition of the bond, properly construed, was refer-rible only to any recovery which might be had against William S. Archer as the representative of John Archer of Chesterfield. And that the recovery in this case as set out in the replication and shewn by the record therein vouched, being a recovery against him as administrator of John Archer of Amelia, though on account of assets received by the latter as executor of John Archer of Chesterfield, the condition was not broken. I think the condition of the bond refers to such a recovery as is shewn by the replication and record; and that the bond was intended, and properly so, to indemnify the estate of John Archer of Amelia against any recovery which might be had against it in respect of the assets of his testator by him received and distributed among the legatees. The testator had been long since dead, and his estate fully administered by his executor. There was no occasion for an administrator de bonis non, for there were no remaining assets to be administered. If there were any outstanding creditors, their recourse would properly be against the estate of the executor, who as to them had committed a dev-astavit ; and whose representative, in the event of a recovery against him by any such creditors, should have recourse over against the legatees for whose benefit the devas-tavit was committed. The bond was intended to provide for that recourse against the legatees. William S. Archer the representative of the executors, in effect if not in form, represented that portion of the estate of the testator for which the estate of the executor was responsible to the creditors of the testator; and the decree *of Judith Archer before mentioned, was a recovery against William S. Archer as representing the estate of John Archer of Chesterfield within the meaning of the bond. I think the breaches, or at least the second and third of them, were well assigned, and that the issue was material.

I am for affirming the decree.

The other Judges concurred in the opinion of Judge Moncure.

Judgment affirmed.  