Washington County NcArchives Court.....Armistead, V. Harramond 1826
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:27 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

CHAIRMAN OF WASHINGTON COUNTY COURT, to the use of Armistead, v. HARRAMOND et 
al.

From Washington.

A judgment obtained against a deceased person during his lifetime, and a 
second judgment obtained thereon against his administrator, after his death, 
is both as to the administrator and his securities, evidence of a debt due by 
the intestate; but it is not evidence against the securities that the 
administrator has or had assets to discharge it.

But if the administrator has returned an inventory, such inventory is prima 
facie evidence against the securities of assets to that amount.

William B. Harramond, the defendant, had been appointed by Washington County 
Court administrator upon the estate of Benjamin Fessenden, and the other 
defendants were Potter, one of his securities in the administration bond, and 
Flower and Fagan, administrators of Webb, the other security.

This action was brought upon the bond, and upon the trial before Nash, Judge, 
the real plaintiff, after proving the bond, gave in evidence the record of a 
judg-(340)ment obtained by him against Fessenden in his lifetime, which was 
objected to, but received by the Court. He further produced the record of a 
judgment obtained by him on the judgment last mentioned, against Harramond, as 
administrator of Fessenden, on which an execution had issued against the goods 
and chattels of Fessenden in the hands of Harramond, which was returned "nulla 
bona." At the succeeding term, the plaintiff and Harramond corrected by an 
entry on the record, a mistake which had been made in the calculation of the 
amount of the judgment against Harramond, an alias issued for the amount as 
amended, and was returned "nulla- bona." Plaintiff's writ issued before this 
last execution was returned.

The plaintiff further produced the inventory returned by the defendant 
Harramond as evidence of assets in his hands.

The defendants, Potter and the administrators of Webb, offered in evidence 
certain bonds, notes and open accounts against Fessenden, which, as they 
alleged, Harramond had paid before he had any notice of the judgment against 
his intestate. The evidence was rejected, and the Court instructed the jury 
that the record of the judgment against Harramond was no evidence against the 
other defendants.

The jury found a verdict against all the defendants, and the case stood here 
upon a rule to show cause why there should not be a new trial.

Gaston & Hogg, for plaintiff.

Hall, Judge.-The judgment obtained against the defendant's intestate 
(Harramond), as well as that obtained against Harramond himself as 
administrator, is evidence of a debt due from his intestate, and he is bound 
by such evidence. The securities of Harramond, the other defendant, are not 
concerned in interest, whether such debt is due or not; because if the assets 
are not liable to creditors they are subject to the claims of legatees; and 
the administrator. Harramond, is as much bound for the faith-(341)ful 
administration in the one case as in the other, and it is only for the 
faithful administration of the personal estate by the administrator, that his 
securities are bound.

But although the judgment against the administrator is evidence against him, 
of a debt due by the intestate, and is evidence also of assets in his hands to 
discharge it; and although for the reason before given, it is also evidence of 
a debt due, as far as it relates to his securities, yet it is not evidence 
against them that he had assets to discharge it, and thereby subject them to 
the payment of the debt, in case nulla bona is returned on an execution 
against the administrator. Whether the administrator has wasted the assets or 
not, is an enquiry in which the securities are interested, and the judgment 
ought not to be introduced as evidence of the affirmation, because they are 
neither parties or privies to that judgment. This principle was laid down in 
McKellar et. al. v. Bowell & Campbell, ante 34.

But as to the question of assets, I think the securities are bound prima facie 
by the inventory returned by the administrator. They have stipulated in the 
administration bond that the administrator shall return a true and perfect 
inventory of the personal estate, and that he shall well and truly administer 
it, according to law. This is for the benefit of creditors and legatees, and 
when it is done, it should be evidence prima facie against them, of assets, to 
that amount; as evidence of the faithful Administration of such assets, would 
be evidence for them.

In the case of the Chairman of the County Court of Mecklenburg v. Springs (10 
N. C., 43), the judgment was certainly evidence to prove that a debt was due 
from the estate of Henderson, the intestate, to the plaintiff; but it was not 
admissible against the defendants, the securities of the administrator, to 
prove the fact, either that the administrator had assets or had wasted them; 
because if this was the case, they were liable for the amount; and that fact 
ought not to be proved by a judgment and pro-(342)ceeding, to which they were 
neither party nor privy; and it appears that it was in part offered in 
evidence for that purpose, and that that was the reason why an appeal was 
taken to this Court; for it does not appear that any other evidence was 
offered to prove assets in the hands of the administrator, or that he had 
wasted them. It is stated in the manuscript returned to this Court that the 
judgment with other evidence was offered, &c., but it does not appear what 
that other evidence was; we cannot take it for granted that it established 
assets in the hands of the administrator, and that the judgment was offered 
only to establish the fact, that a debt was due. If this was the case, it was 
admissible, but not to prove assets in the possession of the administrator, or 
that he had wasted them. For these reasons, I think the rule for a new trial, 
&c., should be discharged in the present case, the judgment was evidence of 
the debt, the inventory evidence of assets, &c. 

The rest of the Court concurring,

Judgment affirmed.

Approved. Jones v. Biggs, 33 N. C., 412; Strickland v. Murphy, 56 N. C., 242; 
Bond v. Billups, 53 N. C., 423; Brown v. Pike, 74 N. C., 531; Lewis v. Fort, 
75 N. C., 251; Speer v. James, 94 N. C., 417; Grant v. Reese, 94 N. C., 720; 
Morgan v. Smith, 95 N. C., 396; Leak v. Covington, 99 N. C., 559.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

File at: http://files.usgwarchives.net/nc/washington/court/armistea1466gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 7.3 Kb