Opinion
June, 1818.
This is a writ of error directed to the Justices of the Court of Common Pleas.
This was an action of debt brought to May Term, 1811, of the Court of Common Pleas for New Castle County, by the husband, for a legacy bequeathed to the wife during coverture. The wife was alive, and was not a party to the suit. It is entered on the record, bond filed May 11, 1811. The praecipe is dated May 11, and writ issued 15th. September 20, 1811, the declaration was filed, as follows:
Henry Colesberry, late of the county aforesaid, executor of the last will and testament of Levi Colesberry, deceased, was summoned to answer Charles Anderson of a plea that he render to him $120 which from him he unjustly detains, etc. And whereupon the said Charles sayeth that whereas the said Levi deceased in his lifetime, to wit, the 19 February, 1808, at the County aforesaid, by the name of Levi Colesberry, etc., made his last will and testament in writing bearing date the same day and year aforesaid, and thereby gave and bequeathed to his sister Mary Anderson, the wife of the said Charles, the sum of $120 to be paid at the end of one year and three months after the decease of the said Levi. And of his said will did appoint the said Henry Colesberry executor as by the same will remaining of record in the Office of the Register for the probate of wills and granting letters of administration at New Castle for the county aforesaid more fully appears. And the said Charles in fact sayeth, that afterwards, to wit, the 18 April, 1808, the said Levi Colesberry died at the county aforesaid and the said Henry then and there duly proved the said will and took upon himself the burden of the execution thereof, and then and there possessed himself of the personal estate of the said Levi at the time of his decease sufficient to satisfy all debts and legacies of the said testator, nevertheless the said Henry (although often required and tendered a bond to refund the same in case it should be necessary according to the provisions of the Act of the General Assembly in such case made and provided, which said bond is filed of record in the office of Prothonotary of the county aforesaid) the said $120 the said Henry has not paid, but the same to him to pay has hitherto altogether refused, and still does refuse to the damage of the said Charles $300. And therefore he brings suit.
Defendants plead nil debit, payment, discount, plene administravit and no assets ultra. Replications and issues.
The bond mentioned as having been filed May 11, 1811, is in the words following, to wit:
Know all men by these presents that we, Charles Anderson, Mordecai McKinney, and James Foote, all of the village of Newport in the County of New Castle are held and firmly bound unto Dr. Henry Colesberry, executor of the last will and testament of Levi Colesberry, deceased, in the sum of $3000, lawful money of the United States to be paid to the said Henry Colesberry, his certain attorney, executors or administrators to the which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators jointly and severally, firmly by these presents sealed with our seals and dated the 9th day of May, 1811. Whereas the said Levi Colesberry by his last will and testament duly made and published, and dated 18 April, 1808, did give and bequeath unto Mary Anderson, the wife of the said Charles Anderson, a certain legacy in the words following to wit: "Fifthly I give and devise to my sister Mary Anderson in one year and three months after my decease the sum of $120." And whereas the said Levi Colesberry having appointed the said Henry Colesberry the executor of his said last will and testament, afterwards, to wit, on the 18 April, 1808, died without having first altered or revoked the same. And whereas after the decease of the said Levi the said Henry Colesberry duly proved the said last will and took . upon himself the administration thereof by reason whereof he became liable to pay to the said Charles Anderson in right of the said Mary Anderson the aforesaid legacy of $120. But whereas by an Act of the General Assembly of the State of Delaware the said executor upon paying the said legacy is entitled to a bond of indemnity in order to guard against a deficiency of assets to satisfy the debts and legacies of the said Levi, now the condition of the above obligation is such that if any part, or the whole of the said $120 shall appear to be wanting to discharge any debt or debts, legacy or legacies which the said executor shall not have assets to pay, that then if the said Charles Anderson shall return the said legacy of $120 or such part thereof as shall be necessary for the payment of the said debts, or the payment of a proportionable part of the said legacies then the above obligation to be void; otherwise to be and remain in full force and virtue.
The bond has the names and seals of Charles Anderson, Mordecai McKinney, James Foote, signed and affixed to it, and is attested by Jacob Ball, Benjamin E. Foote.
The cause was continued to December 19, 1815 when there was a trial, and a verdict for the plaintiff. The jury "do say that they find for the plaintiff and assess damages at $106.20, with six cents costs, besides the costs expended." Judgment nisi.
At the trial a bill of exceptions was taken to the opinion of the court, and charge to the jury. The bill of exceptions is as follows:
And now, to wit, the 19 December, 1815, at the trial of the issues joined in the above cause, the said Charles Anderson by his counsel learned in the law, to maintain and prove the said issues on his behalf, then and there produced and gave in evidence the testament and last will of Levi Colesberry, deceased. Prout the same; and the testamentary bond of Henry Colesberry, executor of Levi Colesberry, prout the same, and gave in evidence by Jacob Ball, a writ produced and sworn, that Mrs. Mary Anderson was the sister of Levi Colesberry and the wife of the said Charles Anderson, at and before the decease of the said Levi. And farther to maintain the issues aforesaid on the part of the plaintiff, it was proved by James Foote, that a refunding bond was executed and tendered by the said Charles Anderson, according to the Act of Assembly in such case made and provided, prout the said bond.
And this said defendant to maintain and prove the issues on his part by the said Henry Colesberry, produced and sworn, gave in evidence that a certain book produced and: shown was the book of original entries of the said Levi Colesberry, deceased, that the same was in the handwriting of the said Levi Colesberry; that the account against Mary Walsanen was in his handwriting, and that two paper writings produced and shown were found in the said book, and belonged to the same. And farther to maintain and prove the said issues on the part of the said defendant the said defendant farther gave in evidence by John Crow, a witness, produced and sworn, that he knew Levi Colesberry in his lifetime and also Mary Walsanen, who was the sister of the said Levi, that the said Mary intermarried with Charles Anderson in 1802, that Levi Colesberry was one of the executors or administrators of Walsanen, and had the agency or management of the farm on which Mrs. Walsanen lived, that the accounts between Mrs. Walsanen and Levi Colesberry, as to that agency, were settled about the first of May, 1800, that he, the said John Crow, drew the last will and testament of the said Levi Colesberry. And the said defendant farther to maintain the issues aforesaid on his part, offered to prove by the said John Crow that the said Levi Colesberry intended and declared by giving the legacy aforesaid in the said will contained, to release or extinguish a certain debt due from the said Mary Walsanen,. afterwards Mary Anderson, and contained in the book of accounts of the said Levi. And the said Justices did therefore reject the said testimony, and refused to admit the same in evidence on the trial of said issues. And the said defendant, farther to maintain the issues on his part, offered in evidence the book of original entries aforesaid of the said Levi Colesberry, prout the same book, and the Court thereupon did reject the said book of original entries, and refused to receive the same in evidence.
And at the trial of the said issues the counsel for the defendant farther insisted and argued before the said court that the said plaintiff was not by law entitled to recover in the same action, inasmuch as the said legacy appeared to be bequeathed to Mary Walsanen, wife of the plaintiff, and she the said Mary was not joined in the said suit, and prayed the said Justices so to declare the law in and upon the premises to the said jury. Nevertheless the said Justices, then and there, at the said trial, did declare the law to the jury in the words following, to wit: That the plaintiff was entitled to recover in the said action without his wife being joined in the same, and with the said charge left the same to the jury.
And thereupon the said jury then and there gave their verdict for the plaintiff for the sum of $166.20, whereupon the said defendant by his counsel, because the matters aforesaid in their exception offered do not appear in the record of the verdict aforesaid, did allege, and write his exception aforesaid to the opinion of the said Justices, and require that the said Justices would set their seals to the bill of exception, according to the provision of the statute in such case made.
The bill is signed by James Booth, Chief Justice. . . .
At this point, Ridgely's Notebook II, 109, the account of this case is interrupted ; it is resumed at 118.
This case was held under advisement until the [___] when THE CHANCELLOR delivered the opinion of the Court.
Blank in manuscript.
Notwithstanding the numerous errors assigned in this cause the counsel for the plaintiff in error relied upon three only as sufficient for a reversal of this judgment. First, it was insisted on that the suit should have been brought in the names of the husband and wife. Secondly, that the plaintiff should, in his declaration, have referred to the Act of Assembly authorizing this action, and that by omitting so to do, this is an action at common law, and therefore is not maintainable. Third, that this is an action of debt for $120, and that the jury, without finding the debt, merely find for the plaintiff and assess damages to $106.20.
1. The cases which have been cited seem to involve some doubt but the result of them is that the suit may be brought in the name of the husband alone. Questions upon legacies in England belong to the Court of Chancery. They cannot perhaps be compared to bonds made to a feme covert. A husband could not file a bill in chancery in his own name, for a legacy bequeathed to his wife while a feme covert. 5 Ves.Jr. 515. In the case of Garfuth v. Bradley, 2 Ves. 675, the opinion is pretty explicitly expressed that suits may be brought by the husband alone for chose in action which came to the wife during coverture. For the recovery in his own name is equal to reducing it into possession. The husband according to our Act of Assembly becomes bound to refund in case of debts, and upon the whole the suit in the name of the husband is well enough. See 1 Vern. 261. 2 Bac.Abr. 290 D. (NOTE. See 1 H.B1.108 which seems contra.)
2. As to the declaration, that is well enough. All that is necessary is that the plaintiff should show in his declaration that his case is within the Act of Assembly, and that he has performed all which the Act requires to entitle him to this action. The Act need not be referred to nor recited. It is a public act, and the judges are bound to take notice of it. The right of the plaintiff below arises under the will. This particular remedy is given by the Act of Assembly, and it is sufficient that he brings his case within the Act, 1 Dyer 3-85a; 1 Com.Dig. 329, title, "Action upon statute," (N); Bull.N.P. 3, 4. The case of Reddam and Davis v. Rogers, qui tam, decided in this Court at August, 1813, is not like the present one. The plaintiff below did not state his case according to the Act of Assembly. The Court observed, "He (the plaintiff below) must charge the very offense which the Act intended to prohibit so as to precisely bring the case to that for which the penalty is given." He, the plaintiff below, has brought his case within the Act, and that is sufficient. He has shown that he has done all which Act requires to entitle him to this action and that the Act was intended to furnish a remedy in cases like this.
3. As to the verdict, it is thus entered: They find for the plaintiff and assess damages to $106.20 etc. This is error for they ought to have found the debt, and then the damages on occasion of the detention of that debt. But this verdict is amendable in the court below, for it is clear from the record that the jury intended to find the debt and to assess the damages. Part of the debt was satisfied, and the $106.20 include the whole debt due and the damages, after allowing the payments and calculating the interest. The mistake was committed in entering the verdict for damages. 1 Com. 471; Cro.Jac. 185; 1 Salk. 47, 53. See 1 H. Bl. 238; 1 Bun. 322; Str. 1197; 1 Wils. 303; 1 Com. 484(2B); 1 Dall. 462.
No other errors were insisted on and the Court unanimously affirmed the judgment.
NOTE. The cases of Atkins and wife v. Hill, Cowp. 284, Rose and Nancy, his Wife, v. Bowles and Read, Executors of Bowles, 1 H.B1. 108, were actions for legacies left to the wife after marriage, and in the latter case it was adjudged that she should join.