State ex rel. Sprigg v. Jones

Le Grand, C. J., delivered the opinion of this court. This is an appeal from the decision of the Superior Court of Baltimore city, sustaining the demurrer of the appellee to the replication of the appellant to the plea of the appellee, under the following circumstances: This proceeding commenced under the act of 1720, chapter 24, entitled, “An act to restrain the rigor of prosecutions on ⁹² administration or testamentary bonds.” As the act is short., we incorporate it, that our opinion may the more distinctly appear. Its preamble and enactment are, as follows: “Whereas it is represented by some of the justices of the provincial court, that a most oppressive and pernicious practice is introduced of putting testamentary and administration bonds in suit in the provincial court for the non-payment of small debts recovered in the county courts, without ever suing out. writs of fieri facias or other executions to affect the estate of the deceased in the executors’ or administrators’ hands, ok without any insufficiency of such executors or administrators, whereby the act, entitled, an act to restrain the ill practices used by sheriffs in taking goods byfieri facias and selling them by venditioni exponas, is entirely evaded so far as it relates to executors and administrators, and the person and sureties of such executors. and administrators are affected by such suing the said bonds, instead of the effects of the deceased; for prevention whereof for the future: “Be it enacted,” «fcc., «fee., “That it shall not be lawful for any creditor or creditors to prosecute any such administration or testamentary bond for any debt or damages due from or recovered against any testator or intestate, or their effects, before a non est inventus on a capias ad respondendum be returned against the executor or administrator, or a fieri facias returned nulla bona by the sheriff of the county where such executor or administrator lives, or where the effects of such deceased lies, or such other apparent insolvency or insufficiency of the person or effects of such executor or administrator, as shall, in the judgment of the provincial court that hears the cause, render such creditors remediless by any other reasonable means save that of suing such bonds, on pain that such person or persons that shall cause such bonds to be sued contrary to the true intent and meaning of such act, shall be condemned in full costs of suits, to be adjudged by such provincial court to the defendant or defendantsyhat shall be so sued, against the person or persons that shall cause the same to be sued, and shall award execution thereof as usual in other cases. “ And be it further enacted, as aforesaid, That it shall and ⁹³ may be lawful for tbe defendant or defendants in such suits to give this act and the special matter in evidence without specially pleading the same; any law, statute, usage or custom to the contrary notwithstanding.” The plaintiff in this action, on the 28lh of August 1852, commenced an action of debt, in the Superior Court of Baltimore city, against the defendants, upon the testamentary bond of Mary J. Jones, executrix of Andrew D. Jones. The declaration is in the usual form, setting out tbe breaches.

The defendants pleaded specially, substantially as follows: that whilst they admit the matters and things charged and averred against them in the declaration, they say, that after the return of the writ of capias ad respondendum “non est ” as against Maty J. Jones, by the sheriff of Baltimore county, as alleged in said declaration, the said Mary Jane Jones didy appeared in the said court, to which the said writ was made returnable, and at the same term thereof, to wit, on the 12th day of August, the said Mary filed her plea to the said declaration, of all which plaintiff had notice, and afterwards, on the 30th day of November 1852, filed its replication to the plea, and that the case, on such pleading, is now pending, &c. To which plea the plaintiff replied, that after the return of “non esi,” on the 14th day of July 1852, the court adjourned until the 27th day of October