Fairfax Executor v. Ann Fairfax

• Decision Date: 01 February 1809
• Citation: 9 U.S. 19,5 Cranch 19,3 L.Ed. 24
• Parties: FAIRFAX'S EXECUTOR v. ANN FAIRFAX
• Court: U.S. Supreme Court

9 U.S. 19

5 Cranch 19

3 L.Ed. 24

FAIRFAX'S EXECUTOR v. ANN FAIRFAX.

February Term, 1809

ERROR to the circuit court for the district of Columbia, sitting at Alexandria, in an action of assumpsit brought by the defendant in error against the plaintiff in error, as executor.

Upon the issues of non assumpsit and plene administravit, the jury found a general verdict, which was recorded in this form: 'We of the jury find the issues for the plaintiff, and assess the damages to two hundred and twenty dollars and ninety-five cents.' Upon which verdict the judgment of the court was 'that the plaintiff recover against the defendant her damages aforesaid in form aforesaid assessed, and also her costs by her about her suit in this behalf expended, to be levied of the goods and chattels of the said Bryan Fairfax, deceased, at the time of his death, in the hands of the said defendant to be administered, if so much, &c. but if he hath not so much, then the costs aforesaid to be levied of the proper goods and chattels of the said defendant; and the said defendant in mercy,' &c.

The error relied upon by the plaintiff in error was, that the jury had not found the amount of assets in his hands to be administered.

Swann, for the plaintiff in error, having cited Esp. N. P. 263. and the case of Booth's Executors v. Armstrong, 2 Wash. 301., was stopped by the court, who requested to hear Mr. E. J. Lee on the other side. [20]

E. J. Lee, contra.

There was no necessity for the jury to find specially the amount of the assets, for if ever so small a sum had been found, the judgment would have been the same as if assets had been found to the whole amount of the plaintiff's claim. The sum found by the jury would not alter the judgment. It would still have been for the whole debt de bonis testatoris si, &c. and si non, then the costs de bonis propriis.

But here the jury have in substance found that the defendant had assets more than sufficient to satisfy the debt due to the plaintiff; for that is the allegation of the plaintiff in her replication, and the jury have found the issue for the plaintiff upon that replication.

It is not more necessary to find specially upon this issue than upon non assumpsit or nil debet.

There is a difference between this case and that of Booth's Executors v. Armstrong, 2 Wash. 301., for there the finding was not, as here, generally, 'we find the issues for the plaintiff;' but 'we find for the plaintiff the debt in the declaration mentioned, and one penny damages.' The finding there was special, and could not be construed to be a finding of the matter of the plaintiff's...