Hoit v. Bradley

The opinion of the Court was delivered by

Chipman, Ch. J.

We are all clearly of opinion, not only, that the County Court had jurisdiction in this case, but that the remedy by scirefacias, can be had in that Court alone, where the judgment for the pénal sum of the administration bond, remains of record.

The proceedings in this case are not under the provisions of die Judiciary act, but under a provision contained in the 103d section of the probate act, it is a special provision, in a particular case.

By another provision of the probate act, the administration bond is directed to be taken to the Judge of probate, granting administration ; the general purpose of the condition of that bond is, to secure a faithful administration — to secure right and justice to be done by the administrator, to all who may have any interest in, or claim upon the estate. One part of the condition is, that the administrator, shall, on the settlement of the estate, deliver and pay to such person or persons respectively, as the Court of probate, by their decree or sentence, pursuant to the true intent and meaning of thp law, shall limit and appoint. This condition extends,as well to the debts and demands allowed and ordered to be paid, as to the distribution of the estate.

The remedy on this bond, provided by the 103d section of the probate act, before mentioned, is in substance — that, on application to the Judge of probate, by any person, who shall have been injured by a breach of the condition of the bond, the Judge, shall, on such applicant’s giving security for prosecution and the payment of costs, cause an action to be brought, in his, the judge’s name, on the bond; and shall certify to the Court in which the action shall be commenced, the name of the applicant, who shall be deemed the prosecutor. And, if the defendant shall plead performance of the condition, the prosecutor may assign as many breaches, affecting his interest, as he shall see fit; and the jury shall, on all the issues, assess damages for such breaches as the prosecutor shall prove; and, if a verdict be found against the defendant, the Court shall enter up judgment for the whole penalty of the bond, and shall issue execution in favor of the prosecutor, for such damages as shall be •found for him, and for costs. There is also a provision, in case of judgment on demurrer, confession or nildicit; and it is enacted, that the judgment for the penalty of the bond, stand as a security for any other or farther breach of the condition of such bond. And, that any person thereafter, w'ho shall have been injured, by the breach of the condition of such bond, may prosecute a scirefacias, on such judgment for the penal sum of the bond, against the defendants, and may assign any breaches affecting his right and interest, which being found, damages shall be assessed, and execution shall issue as in the former case.

Now as to the question of jurisdiction, this case differs not from a bond of indemnity, or any bond with a defeasance — the penalty of the bond, not the sum due by the condition, or the amount of damages sustained by a breach, determines the jurisdiction. This bond is, in effect, a bond of indemnity, and the statute puts the prosecutor for his own interest in the place of the obligee, who is in fact no more than a trustee. Nor is it any objection, that the prosecutor might have resorted to another remedy, which might change the jurisdiction : that the prosecutor might in this case have brought an action of debt or assumpsit, for the amount of his demand allowed by the commissioners, and ordered by the judge to be paid, before a justice of the peace. In all cases where there are different remedies, it is at the option of the plaintiff which he will pursue— that, of course, which he thinks most for his advantage, most effectual. >

In a case like the present, the administrators might have become insolvent: the creditor is under no obligation to try that question, before he shall resort to the bond.

I will put a case — An intestate had in his lifetime, recovered a judgment in the Supreme Court for a sum less than fifty three dollars, a ~um clearly within the jurisdiction of a Justice of the peace; the administrator may have the effect of that Judgment by an action of debt, or assumpsit, before a Justice of the peace, he may also have a .scirefacias to revive that Judgment, before the Supreme Court: no one will question his right to revive the Judgment by scirefacias, which must be brought in the same Court where the Judgment remains of record, and can be brought in no other Court. The law in the present case is the same; the Court, there fore reverse the Judgment of the County Court. And as the record of the judgment, upon which the scirefacias was brought, is not in this Court, but remains in the Court below, this Court cannot proceed to render the proper judgment-the cause is, therefore, remitted to the County Court, to proceed thereon as to law and justice appertains.