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U.S. Supreme Court

McKnight v. Craig's Administrator, 10 U.S. 6 Cranch 183 183 (1810)

McKnight v. Craig's Administrator

10 U.S. (6 Cranch) 183




In this case it was decided:

In Virginia, if the defendant die after interlocutory judgment and a writ of inquiry awarded, his administrator, upon scire facias, can only plead what his intestate could have pleaded.

Error to the Circuit Court for the District of Columbia sitting at Alexandria in an action of debt upon a judgment and devastavit, brought by McKnight against Craig as executor of Mitchell.

After an office judgment by default against Craig, and a writ of inquiry awarded in November, 1807, at the rules, Craig died. At the July term, 1808, his death was suggested, and a scire facias awarded against I. G. Ladd, his administrator. At the July term,

Page 10 U. S. 184

1809 (being the fourth term after the office judgment), Ladd appeared by his attorney and offered to plead a special plea of plene administravit by himself as administrator of Craig, to which the plaintiff objected, but the court overruled the objection and admitted the plea to be filed.

The substance of the plea was that Craig had made a deed of trust of certain real estate to secure Ladd for his endorsements for Craig at the bank, by which deed Craig covenanted to indemnify Ladd. That Ladd had endorsed the notes of Craig to the amount of $8,000, which were discounted at the bank, and continued the endorsements to the time of Craig's death. That the bank had recovered judgment against Ladd as endorser of some of those notes to the amount of $6,009, and that Ladd had paid other of the said notes to the amount of $3,174 to avoid being compelled by suit to pay the same. That the estate, mentioned in the deed of trust, having been sold, produced only $4,095, whereby the estate of Craig became indebted to Ladd in the sum of $5,138, and so much of the estate of Craig is liable to be retained by Ladd in satisfaction.

That Craig was bound to several other creditors by specialties in large sums amounting to $10,000, and suits thereupon have been brought against Ladd and are now pending; that he has in his hands personal estate of Craig to the amount of $960 only, which is liable to be retained by him in satisfaction of the damage he has sustained by his endorsements for Craig, by virtue of the covenant for his indemnification, and to pay the specialty creditors aforesaid.

To this plea the plaintiff replied the office judgment and writ of inquiry awarded against Craig in his lifetime in this suit, the subsequent death of Craig, and the scire facias against Ladd, as his administrator, returnable to November term, 1808.

The defendant rejoined that Craig died on the ___ day of _____, in the year 1807.

Page 10 U. S. 185

To this rejoinder the plaintiff demurred and assigned as cause of demurrer that the rejoinder is no answer to the replication, and is a departure from the plea.

The court below being of opinion that the plea was good and the replication bad, rendered judgment upon the demurrer for the defendant.

The plaintiff sued out his writ of error.

Page 10 U. S. 187

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court to the following effect:

The act of assembly of Virginia is copied almost literally from the English statute of 8 and 9 W, III, c. 11. The case in 6 Mod. is a decision expressly upon that statute, and is precisely in point, that the defendant upon the scire facias can only plead what the intestate could have pleaded, and that it is not to be considered as a proceeding against the representative of the deceased, but a continuance of the original action.

The plea is such as could not have been pleaded in the original action, and is therefore bad.

The judgment must be

Reversed and the cause remanded for the defendant to plead to the original action if he should think proper. *

To a question by E. J. Lee, THE CHIEF JUSTICE answered that if the plaintiff in error should obtain a judgment in the court below, it will of course be with costs. So in all cases of reversal, if this Court direct the court below to enter judgment for the plaintiff in error, the court below will, of course, enter the judgment with the costs of that court.

* The court below considered this case as coming within the act of Congress, vol. 1, p 71, § 31 passed 24 September, 1789, which authorizes the court "to render judgment for or against the executor or administrator, as the case may require." It does not appear whether that act was taken into consideration by this Court.

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