Dickinson v. Brick

3 N.J.L. 694

• Court: Supreme Court of New Jersey
• Decided: September 15, 1810
• Status: Published

Opinion

On the opening of this cause,

Pennington, J.

— Observed, that admitting that an action of debt could be maintained on a sentence or decree of the Orphan’s Court, and declared on as such, and that the proceedings were in every other respect regular, which he much doubted, yet he could not perceive from the declaration of the plaintiff below, in £*] what manner John Dickinson, the defendant below, was answerable for the demand of Brick. The decree of the Orphan’s Court ascertains, it is true, that a sum of money is due to William Brick; but from whom is it due? The record is silent. It does not appear from the record, that John Dickinson was a party before the Orphan’s Court; and if not, how could a judgment be rendered against him there'; iior does' the record show a judgment or decree against him; he doé's not appear to be the representative of his father, Thomas Diclci'nson, find so liable ifi that capacity.

Mr. L. H. Stockton and Mr. Ewing, for the defendant in error: — It is stated in the declaration that the iriestate of the plaintiff below, was the testamentary guardián’ óf the defendant, and that the money was due to him in that capacity ; and although it is also stated that the intestate of the plaintiff was executor of Thomas Dickinson, yet that part can be struck out as surplussage, and then it will stand as so much money due to the plaintiff, as administrator of William Dickinson, the testamentary guardian of John Dickinson, the defendant.

— It is stated that the money is due in both capacities; can you strike out one and leave the other $ if you strike the whole of the additions out, how do you connect the’ plaintiff with the’defendant at all ? But suppose it could be' done as you say: It would appear then by the record that a sum óf money was due tó the estate of the plaintiff’s inféstate, which money was' due to the' intestate as testamentary gúardíari tó the defendant; it would not, even in that case, follow that the defendant below was responsible for the money; it might have been advanced,by the direction of the testament creating the guardianship, án'd the estate of Thomas Dickinson yet liable.

The Cotjkt took time till the next day to look into £*] and examine the case; and then gave an unanimous opinion that the declaration was insufficient to maintain an action.

Judgment reversed.