Givens v. Porteous

12 S.C.L. 379

Opinion

"Where the plaintiff sued the defendant in debt, on judgment obtained against him as administrator, suggesting a devastavit, the' original judgment to which the defendant had not pleaded plane administravit, pnd the execution issued on that judgment and returned nulla bona, also, the defendant’s account as administrator, filed with the ordinary and sworn to, admitting a large balancein his hands due to the estate, exceeding the amount of the judgment, is quité sufficient evidence of. a devas-tavit.” See (2 Phillips Ev. 296, Tappan vs. Kain, 12 Johns. 120.) Indeed it has often been held, that “ a former judgment against executors, and a Ji. fa. returned nulla bona, are conclusive evidence of a devastavit.” See Platt vs. Robins & Swartwout, (1 Johns. Ca. 276, and a number of cases there referred to : as Salk. 310. 1 Lord Raym, 589.) Erving vs. Peters, (3 Term Rep. 685.) — R

Where the verdict.is for damages beyond the amount laid in the writ,- the plaintiff must enter a remittitur for the surplus, or a venire de novo will be awarded. See Mooney vs. Welsh, (1 Const. Rep. 133,) also Brown vs. Gibson, (1 Nott & M‘Cord, 326.)