Morris v. Hazzard

5 Del. 451

• Court: Superior Court of Delaware
• Decided: July 5, 1854
• Status: Published

Opinion

. The Court

said the suit was properly brought against the defendant personally; as, upon proof of assets, it became his debt. The Code provides that “ an action of assumpsit may be maintained against an executor or administrator for a legacy or distributive share; and assets in his hands to pay a legacy shall create a legal liability, and raise, a consequent promise to pay it. There shall be a legal liability to pay a distributive share, and consequent implied promise.” The facts stated in the declaration showing his appointment as administrator, his accounting, &c., are only inducement showing the foundation of the assumpsit. The verdict and judgment in a suit against him as administrator, would be a judgment against the estate; but the liability is a personal one. It is true that this produces an apparent difficulty in pleading outstanding liabilities, to which the assets are applicable, as such a plea would be more applicable to a demand against the estate, but the court apprehends it would be a good plea in this suit, as showing that there are assets applicable to the plaintiff’s claim. And additionally the Code provides a further remedy, by authorizing the court to “ exercise equitable powers, in requiring a plaintiff to give security to refund.”

Mr. Hazzard then moved to amend by pleading outstanding debts, which the court refused, as the plea had been already put in, demurred to, and withdrawn; and the case had proceeded so far 'in the trial; but, after verdict, on his motion, supported by affidavit setting out certain judgments that had been recovered against him, they required the plaintiff to give security to refund.

Verdict for plaintiff, $665 10.