Parker v. Thompson

30 N.J.L. 311

Opinion

The opinion of the court was delivered by

Elmer, J.

The plaintiff in the justice’s court, who is the defendant in this certiorari, sued the defendants, as executors of tlieir own wrong of Mary Parker, deceased, to recover the' •amount of a judgment obtained by liim against Joseph Parker, who is still living, and the said Mary Parker.

It is now objected that this action cannot be sustained. I am not satisfied, however, notwithstanding what was said by one ■of the judges in the case of Wade v. Potter, 2 Oreen 278, that our statute does not cover this case. Nix. Dig. 542, § 4.

* The words are, that the representatives of one jointly bound with another for the payment of any debt may be charged, by virtue •of such obligation, as if the obligators had been bound sever•ally as well as jointly, and are, in my opinion, broad enough to cover the case of two or more jointly bound by a judgment. There is no force in the objection, that if a new judgment may be obtained against the representatives of one who is deceased, there will be two judgments for the same'debt; this being no more than what may happen in any case where two or more are bound severally. But it is not necessary to decide this question.

The judgment is erroneous for other reasons. It appears, by the transcript of the justice, that the only evidence of the plaintiff's demand was his own testimony and the record of the original judgment. The defendants being sued in a representative capacity, the plaintiff ivas not a competent witness. There was therefore no legal evidence to charge the ■defendants as executors of their own wrong.

The judgment against executors must be special, and not .general. Penn. 457; South. 686; 1 Wm's Ex’rs 142. Our statute, Nix. Dig. 255, § 9,† provides that executors of their own wrong shall be answerable so far only as the goods and •debts coming to their hands will satisfy. If facts are proved in a justice's court to render them liable, the judgment should be that the plaintiff recover the debt and costs, to be levied out of the assets of the testator, if the defendant have so much, but if not, then to levy so much as they are liable for and the costs out of their own goods.

The judgment must be reversed.

Cited in Thompson v. Johnson, 11 Vroom 222.

Rev., p. 742, § 3.

Rev., p. 396, § 3.