Sturdivant's adm'r. v. Raines's ex'or.

1 Va. 481, 1 Leigh 481

Opinion

Carr, J.

reviewed the cases cited at the bar, and then added—Without stopping to inquire whether this court went too far in Gardner v. Vidal, in requiring that the verdict should find the amount of assets, at the time of plea pleaded, it seems clear to me, from the whole tenour of these decisions, and the reason on which they stand, that the verdict before us must be pronounced insufficient. All the cases decide, substantially, I think, that it must appear from the verdict, that at the institution of the action, there were in the hands of the representative, assets not bound by superiour claims, sufficient to discharge the debt due the plaintiff; or if not sufficient, that the amount of such assets must be found. Here it is found, that assets more than enough to pay the debt came to the defendant’s hands: but whether he had them at the institution of this suit; whether before that he had not properly disbursed them; or whether, if he ' still held them, they were not bound by prior judgments fee. does not appear at all. There is, therefore, all that uncertainly and insufficiency, for which, in the other cases, the verdicts were set aside; and I think this must share the same fate.

The other judges concurred, and the judgment was reversed.