author: COLLIER, C. J.

text:
    WILLIAMSON et al. vs HILL.
    1. By the marriage oí a feme sole administratrix, the husband becomes joint administrator with her, and if the husband sue or be sued as administrator, the wife must be joined with him: Therefore,
    2. The decree of the Orphan’s Court against such administrator, cannot be regular, unless she be embraced in it. Though,
    3. In cases where the administrator may be charged in his own right, the action lies against the husband alone.
    4. Where one comes into an administrationf in right of his wife, he cannot urge against the claim of a distributee, the invalidity of the grant of adminisration, or thejurisdiction of the Court making the grant, which the wife had sought, and . which both had exercised. By the acceptance and exercise of the trust, the jurisdiction is admitted, and cannot after-terwards be controverted.
    5. Nor can a personal representative, object to a notice required in settlement of the estate, for the want of regularity; it not being intended for his advantage, but for the benefit of creditors and distributees.
    6. The statute of 1830, (Aik. Big. 1st Ed. 252) expressly authorizes a. decree by the County Court, in favor of legatees.

      Error to the Circuit court of Wilcox county;
    Proceedings in the Orphan’s Court, against an administrator with the will annexed.
    In the Orphan’s Court of Wilcox county, in vacation, on the eighth day of August, eighteen hundred and twenty-seven, upon the application of Lucy Mi Howell, widow of William H. Howell, deceased, for letters of administration, with the will annexed, on the estate of Caleb Howell deceased, it was made to appear to the court, by the will of said Caleb Howell, deceased, that William H. Howell, the deceased husband of said Lucy M., was appointed sole executor of said will; and it appeared, by the provisions thereof that a great portion of the estate of the said Caleb Howell, deceased, was bequeathed to Eliza Ann Howell, Justina A. Howell, William Forbes Howell, Caleb Monroe How'ell and Mary M. Howell; children of the’ said W. II. Howell, deceased, and Lucy M. Howell, and grand children of the said Caleb Howell, deceased; and it ap|";eared further to the court, by the production of the copy of the will of William II. Howell, deceased, duly authenticated, that the said Lucy M. Howell was appointed guardian to all the children of William H. Howell, deceased, and Lucy M. Howell; and also that the said Lucy M., widow aforesaid, was appointed executrix of the said last will and testament of William H. Howell, deceased, with Thomas Rhodes as executor: and it appeared also to the court, that the said Caleb Howell, deceased, at the time of his death,had no mansion house,, or settled place of residence, within this State, and that a considerable part of the property belonging to said estate, was, at that time,within the county of Wilcox, and that it was the request of said Lucy M. Howell, that her brother, Benjamin Williamson, should be associated with her in the administration. — It was therefore ordered, that let-' ters of administration on the estate of Caleb Howell,deceased, should be granted to said Lucy M. Howell,widow of said William H. Howell, deceased, and Benjamin Williamson, and that they give bond and security, & c.
    The will was as follows :
    “ In the name of God, Amen. I Caleb Howell, of the County of Baldwin, in the State of Alabama, do make and publish this, my last will and testament, in manner following, that is to say :
    “First. I give and bequeath unto my grand children, Eliza Ann Howell, Justina A. Howell, William Forbes Howell, Caleb Monroe Howell, and Mary M. Howell, the following named slaves, to wit: Dick, Lydia, the wife of said Dick, Pompey, Register Frank, Big James, Stephen, Dilcey, Delilah, Frazile, Martha and yellow Peter — share and share alike; which said slaves shall be under the care and management of their father, the said William H. Howell, until the year one thousand eight hundred and thirty-six, at which time an equal division thereof, according to their then values, shall be made among my said grand children.

      “Item — I give and bequeath unto my above-mentioned son, William H. Howell, one negro man, named Jack Fisher.

      “Item — I give and bequeath unto my grand-children, Ann E. Powers, Sarah Powers, Samuel Powers, Joseph Powers, Mary Powers, Paul Powers, William Powers, Sarah Powers, and Frances Powers, the children of my daughter, Charity Stokes, the following named slaves, to wit: Jack, and Rose his wife, Jesse and Plan-nah his wife, Little James, Monday, Jenny, Lydia, Moses, Aaron, Winifred, called Winney, and Grace ; and it is my will and desire, that one-third of the ne-groes hereby bequeathed to my grand-children, the children of my daughter, Charity Stokes, be owned, possessed and enjoyed by my said daughter, Charity Stokes, during her natural life, and at her death they return to her above named children. And which said -slaves, it is my will and desire, be equally-divided among my above named grand-children, and their mother, Charity Stokes, in the proportion above mentioned, on the first day of January, one thousand eight hundred and thirty-six, or as soon thereafter as may be practicable, except that Ann E. Powers shall, have Lydia, on her marriage, and Mary Powers shall have Winney on her marriage. I also give and bequeath to the said Ann E. Powers, and Mary Powers, all my house-hold furniture, to be equally divided between them. And I moreover give and bequeath to my said grand children, the children of my daughter, Charity Stokes,- all my stock of cattle, consisting of about sixty head, to be equally divided among them, share and share alike.
    “ It is my will and desire, that all my lands, lying in the States of Mississippi and Alabama, be sold by my executor, hereinafter named, for the purpose of raising a fund, for the payment of my debts ; and I hereby authorise and empower my said executor, to sell my said lands', at such times, and on such terms, as he shall deem fit, and to make good and sufficient convey anees therefor, inlaw, to the purchaser or purchasers thereof.
    “ I give and bequeath all my other lands, other than those above mentioned, lying in the State of Georgia, or elsewhere, to my grand-children, that is to say : to the children of my son, William H. Howell, and to the children of my daughter, Charity Stokes, to them, their heirs and assigns, forever, as tenants in common, to have and to hold the land aforesaid, to my said grandchildren, their heirs and assigns, forever.
    “ I give and bequeath my pied horse to my daughter-in-law, Lucy Howell, wife of my son, William H. Howell, and it is my will .and desire, that all my other horses be sold by my executor, hereinafter named, whenever he shall deem it expedient.
    “And, lastly, I do hereby nominate and appoint my son, Wm. H. Howell, sole executor of this my last will and testament — and I do order and request him, to keep all the property herein mentioned, together, until the year one thousand eight hundred and thirty - six, and to apply the hires, rents and profits thereof, with the moneys arising from the sale of the lands hereinbefore ordered to be sold, to the payment of my debts. In testimony,” &c.
    At July term of the same court, Benjamin Williamson, administrator, &c. was, at his own request, released and discharged from the administration, and Lucy M. Howell, retained as sole administratrix.
    And at November term of the same court, eighteen hundred and thirty, Joseph Arrington, who had intermarried with the widow, Lucy M. Howéll, adminis-tratrix, &c., in right of his wife, petitioned the court for an order of sale of some of the negro property, to meet the demands against the estate: whereupon he ■had leave to sell a sufficient number of the negroes, to pay the debts of the deceased, and to return an account of his proceedings, according to law, &c.
    And at September term of the same Court, eighteen hundred and thirty-one, on application of Thomas Rhodes, executor of the last will and testament of William H. Howell, deceased, who was the executor of Caleb Howell, deceased, said Thomas Rhodes obtained an order to vacate the letters of administration with the will annexed, which had been granted to Lucy M. Howell, who was then Lucy M. Arrington, ‘because it was within the knowledge of the court, that Caleb Howell, at the time of his death, was a resident citizen of Baldwin county, and that the will was recorded in Baldwin county, and that letters -thereon were granted to William H. Howell, deceas- - ed, in his life time; and because, at the time of the .death of the said Caleb, he had no assets in Wilcox ¿county ; and because Thomas Rhodes, as executor of the last will and testament of William H. Howell, deceased, claimed the right of executing the will of said Caleb Howell, deceased.
    And on the twenty-fourth of December, eighteen hundred and thirty-four, in vacation, William A. Bet-tis, in right of his wife, Justina A. Bettis, formerly Jus-tina A. Howell, obtained an order for notice to Lucy M. Arrington and Joseph Arrington, to make settlement of their administration.
    And at the May term of the same court, eighteen hundred and thirty-five, on settlement of the affairs of said estate, Eliza A. Howell, one of the legatees, obtained a decree against Joseph Arrington, administrator, &c., in right of his wife, Lucy M., for eleven hundred and thirty-four dollars and eighty-six and a half cents: William J. Bettis, in right of his wife, Jus-tina A. Bettis, formerly Justina A. Howell, obtained a decree against the same defendant, for a like sum : William Forbes Howell, obtained a decree against the same defendant, for a like sum; and Caleb M. Howell obtained a decree against the same defendant, for a like sum, for their distributive shares of the proceeds of the estate; Mary M. Howell, one of the legatees, having died before that date. Upon which decree, execution was issued against defendant, and returned ho goods.’ Execution then issued in favor of William F. Howell, one of the legatees, against Joseph Arrington, administrator, &c., and George Williamson and Benjamin Williamson, securities on the administration bond.
    From the decree of the Orphans’ court, there was a writ of error taken to the Circuit court.
    And at the November term of the Circuit court of said county, the plaintiffs assigned for error—
    1. That the original grant of administration, to Lucy M. Howell and Benjamin Williamson, was -void,— the County court of Wilcox county having no jurisdiction.

      2. The grant of administration was void, — the same being to the prejudice of an executor.
    3. The County court erred in'not giving the notice required by law to be given, upon the settlement of estates.
    4. The proceedings are erroneous, in relation to the settlement, required and ordered, — the judgment or decree being in favor of William F. Howell, when it should have been in favor of the subsequent executor or administrator.
    5. The judgment or decree is erroneous, being against Joseph Arrington, alone, when it should have been against Joseph Arrington and Lucy his wife.
    6. The judgment is erroneous in the amount, being ■for too much.
    And at the same term of the same court, the case having been heard and understood by the court, it seemed to the court, there was no error in the decree of tbe Orphans’ court, and that the same ought to be confirmed. It was therefore considered by the court, that the judgment of the Orphans’ court should be, in all things, affirmed, and that the defendant in error do recover, &c.
    From this judgment there was a writ of error to this court, and the same matters assigned for error.
    Porter, for plaintiffs in error,
    insisted, that the grant of letters of administration to Lucy M. Howell and Williamson, was void. The record sufficiently shewed that a will was proved in Baldwin county, which had been the residence of the testator, and in which his domicil was located. By the statute, the letters were required expressly to be granted in the county where the testator had his residence, and in no event could this rule be departed from. — -Aik. Big. 449, sec, 10-249, sec. 17; 5 Eng. Ec. Rep. 73, 94. Even by the ecclesiastical law of England, this rule obtained, and administration was never granted, where there was an executor, or an executor of an executor. — * Wins, on Ex’ors, 291; Aik. Dig. 176, sec. 1; 6 Eng. E. 11. 265, 266 ; 1 Nott & M’Cord, 77. If administration were granted before probate, and refusal of the executoi*, it would be void upon will found. — Tol-ler on Ex’ors. 127. Administration granted where the court had no jurisdiction, was void. — 12 Mod. 617; 1 Esp. 289, 290; Bul. N. P. 141; 3 Salk. 22; 1 Com. Dig. 355-6, 360, 364; 1 Dane, 561, art 4; 5 Wheeler, 239; 2 Mass. 'll. 120; 11 ib. 507; 8 Cranch, 9.
    The executor here was prejudiced materially, and the court was to presume that letters testamentary had issued in Baldwin, and it was impossible that the two representatives could exercise, legally, those powers at one and the same time. The grant to one must have been void. For aught that appeared the Orphans’ Court of Wilcox was controlling the estate, and exercising jurisdiction there, while the executor of W. H. Howell was settling up the estate, in Baldwin. Such an act would not alone be a violation of law : It would be in violation of the rights of the executor, and those claiming under him. — He was selected by the testator, and might be more capable of managing the estate than the widow or next of kin.
    2. The acts of the administration in this case, were void for another reason: If the letters had properly issued, it could only be to carry into effect the will. Now, one of the special charges of this will was, that-the debts should have been paid, from the realty; and until that was exhausted, the court could grant no order for a sale of the slaves. These slaves were specific legacies, and they could not be chargeable with the debts, until all the other property belonging to the estate was exhausted. — Darrington et al. vs Borland, 3 Porter, 9 ; 5 Wheeler, 292.
    3. The notice given by the court, requiring the settlement of the affairs of the estate, and upon which the decree was made, was by no means sufficient.-*No notice of tlie settlement was given to parties inte - rested, as required by law — Aik. Dig. 182, sec. 27,— and such notice was essential. The notice is intended by law, to bring in all the parties in interest, and-to ascertain the truth of the account which the executor or administrator might generally make,'very much on his own conscience. The want of notice was, therefore, sufficient to render any account or settlement utterly void.

    4. The judgment should have been in favor of the executor who was acting ; or in favor of the guardian of the children. The. statute gave the remedy to one entitled after final settlement. A minor could not apply for settlement. — See statute, Aik. Dig. 155, sec. 13.-There was no refunding bond given for any default of the administratrix, and for acts after the revocation, the Orphans’ court of Wilcox had no jurisdiction. If any part of the estate was retained, it belonged either to the estate or to the heir. If the former, an action lay to the executor — if the latter, to the heir, if of full age, or his guardian, if a minor ; and for all defaults before revocation, the action was upon the bond. — 2 Har. Dig. 1135 — 9 Mass. 114. The power of the County courts was limited to decrees upon matters in the regular course of law. For an undoubted devas-tavit, the remedy was on the bond.
    5. The execution was, in this case, against Ar-rington. He became, it was true, by the marriage,administrator in right of his wife ; but her name should also have been used. The decree does not even re-cognise him as administrator. If liable at all,- it was in right of his wife, and any decree the court chose to make against him, could not bind the sureties of his wife. The sureties never became bound for his acts: they were only bound for such acts of Lucy Howell as occurred previous to their resignation, and after the' giving of the new bond. The first hire received by Lucy, the administratrix, was in January, eighteen bund fed and twenty-nine, and the last bond executed by the sureties, was in October, eighteen hundred and twenty-nine. All the acts of the administratrix, after the revocation, were invasions upon the rights of the' executor; and the Orphans’ court could render no decree for defaults after that time; and the decree in this case embraced monies received as late as eighteen hundred and thirty-two. The letters of administra-; tion were revoked in September, eighteen hundred and thirty-one.
    Again, the execution was against the proper goods and chattels of Arrington, and was not in conformity with the decree, and was also in favor of Hill,- and against Arrington, and the sureties of the administra-trix jointly. No execution could 'issue, until process had been returned against the administrator. — -Aik. D. 252, sec. 37, 38, 39, 40. The execution should not have issued, until the' projoer returns were made. — - The negroes were, by the will,- to remain with the executor, until eighteen hundred and thirty-six,- and the court had made a disposition of them, before that time. The decree was also for too large a sum.

      J. B. Clarke,- contra.
   COLLIER, C. J.

In this case, it appears'fhat Caleb Howell, of the county of Baldwin, died in 'the year eighteen hundred and twenty-four, leaving a will, which was proved and recorded, under the directions of the Orphans’ court of that county, in July of the same year.

In August, eighteen hundred and twenty-seven,- letters of administration, with the will annexed, were issued by the county court of Wilcox, to Lucy M. Howell and Benjamin Williamson, who qualified, by giving bond, &c. Afterward, in July, eighteeiphim-dred and twenty-eight, Benjamin Williamson resigned his administration, and Lucy M. continued sole ad-ministratrix, up to the ninth day of March, eighteen hundred and. thirty, when she intermarried with Joseph Arrington, who afterwards became administrator in her right. In December, eighteen hundred and thirty-four, one of the legatees, under the will of Caleb Howell, applied to the Orphans’ Court of Wilcox, to compel Lucy M., and her husband, as administrator in her right, to settle their administration accounts ; whereupon notices were issued and served upon Lucy M. and Joseph, and such further proceedings had, that that court, on the third Monday in May, eighteen hundred and thirty-five, rendered a final decree against Joseph Arrington alone, and in favor of each legatee, under the will of Caleb Howell, for the sums severally supposed to be due them.

From the decree in favor of the defendant in error, Arrington sued out a writ of error, returnable to the Circuit court of Wilcox, for the successful prosecution of which, Benjamin Williamson and Thomas Dunn 'executed a bond: and, the judgment of the County court being affirmed, the Circuit court rendered judgment against Williamson, Dunn and Ar-rington. To revise this judgment they have prosecuted a writ of error to this court, and here re-assign the errors that were assigned in the Circuit court.

The first and second assignments, suppose the grant of administration to Lucy M. Howell, and Benjamin Williamson, to have been void, — first, because the Orphans’ court of Wilcox had no jurisdiction. Second, because the will of Caleb Howell provided for its own execution, in appointing an executor.

Without pretending to consider the abstract questions of law raised by these points, we think it clear, that they are not available for the plaintiffs. Joseph Arrington coming into the administration in right of •his wife, can not urge the invalidity of an authority, which she had sought, and both had exercised. The jurisdiction of the Orphans’ court was then immaterial-By an acceptance and exercise of the trust, it was admitted, and it is not for the plaintiffs to controvert it. To entertain the objection, would.be to allow them to take advantage of .their own wrong, which the law will not tolerate.

In the third and fourth assignments it is further insisted, that the judgment is erroneous, because the notice required upon the settlement of estates, has not been given; and further, because the decree should have been in favor of the subsequent administrator.

It is not for the plaintiffs to object to the irregulariity of notice, which was not intended for the advantage of the personal representative, but for the benefit of creditors, distributees, &c. The administratrix and administrator were cited, filed their accounts, and so far as they are concerned, the proceeding in this respect, is free from objection.

In regard to the decree being in favor of the legatees, this is expressly authorised by statute. Besides, it does not appear, that there was any other representative of the estate of Caleb Howell, after the grant of administration to Lucy M. was revoked.

In the fifth and sixth assignments, the decree is further objected to, because it does not charge Lucy M. as well as her husband, Joseph Arrington, and because it is rendered for too large a sum. '

By the marriage of a feme sole administratrix, the husband becomes joint administrator with her : and if the husband sue or be sued, as administrator, the wife must be joined with him. But, in cases where the administrator may be charged in his own right, the action lies against the husband alone.

The present case is clearly not of the latter description. It is a proceeding against the husband, in his representative character, to which the wife was a necessary party; and if essential to its legality, that she should be joined, no decree can be regular, which does not embrace her. And for this omission, the judgment of the Circuit court is reversed: and as the administratrix is not before this court, so as to enable us to render the proper decree here, the cause is remanded. ' '

There is nothing in the récord, from which we can discover that the decree is rendered for too much.

      Xikin’s Digest, (first edition,) 252, sec. 37.

       7 Mass. Rep. 510..

       2 W’ms on Ex. 632; 1 Hayvv. R. 16; 2 Saund. on Pi, and Ev. 572.

         2 Saunders on Pleading and Evidence, 572.


source: Caselaw Access Project

author: GOLDTHW AITE, J.

license: Public Domain

text:
    HILL vs BRIDGES.
    1. A writ of error will not lie to revise the judgment of the court of commissioners of roads and revenue, in relation to a refusal to lay out a road; although—
    2. Cases may arise, in which an improper action of that court, if an injury was about to result to an individual, might be controlled by the court of Chancery.
    Writ of error to the Circuit court of Wilcox.
    At a term of the Commissioners’ court, began and ’held for the county of Wilcox, at the court-house thereof, on the first Monday in February, eighteen hundred and thirty-six, the petition of sundry citizens of said county was received, praying for the opening of a publie road from the court-house in said county, to the Alabama river, at Hill’s Bluff, on the land of the plaintiff in error; which said petition having been heard, an order was made, appointing a jury to view and mark out said road, and that they should report at the May term next thereafter, to the court. An overseer was also appointed for the road, &c.
    And at the May term of the same year, of said court, the jury appointed to view and mark out a road, leading from Wilcox court-house to the east bank of the Alabama river, at Hill’s Landing, reported that they had viewed and marked out the same, according to the order of the court. To the confirmation of this report, the defendant in error interposed objections. — Whereupon, it seemed to the court, that the order appointing the jury, passed at the February term, had passed inadvertently, and that the court had •transcended its jurisdiction in making the order on which the report was founded.

      And at the Spring term of the Circuit court, of the same year, of said county, plaintiff in error sued out a writ of error, returnable to that court, and also a writ of certiorari, for the removal of the proceedings into that court, and'upon the hearing of the cause the defendant moved to dismiss the writ of error, on the ground, that none would lie in this case — which motion was continued to the next term; and it being suggested to the court, that there was a diminution of the record of the proceedings of the court below, it was, on motion, ordered that a certiorari issue to the clerk to certify a more complete record, &c.
    And at the Fall term of the Circuit court, of the same year, the plaintiff came and said, that in the record and proceedings of said cause, as well as in giving the judgment, there was manifest error, in this, to wit, that by the record in said cause, it would appear that the report of a jury, appointed to lay out a road was set aside, at the May term of said court, although said road had been laid out by the j ury, and an overseer had been appointed; and in this, to wit, that the court set aside the report of said jury, without appointing another jury to lay out the road; and in this, to wit, that said court, at May term, reviewed the grounds on which it had ordered said road to be laid out, and rejected the report, because it deemed the ground for making the order, insufficient, and thus virtually set aside its own determination; and also, in this, to wit, that it appeared. by the record, that the court .refused receiving said report, on grounds having no relation to the report, and permitted the receiving of the report to be opposed, by the defendant in error, who was not a party to the case, and was not particularly prejudiced by the establishment of the road. And therefore the plaintiff prayed, that the judgment of the court of Commissioners, of May last, might be reversed, and that he might be restored to all things which he had lost by occasion of said judgment, &c.

      And the defendant in error then moved the court to dismiss the writ of error from the County court, in the case, on the ground, that no writ of error would lie — which motion being argued, and-understood by the court, it seemed to the court, that the motion ought to be sustained. It was therefore considered by the court, that the writ of error should be dismissed, and that the defendant should recover of the plaintiff his costs, &c. — for which execution might issue.
    To reverse this judgment, there was a writ of error to this court; and plaintiff now moved to reverse the judgment of the Circuit court, and assigned the following grounds of error.
    1. The Circuit court erred in dismissing the writ of error from the Commissioners’ court.
    2. The Circuit court should have reversed the judgment of the Commissioners’ court, on the errors assigned.

      Peck tj* Clark for plaintiff in error.
   GOLDTHW AITE, J.

The material question presented b'y the record, in this case, is, whether a writ of error will lie, to revise the judgment of the court of commissioners bf the roads and revenue, in relation to a refusal to lay out a road.

The discretion reposed in that court, is of so peculiar a nature, in relatien to their jurisdiction over roads, and many other matters, that it is difficult to perceive for what reason it could be supposed, that this or any other court is invested with power to revise its judgments.

In acting on such subjects, many matters must necessarily influence the judgment of the commissioners, which can never be brought to the notice of a revising tribunal — such, for instance, as the local description of the ground over which it is to pass — the number and ability of those who live near the contem.plated.road, to keep it in repair — and the necessity for such a communication to be opened between the several points to be connected. The legislature, in committing this species of local legislation to a tribunal, emanating immediately from the people of the county, can not be supposed to have intended their discretion to be subject to revision.

Cases may arise, in which an improper action by the court of commissioners, might be controlled by a court of chancery, if injury was about to result to an individual ; but such cases are clearly distinguishable from the present.

There was no error in the judgment of the Circuit court, dismissing the writ of error — and it is affirmed.


text:
    M’VOY vs WHEELER et al.
    I. Covenant can only be maintained upon a writing under seal; and if a contract be unattested by a seal, oris underwritten: the action by which redress can be had for a non-performance; is debt, or assumpsit, according to the subject matter: Therefore—
    2; Where a contract under seal, is materially varied, by a subsequent parol agreement, covenant on the contract will not lie, — Hhe remedy must be on the subsequent agreement.

      3. If new terms be introduced into a contrae!, under seal — other duties imposed, or another day provided for its consummation, an action will not lie for a breach of its stipulations.
    Error from the Circuit court of Mobile county.
    Action of covenant. Plaintiffs declared against.defendant, in a plea of covenant broken: for that, whereas, on a day certain, by an indenture made between the plaintiffs of the one part, and the defendant of the other part, (which indenture, sealed with the seals of the said parties, the plaintiffs brought into court,) the said plaintiffs, in consideration of a large sum of money, to be paid as thereinafter mentioned, agreed with defendant, that James Wheeler and Levi C. M’-Cormick, should, within the space of five months, from the first day of April then next, erect and build two' three-story brick buildings, to be located at the corner-of Dauphin and St. Joseph streets, in the city of Mobile, according to a plan drawn by Thomas Ellison, (which the plaintiffs brought into court) — the said buildings to be completed according to a certain description of dimensions, by specifications, and of terials, therein particularly set forth : the said build" ings to be twenty-four feet each, upon Dauphin-street, and in depth ninety-six feet, the galleries, kitchen, and alleys included. The first story to be calculated for stores, and the second for family residences ; but the third story to have no other inside work done, after being enclosed, and floors and, washboards laid. The whole of the work to be of materials as described particularly in said indenture, of good quality, and in suitable condition, and to be executed in a faithful and workman-like manner, and in honorable and full conformity with the said stipulations. In consideration whereof, the defendant covenanted and promised to and with the plaintiffs, well and truly to pay or cause to be paid, to the said Wheeler and M’Cormick, the sum of eight thousand and six hundred dollars, in the manner and at the periods following, to wit: two thousand dollars, on putting up the joists of the second floor; two thousand, as soon as the buildings should be covered; and two thousand and three hundred as soon as the buildings should be completed, according to the stipulations; and two thousand and three hundred dollars, at the time last mentioned, to be paid by good indorsed notes, such as could be discounted, made payable at four months, — fop the true and full performance of which several covenants and agreements, the parties of the first part, bound themselves by the said indenture to the said party of the second part — and the said party of the second part, bound himself, unto the said party of the first part, in the penal sum of twenty thousand dollars.
    And plaintiffs, in fact said, that said Wheeler and ■ M’Cormick did build and finish the said two three-story brick buildings at the place described, according to the drawing and plan by the specifications, of the dimensions, and of the materials set forth in the indenture, (except as would be thereinafter mentioned,) the whole work being of materials of good quali-
      tf, and suitable condition ’ executed in a faithful workman-like manner,, and in full conformity with the said stipulations. But at divers times, previous to the first day of September, eighteen hundred and thirty-five, the said Wheeler and M’Cormick, did, at the special request of the said defendant, make divers alterations in the said plan, to wit, in the hangings of the windows, in paving the kitchens, in the making of extra windows, and of fán-sashes, for doors, and other alterations and deviations from said indenture. And the said defendant did, after the said first day .of September, order the lower story of the said buildings to be finished for the purpose of a public house, closets to be made, the windows of the third stories to be cased, and the apartments thereof to be finished, lathed and plastered, together with other improvements not provided for by the said indenture, — all of which the said Wheeler and M’Cormick performed.
    And the plaintiffs averred, that the said Wheeler and M’Cormick did complete said buildings, (including the additions aforesaid,) in faithful and substantial compliance with the stipulations of said indenture, as soon as they could be completed, after the said first clay of September, to wit, on or before the first day of December, thereafter; and the defendant received them, and was then, and had been, for a long time, in the full possession and enjoyment of them, and of the rents and profits arising therefrom. Yet defendant had not paid said last mentioned sum of twenty-three hundred dollars, last above mentioned.
    Defendant craved oyer of the said supposed covenant, and it was read to him, and he demurred to the declaration generally, &c.
    And afterwards defendant came and craved oyer of the covenant, and it was read to him, and he plead that plaintiffs ought not to have or maintain their action, because, he said—
    First. That he had well and truly performed the covenants to be.by him performed, and had paid the several sums of money claimed, which he was ready to verify.
    Second. That the plaintiffs did not complete the buildings in the covenant set forth, on the said first day of September, eighteen hundred aixd thirty-five, as in the covenant set forth, — which he was also ready to verify..
    Third. That the time of the performance of the said .contract was not enlarged, nor the plan thereof varied, by said defendant, or by his consent, nor any variations or alterations made or assented to by the said defendant, as the plaintiffs had alleged- — and that he was ready to verify.
    Fourth. That, before the commencement of the suit, to wit, on a certain day, defendant paid to plaintiffs, twenty-rthi'ee hundred .dollars, above demanded ; .and of that he put himself upon the country.
    Whereupon plaintiffs came and said, that to the first three pleas .of defendant, they demurred generally, axxd as to the fourth and last plea of defendant, they joined issue, &c.
    And afterwards, to wit, at June term, eighteen hundred and thirty-six, came the parties, and the demurrer of said defendant, to the plaintiffs’ declaration being understood by the court, it was considered by the court, that the demurrer should be overruled. Thereupon defendant pleaded over, and the demurrer of plaintiffs to the first three pleas of defendant being understood, it was considered by the court, that they should be sustained; and a jury of good and lawful men having been elected, &c. to tiy the issue joined on the fourth plea of defendant, on their oaths, said they found for the plaintiffs. — It was therefore, considered by the court, that the plaintiffs should rec'over from the defendant, the sum assessed by the jury, and also their costs, by them in that behalf expended, &c.
    Frpm this judgment there was .a writ of error taken, returnable to this court, and at this present term, plaintiff in error assigned for error, the overruling of the demurrer and the matters contained in the bill of exceptions.
    The bill of exceptions stated, that on the trial of the cause, plaintiffs having admitted the payment of all the moneys which were to have been made in cash, the defendant moved the court to exclude all the testimony going to shew, that the notes specified in the covenant to be delivered, had not been delivered, or payment made in notes, — which motion the court .overruled, and admitted testimony, going to shew that the notes had not been delivered; to all of which the defendant accepted, &c.

      Campbell, for plaintiff in error.

      Thornton, contra.
   COLLIER, C. J.

Several questions were raised in ¡the Circuit court, upon the demurrers to the declaration and pleas, which were so disposed of, as to make it necessary for an issue of fact to be tried by the jury, who found a verdict for the plaintiffs, on which judgment was rendered. At the trial, a bill of exceptions was taken by the defendant below, who prosecutes a writ of error to this court, and assigns the judgment on the demurrers, and the decision of the court excepted to, as causes for reversal.

We shall only consider the sufficiency of the declaration, which presents the question, whether an action of covenant will lie upon an agreement under seal, (to perform certain work,) which has been modified, or -the time of performance enlarged by parol.

Covenant can only be maintained upon a writing-under seal. If a contract be unattested by a seal, or, is unwritten, the action by which redress can be had, for a non-performance, is debt or assumpsit, or either, according to the subject matter. If new tern s are introduced into a contract, other duties imposed, or another day provided for its consummation, it is clear, that the original contract does not remain unimpaired, so that an action would he for a brcac h of its stipulations. — If then, no action could bo maintained upon the original contract, when thus modified, we think it follows, that the present action is misconceived. For though the modifications, are set out in the declaration, yet they are to be shewn by parol, and can not, according to the premises, we have assumed, bo made the básis, either in whole or in part of an action of covenant.

The case of Littler vs Holland was an action of covenant, upon an agreement under seal, to build two houses by a certain day. It appeared on the trial, that the time of performance was enlarged by parol, and that the houses were built within the enlarged time. This evidence, it was held, did not support the allegation in the declaration, and the plaintiff was non-suited.

So, in Brown vs Miller, an action of debt was brought on a bond to submit to arbitration. The condition limited the time for the arbitrator to make his award. The declaration alleged that the time was enlarged by mutual consent, and that the award was made within that time. On demurrer, it was determined, that the remedy on the bond was gone, by the failure to make the award within the time contemplated by its condition. To the same effect, also, is the case of Freeman vs Adams.

In Philips et al. vs Rose, the plaintiff agreed to build an oil-mill within a prescribed time, which was enlarged by parol, and the work conrpleted within the enlarged time. — The court held that evidence of the enlargement would not support the declaration. And in Jewell et al. vs. Schroeppel, the court consider the law as settled, “ that the plaintiffs, inasmuch as they had not performed, within the time stipulated, by the original contract, could not recover upon the covenants contained in it. They could not, in such an action, give evidence 'of an extension of the time.” •

In Langworthy vs Smith, the Supreme court of New York re-affirm the previous decisions of that court, on the point, and consider it as beyond doubt', that a parol agreement to enlarge the time for the performance of covenants, is good; and that by an enlargement, the remedy upon the covenant itself, is lost, and must be sought upon the agreement enlarging the time of the performance.

In the case at bar, the declaration shows, that the contract was so materially varied, and the labor of the defendants so greatly increased, that they could not perform it until several months after the expiration of the day therefor appointed. It will, therefore follow, that the action cannot be maintained, and that the plaintiffs must resort to their remedy .upon the pa-rol agreement; 'making the covenant, so far as material, inducement to the action.

The judgment is reversed.

      3 Term Rep. 590.

      3 “ “ 590.

       9 Johns. Rep. J15.

      8 “ “ m

         4 Cowen, 565.

       2 Wend. 587.


text:
    JONES, et al. vs ETHERIDGE.
    li Where there is no community of interest, parties cannot join in action, and therefore the obligors on two several bonds, who had incurred different liabilities, may not join in a writ of error.
    2. Therefore, alsoj where several defendants beloiv, join in a writ of error, who may make different matters of defence, and for or against whom different judgments might be rendered — such writ will be dismissed.
    Error to the County court of Wilcox county.
    At the June term of the Orphans’ court of Wilcox County, eighteen hundred and thirty-six, upon the ap,-plication of Allen Etheridge, one of the heirs of the estate of Absalom Jones, deceased, a notice was issued to John Jones,.administrator of the estate of said decedent, to appear at the next term of the said court,- and make settlement of his administration of said estate.
    And at the October term of said court, in the same' year, said Allen Etheridge came, and having suggested to the court that a devastavit had been committed by said John Jones, the administrator — it was therefore ordered by the court, that notice should issue to said John Jones, the administrator, to appear at the next term, and shew cause, if any he could, why he. should not be removed from the administration of the said estate; and also make final settlement of his administration of said estate, &c.
    And at the December term of said court, in the same year, the said John Jones not appearing, it was made to appear to the court, by the testimony of John Dan-elly, that the said administrator had been guilty of a devastavit, of the goods and chattels, of said estate. — It was, on motion, ordered, by the court, that the letters of administration, theretofore granted to said John Jones, upon the estate of Absalom Jones, deceased, should be ..revoked, and said John Jones, administrator, as aforesaid, should be displaced and removed from said administration, and that Allen Ethridge, at whose instance he was removed from said administration, should have and recover of said John Jones, his costs, by him, about his said motion in that behalf expended, for which execution might issue, &c. And it was further ordered by the court, that notice issue to said John Jones, to appear and make final settlement of his said administration, at the next term,- &c.
    And upon the application of Allen Ethridge, for letters of administration upon the estate of Absalom Jones, deceased — It was ordered, that letters of administration de bonis non, on tho estate of Absalom Jones, deceased, should be granted to the said Allen Ethridge, on his giving bond and security; which was done, &c.
    And at the January term of the said court, eighteen hundred and thirty-seven, said John'Jones appeared and filed his plea to tho jurisdiction of the court, which was considered and overruled by the court, and the case continued, &c.
    And at the March term of same court, said Johu Jones, produced to the court, the accounts and vouchers of claims taken up by him against the estate of the decedent, amounting to the sum' of fifty-two dollars and eighteen and three-fourths cents, which were examined by the court, and allowed, together with the sum of sixty dollars, allowed by the court, to the said John Jones, for his services, in and about his administration, amounting to the sum of one hundred and twelve dollars and eighteen and three-fourths cents, the entire amount of credits, due the said Johu Jones, ivhich being deducted from the sum oí' six bundled and thirteen dollars, and thirty-three and three-fourths cents, the amount of the sales of personal property, as returned, left the sum of five hundred and one dollars and fifteen cents, due from said John Jones, former administrator, &c. It was, therefore, ordered, adjudged and decreed by the court, that Allen Ethridge, administrator of the estate of Absalom Jones, should recover of John Jones, former administrator, &c., and James Holley and William Miller, his securities, on his last bond, as administrator of said estate, the sum of five hundred and one dollars and fifteen cents, the amount due as above, besides costs, for which execution might issue, &c.
    And the said Allen Ethridge, administrator, as aforesaid, then proceeded to show, that the said John Jones, had received assets, for which he had not accounted and the said John Jones objected to the examination v of John Danelly, Jackson Davis and Alexander M’ln-tosh, witnesses, introduced by said Allen Ethridge, to prove by parol testimony, that certain assets, and a quantity of corn, raised by the intestate, for the use of his family, ,came into the hands of said John Jones, as administrator, &c., which said assets and said corn, were not inserted in the. inventory returned by the said John "Jones, or in the appraisement returned by the appraisers of said estate to the court; which objection was overruled by the court, and the witnesses examined, from whose testimony it appeared, that corn belonging to said decedent’s estate, to the amount of one hundred and twenty-five bushels, came into the hands of said John Jones, which corn was estimated to be worth sixty-two and a> half dollars and fifty cents, at the time said corn came into his possession. It was also proved, by Alexander M’Intosh, that he paid to said John Jones, a fifty dollar note, which he owed to thé intestate, and which note the witness exhibited in court, which note, and interest on the same, amounted to fifty-seven dollars, and being added to the value of the corn, made in all, the sum of one hundred and nineteen dollars and fifty cents, which came into the hands of said administrator, Jones, and for which he had not accounted, in any return or settlement made by him. It was therefore, ordered, adjudged and decreed, by the court, that Allen Ethridge, administrator, &c., recover from John Jones, former administrator, and Jonathan M. Hill and Atlas C Hinson, his sureties, upon his first bond, the sum of one hundred and nineteen dollai's and fifty-.cents, besides his costs, See., for which execution might issue.
    And upon the said decree, one writ of error was taken to this court.
   COLLIER, C. J.

It appears from the record, that John Jones was appointed administrator of the estate of Absalom Jones, deceased, and in the course of his administration, gave two bonds, upon the demand of the Orphans’ court, with different sureties in each, — • that afterwards his letters of administration were revoked by the court, and the defendant appointed administrator in his stead, and upon being called on for a settlement of his accounts, the Orphans’ court rendered two several decrees against him, in favor of the defendant: the one against the plaintiff and his sureties in the first bond, for the extent of his indebtedness up to the time of their discharge — the other for his indebtedness, accruing subsequently, against himself and his sureties, in the second bond. To .reverse both of which, but one writ of error has been sued out, by the plaintiff and his sureties, in both bonds.

A question has been raised by the defendant, whether this court can take jurisdiction of the case, or should not rather dismiss it, for a misjoinder of plaintiffs in error.

There is certainly no community of interest between the sureties in the two bonds, and the liabilities fixed upon them respectively, by the decrees, are different, both in'-their amounts and in the foundation on which they rest. And it is clear, that they could not be jointly charged on them, in an action in the usual form, nor could the parties to these decrees join in prosecuting an action upon demands due them severally. This being the case, it is difficult to conceive of any reason why they shall join in a writ of error.

Again : they could not unite in assigning error,— what would be available for the sureties in the first bond, must be unimportant to those in the second, and so vice versa. So, there might be error in one decree, while the other was free from objection; how should, the judgment be rendered, in such an event, or the costs be taxed Í These are difficulties not easily gotten over, here, where the,unsuccessful party alone, is chargeable with costs.

In Smith vs Hearne, two writs of error were issued, and two judgments sent tip in one transcript, and the writs were dismissed ; the court not being autho-rised to sever the judgments, or able to determine to which judgment the writs respectively applied.— And in DeSylva vs Henry, a writ of error brought up two distinct judgments, between the same parties, and was dismissed.

We are of opinion, that the reasons against retaining this case, for a decision upon the merits, are stronger than in the two we have cited, and therefore, direct a dismissal of the writ of error.

      2 Stewart R. 169.

      4 Stewart & Porter, 409.