1811.

Baker

V.

and prayed a decree for a reasonable compensation out OCTOBEE,
of the assets unadministered, or, in case of a deficiency
of such assets, a contribution from the legatees and de-
visees to make it good, and for general relief.

Baker aud

others. Joseph Stover, and Elizabeth, his wife, (late Elizabeth Baker) filed an answer, in which she denied any knowledge of such promise by her father, or that he induced the plaintiff to remain with him; alleging also, that she had often heard him say, that he paid the plaintiff, from time to time, the full value of his services. Her husband stated his belief that her answer was true; and could not admit the justice of the claim.

The other defendants, together with Stover and wife, filed a demurrer to the bill; and, for causes of demurrer, insisted, that no particular sum was averred to have been agreed upon ; and that the devises and bequests to the plaintiff, in the decedent's will, fully satisfied the claim, if any he had.

The causę was heard July 25th, 1810, upon the bill and demurrer; when the chancellor sustained the demurrer, and directed the bill to be dismissed with costs. The next day, during the same term, the plaintiff moved for leave to amend his bill, which was refused. An appeal was taken to this Court.

а

Williams, for the appellant, contended that the bill made a sufficient case for a Court of equity to afford relief, and therefore the demurrer should have been overruled, and the defendants decreed to answer.

2. That if the demurrer was a sufficient bar, the Court should have suffered the plaintiff to amend his bill.

Wickham, contra. The chancellor was clearly right in dismissing this bill on the face of it. It is a mere case of quantum meruit for services rendered by a son to his father. It is true that he could not sue at law, because he was executor: but he might have retained assets to pay himself. No want of assets is alleged in

1811.

Baker

v.

others.

OCTODER, the bill. He does not say that the subject within his

control was insufficient.

The bill is defective, also, in not claiıning any partie
Baker and cular sum. Certainty, to a reasonable extent; is always

required : but in this case there is none; for the plain-
tiff does not pretend to put any estimate on his services.

Upon the merits, there never was a more unfounded
claim. It is evident the plaintiff's object was to con-
ciliate, by his services, the good will of his father,
and that he expected to be compensated by his will.
He took his chance, and did not put it on the footing of
a contract. He has now no right to change his ground,
and appeal to a court of justice. He has made his elec-
tion, by acquiescing in the will, and not offering to give
up the estate devised to him.

Williams, in reply. Where an executor has a claim

a against the estate of his testator, depending on a quan tum meruit only, his proper remedy is in equity. If he made a certain charge, the other legatees might sue bine in equity for a settlement of his account. He may, there. fore, apply to equity for the same purpose; making the tra all parties.

His omitting to state any certain sum in his bill is unimportant. The whole subject should have been refered to a master.

Taking this bill as admitted to be true by the demurrer,
it is as fair a case as ever was. The presumption of the

.
testator's intention, to give the legacy as satisfaction for
the services, might be rebutted by evidence.

At any rate, leave to amend the bill should have been
granted, to enable the plaintiff to state what compensa-
tion other people received for similar services. But, in
my opinion, it needed no amendment, as the whole sub-
ject might have been inquired into by a master.

Friday, April 3d, the president pronounced the Court's opinion, that the decree was erroneous in sustaining the demurrer, and dismissing the bill. It was, therefore, re.

1811.

versed, the demurrer overruled, and leave granted the OCTOBER,
appellant o amend his bill; for which purpose, and fur-
ther proceedings, the court remanded the cause.

Saunders

V. Gaines.

Saunders against Gaines

Monday, March suth,

1814. STEPHEN SAUNDERS was appearance bail for If the den

fendant in an a certain William Murray, at the suit of Philip Gaines, action of coin an action of covenant in the District Court holden at

venant die, af

ter judgment Washington Court-house." At Rules in the Clerk's office, by defuult a:

gainst him and in September, 1807, a judgment by default was entered the bail for his

appearance, against the defendant and bail, and a writ of inquiry and before a awarded, and at October term, 1808, (the writ of inquiry quiry execut

, . not having been executed, and no defence having been ed the plain

tiff cannot made by the bail ;* but the defendant having departed have a scire

facias against this life since the judgment by default) the suit was the bail, but

only against entered, “abated as to the defendant,'t and on the mo. the executors

or administration of the plaintiff, a writ of scire facias was awarded

tors of the de. against the bail, which being returned executed, he after. fendant.*

* Note. The • Note. See Revised Code, 1st vol. p. 78,7ch. 66. sect. 26.; and p. 87. ch. bail in such 67. sect. 20.

case appears

to be dis. † Note. The suit ought not to have been entered “ abated" in this case, charged alto.

gether, as no See Revised Code, 1st vol. p. 110. ch. 76. sect. 20.

ceeding against him is given by law; the writ of inquiry, being against the defendant and the bail, cannot be executed as to the bail alone, and judgment entered against him thereupon, separately from the defendant; (see Wallace and others v. Baker, 2 Munf 334. ;) neither can be be included in the judgment against the executors or udministrators ; because the judgment against them is de bonis testatoris or intestati, and that against the bail de bonis pro. priis, which two different modes of recovery would be incongruous, and cannot be joined in one judgment. But where the bail bas defended the suit and pleaded, if the defendant die at any time pending the suit, I apprehend the bail is not discharged; because the Act of Assembly declares she shall be subject to the same judgment and recovery as the defendant might, or would be subject to, if he had appeared, and given special bail.” And if the defendant die between the verdict on the writ of inquiry, and the judgment thereupon, it seems that judgment is to be entered against him and the bail, in like manner as if he were living bee Revised Code, ist vol. p. 110. the latter part of the 20th section. Vhere the bail, having defended the suit, and pleaded while the defendant was living, waives his plea after the defendant's death. I presume the writ of inquiry is to be awarded, and judge ment entered against the buil alone; because, in that case, it cannot be entered against thie defendunt as in Wallace and others.V. Baker, Vol. III.

Ff

mode of pro

ction

1811.

OCTOBER, wards pleaded, and a verdict and judgment were obtain

ed against him.

To this judgment a writ of supersedeus was granted by a judge of this Court.

Hume

v. Beale.

Wickham, for the plaintiff in error, observed that, by the defendant's death after the writ of inquiry awarded, and before it was executed, the appearance bail was discharged.

No counsel appeared on the other side.

Thursday, April 2d, the president pronounced the Court's opinion, " that the plaintiff in error could not be legally proceeded against by scire facias." The judg. ment was therefore reversed, "the verdict and all the proceedings subsequent to the awarding of the scire facias, including the order, set aside, and the cause remanded for further proceedings against the representatives of Will am Mu ray, (for whom the plaintiff was appearance bail,) according to the Act of Assembly,"*

Monday.

Hume against Beale. March 30th, 1812

UPON a writ of inquiry in an action of assumpsit, Where, u for reasons the plaintiff's damages were assessed by a jury to 327 appearing to the Court," dollars and 50 cents, with legal interest thereon from (though specified.) A the 1st of November, 1806. till paid, beside his costs ; verdict is set aside, without and judgment was entered thereupon. But, at the same requiring pay

“on motion of the defendant, attorney, and the appellate for reasons appearing to the Court, the verdict and judge granted those reasons were sufficient; no bill of exceptions being filed.

not

а

by his

1811.

ment was set aside; and the defendant pleaded non as- October,
gumpsit, to w ich the plaintiff replied generally.” No
exception was taken to the Court's opinion. A general

Campbell
Verdict was afterwards found for the defendant, and
judgment accordingly, from which the plaintiff apo others
pealed.

Price and

the

Wickham, for the appellant, made a point that the
Court below erred in granting a new trial without di-
Tecting the payment of costs, no reason being specified.

But, on Wednesday, the 1st of April, the president pronounced the following opinion of this Court.

" It appearing, in this case of record, that there were sufficient reasons to justify setting aside the verdict, without the payment of costs by the appellee, this Court is of opinion that there is no error in the judgment, and that it be affirmed."

spreso

emh!

Campbell against Price and others.

Wednesday,
Aprillst,

1812.

The Court of Chancery

error, appa.

on the face of the

in

a decree

AFTER the affirmance, by the Court of Appeals, on the 15th of November, 1799, of the late Chancellor cannot core Wyrue's decree in this case, bearing date the 14th of tion, or by bill March, 1797, for which see Price v. Campbell, 2 Ca'l, of review, any 116.) it was discovered that a mistake had been com- rent mitted in that decree; the sum decreed being currency proceedings, when it should have been sterling money ; as incontesti- which has

been afirmed bly appeared from the docunients spread on the record. by the Court The Chancellor “ being of opinion that such an error,

of Appeals. discoverable at the first glance, might be corrected without a formal procedure by bill of review," made an order, on motion, to that effect on the 6th of March, 1800. Upon an appeal, this order was reversed by this Court,