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A case may



refuse amendments without control.

occur where it would be error in a court, after hav. W11.50x. ing allowed one party to amend, to refuse to suffer

the other party to amend also before trial. But that is not this case. After the parties have gone to trial upon a set of pleadings, and the judgment has been pronounced, it may be doubted whether the court can permit the demurrer to be withdrawn. It would not be right in all cases, after the party had taken issue upon the law, and it has been decided against him, to suffer him also to take issue upon the fact. If it be permitted, it is a matter of great indulgence.

There is no ground for the objection taken to the declaration in this case, that it ought to have averred that the money was due on an account concerning the trade of merchandise.

A declaration need not set forth the circumstances which take the case out of the statute of limitations.

Youngs cited 6 T. R. 691. Holt v. Scholefield, to show that when general damages are given, if there be one bad count in the declaration, the court will arrest the judgment.

MARSHALL, Ch. J. But by the statute of jeofails in Virginia, under whose laws this case was tried, the judgment shall be rendered for the plaintiff, upon a general verdict, if there be one good count in the declaration.

On a subsequent day

MARSHALL, Ch. J. delivered the opinion of the court,

That the exception in the statute applied to actions of assumpsit, as well as to actions of account. That it extended to all accounts current which concern the trade of merchandise between merchant and merchant. That an account closed by the cessation of dealings between the parties is not an account stated, and that it is not necessary that any of the items should come within the five years.

That the replication was good, and not repugnant to the declaration; and that the rejoinder was bad.


v. W11.sox.

Judgment affirmed with costs.


amount of as. sets


If thie defend.

ERROR to the circuit court for the district of Upon the issu,

of plene od Columbia, sitting at Alexandria, in an action of

ministravit the assumpsit brought by the defendant in error against jury must find

specially the the plaintiff in error, as executor.

in the Upon the issues.of non assumpsit and plene ad-hands of the

executor, oth ministravit, the jury found a general verdict, which erwise

the was recorded in this form: “ We of the jury find court,

render juris the issues for the plaintiff, and assess the damages ment upon the to two hundred and twenty dollars and ninety-five perdiet. cents." Upon which verdict the judgment of the ant below in court was that the plaintiff recover against the termarrics at: defendant her damages aforesaid in form aforesaid ter the judis assessed, and also her costs by her about her suit fore the in this behalf expended, to be levied of the goods and of the writ chattels of the said Bryan Fairfax, deceased, at the service of the time of his death, in the hands of the said defendant citation upon

thie husbanil is to be administered, if so much, &c. but if he hath sufficient not so much, then the costs aforesaid to be levied of the proper goods and chattels of the said defendant; and the said defendant in mercy," &c.

inent, and be.


The error relied upon by the plaintiff in error was, that the jury had not found the amount of assets in his hands to be adininistered.

Swann, for the plaintiff in error, having cited Esp. N. P. 263. and the case of Booth's Executors v. Armstrong, 2 Wash. 301., was stopped by the court, who requested to hear Mr. E. 7. Lee on the other side.

E. y. Lee, contra.



There was no necessity for the jury to find specially the amount of the assets, for if ever so small a sum had been found, the judgment would have been the same as if assets had been found to the whole amount of the plaintiff's claim. The sum found by the jury would not alter the judgment. It would still have been for the whole debt de bonis testatoris si, &c. and si non, then the costs de bonis propriis.

But here the jury hare in substance found that the defendant had assets more than sufficient to satis. fy the debt due to the plaintif; for that is the allegation of the plaintiff in her replication, and the jury have found the issue for the plaintiff upon that replication.

It is nut more necessary to find specially upon this issue than upon non assumpsit or nil debet.

There is a difference between this case and that of Booth's Executors V. Armstrong, 2 Wash. 301., for there the finding was not, as here, generally, “ we find the issues for the plaintif;but “ we find for the plaintiff the debt in the declaration mentioned, and one penny damages.The finding there was special, and could not be construed to be a finding of the matter of the plaintiff's replication as the finding in the

present case may and ought to be.

The cases cited to show that the amount of assets found could not alter the judgment were, 8 Co. 34. Mary Shipley's case. Cro. Eliz. 592. Waterhouse y. Woodstreet. Styles, 38. Gawdy v. Inghun. Freem. 351. Oxer dan v. Hobdy. Bro. Execution, pl. 34. pl. 82. Godbolt, 178. Newman v. Babington. Cr.. Car. 373. Dorchester v. Webb. Lex Test. 414.

February 21.

MARSHALL, Ch. J. delivered the opinion of the court to the following effect:

The verdict ought to have found the amount of the Fairrax's

Ex'a assets in the hands of the defendant to be administered.


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The cases cited to show that the judgment must be for the whole sum, if the verdict find any assets, have been overruled. This is declared by Lord Mansfield, in a case cited in Gwillim's edition of Bac. Abr. and the law is now well understood to be, that the executor is only liable for the amount of assets found by the jury. In Virginia the law has been so settled. The case cited from 2 Wash. Rep. is precisely in point. The counsel for the defendant in error attempted to show a distinction arising from the difference of form in which the verdicts were rendered. But the two verdicts appear to the court to be precisely alike in substance.

The defendant in error relies on the form of the issue. She contends that as the replication alleges that the defendant has assets more than sufficient to satisfy the debt, he finding of that issue for the plaintiff below in effect finding that the defendant has assets more than sufficient to satisfy the debt; and if so, it is wholly immaterial what the real amount of assets is. But if this were the issue, and the demand were 500 dollars, if the jury should find that the defendant had assets to the amount of 499 dollars, the judgment must be for the defend


But the law is not so. An executor is liable for the amount of assets in his hands, and not more.

The issue really is, whether the defendant has any, and what amount of assets in his hands.

Judgment reversed.*

Vide, S T. R. 688, 689. Harrison v. Beecles. E. J. Lee had previously moved this court to quash the writ of error, because the citation was not served on Ann Fairfax, the defendant




Under the act ERROR to the circuit court for the district of of Pennsylvania of 1715, Pennsylvania, in an action of ejectment. which requires & alcool to be acknowledged

The only question was, whether the exemplificabefore, a jus- tion of a deed from Allen to Delancy, could be lawrice of thepeace cf the county

fully read in evidence at the trial. where the lands lie, it had buen the long

This question arose upon the following case : established praciice before William Allen, on the 27th of December, 1771, the year 1775 toreknowledge being scised in fee of the land in controversy, lying deeds before in Northampton county, by deed of bargain and sale justice of the of that date, conveyed the same to James Delancy of the province and Margaret his wife, in fee. The deed also con. of

a. And althoveyed real estate in the counties of Philadelphia the act of 1715 and Bucks, and was acknowledged by the bargainor locs not in the city of Philadelphia, on the 7th of December, practicc, vet :is 1772, before John Lawrence, one of the justices of it has prevailed the supreme court of the province of Pennsylvania, it is to be considered os

and recorded on the 11th of May, 1773, in the office correct exposi- of the recorder of deeds for the city and county of tion of the sta

Philadelphia; but not recorded in the county of Under the Northampton, nor in the county of Bucks, nor in it' a dced con: any other county in Pennsylvania; offices for rereyed lands in cording deeds being established in the said counties several coun. of Northampton and Bucks, according to law, from recorded in one the date of the said deed to the present time. of those coun tics, an exemplification of it The circuit court admitted the exemplification to was good evi- be read' in evidence; and the verdict and judgment lands in the were for the plaintiff below. valier countics.


in error; but on her husband Charles I. Callett, with whom she had in. terwarried since the judgment below.


But tlie court overruled the motion, saying,

That the act of congress, vol. 1. p. 62. § 22. does not designate the person upon whom the citation shall be served, but only directs that ihe advci se party shall have at least thirty days' notice. Thc citation served on the husband is well. The service is sufficicni.

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