Butler v. Hempstead's Administrators
New York Supreme Court
[667] Executors and administrators. In May term, 1835, the plaintiffs obtained a judgment by default, against the defendants as administrators, for $1203.66, to be levied of the goods of the intestate; upon which an execution issued, which was returned nulla bona, except as to $32.37. A suit was then commenced upon the judgment against the defendants in their ‘ individual characters, alleging a devastavit.
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[667] Executors and administrators. In May term, 1835, the plaintiffs obtained a judgment by default, against the defendants as administrators, for $1203.66, to be levied of the goods of the intestate; upon which an execution issued, which was returned nulla bona, except as to $32.37. A suit was then commenced upon the judgment against the defendants in their ‘ individual characters, alleging a devastavit. The defendants did not appear, and judgment was obtained against them by default, in July, 1836, for the amount of the debt and $30 damages. The defendants now ask to be let in to defend on…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
The important question presented is, whether, since the Revised Statutes, the first judgment against the defendants by default, is an admission of assets sufficient to satisfy it; if not, then there may be a valid defence to the second action, to wit, a denial of the devastavit alleged, and the defendants should have an opportunity to come in and defend. Before these statutes it was well settled, the judgment was conclusive evidence; and the defendant of course was estopped from denying the sufficiency of assets in debt upon the judgment suggesting a waste. The…
2Cases cited2 opinions
- People ex rel. Bailey v. Judges of the Albany Mayor's CourtNew York Supreme Court · 1833
- Winne v. Van SchaickNew York Supreme Court · 1832
3Cited by11 opinions
- Gardner v. GardnerCourt for the Trial of Impeachments and Correction of Errors · 1839
- Porter v. RummeryMassachusetts Supreme Judicial Court · 1813
- State v. JamesSupreme Court of South Carolina · 1891
- Mellen v. EdwardsWashington Supreme Court · 1934
- State v. PritchardNevada Supreme Court · 1881
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