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Ch. R. 22-3; Kirby et al. v. Turner et al. 1 Hopk. R. 309; Peter v. Beverley, 10 Peters's R. 562; and Tucker, P. 8 Leigh, 75; Walker v. Symonds, 3 Swanst. 1.

The propriety of charging executors and administrators with interest, must depend on the circumstances of each case. If they have made use of money, or have been negligent in not paying it over, or in not investing or loaning it, they are chargeable. If they do not wish to take upon themselves the risk of loaning it, 'tis their duty to bring it into court and obtain the directions of the chancellor. Granberry's ex'r v. Granberry, 1 Wash. 246, 249, 250. See Fox v. Wilcocks, 1 Binn. 194; Dunscomb v. Dunscomb, 1 Johns. Ch. R. 508; and Turner v. Turner, 1 Jacob & Walker, 39; Clarkson v. Depeyster, 1 Hopk. Ch. R. 424. Though there may be circumstances which ought to exempt an executor from being charged with interest on balances in his hands, yet in general, an executor is chargeable with interest on such balances; and where, in an ex parte settlement by commissioners of an executor's accounts, the commissioners improperly omit to state an interest account, and charge the executor with interest, that is cause for surcharging and falsifying the account. Burwell's ex'r v. Anderson, adm'r, 3 Leigh, 348. Testator devises that his lands shall be sold and the proceeds invested in bank stock, or in such other property as his executors shall think most advantageous to his children; the executors sell the lands but do not invest the proceeds in bank stock, and afterwards account for the proceeds in money: Held, they ought to be charged with interest on the balances in their hands annually, and their disbursements for the maintenance of the children, and on all other accounts, ought to be defrayed out of the interest accruing on the balances. Garrett's ex'r v. Carr et ux. et al. 3 Leigh, 407.

The principle established in the foregoing case, applied where the will directed the estate to be put out at interest. The executor not having chosen to do so, he is to be considered as a borrower, and annually charged with interest; and such interest and not the principal, is to be applied to the disbursements. Handly v. Snodgrass, 9 Leigh, 484.

The propriety of charging an executor with interest on balances in his executorial account, depends on the particular circumstances of each case. He ought not to be charged with interest on small annual balances, when it appears, that he was in no default in not paying them over to legatees, and never applied the money to his own use. Wood's ex'r (And. Stevenson) v. Garnett, 6 Leigh, 271.

Six months from the receipt of the money is, in general, a reasonable period, from which to charge interest. M'Call v. Pea

chy's adm'r, 3 Munf. 303-306; 1 Johns. Ch. R. 511.

When interest is charged against an executor or administrator, on balances due at the end of each year, such interest, ought not to be carried to the account of the succeeding years, so as to convert it into principal, and, make it carry interest; or be deducted from the payments made in such succeeding years. See Granberry's ex'r v. Granberry, 1 Wash. 249; Sheppard's ex'r v. Stark et ux. 3 Munf. 41; Burnley's adm'r v. Duke et al. 1 Randolph, 113. [See tit. INTEREST.]

And Burwell's ex'r v. Anderson's adm'r, 3 Leigh, 348, in which the rule of Granberry v. Granberry, 1 Wash. 249, as to the mode of stating and charging interest in executor's accounts is examined, explained and settled.

On the plea of fully administered, [of the nature of this plea, see Fowler v. Sharp et al. 15 Johns. R. 323,] an administration account, settled by commissioners appointed by the court, in which the executor or administrator qualified, and which was certified "to have been returned to court, and being duly examined, to have been allowed, and ordered to be recorded," is admissible, as prima facie evidence of the several items therein, without the aid of the inventory and appraisement. Atwell's adm'r v. Milton, 4 H. & M. 253; Nimmo's ex'r v. The Com. 57, and Triplett's ex'rs v. Jameson, 2 Munf. 242.

A verdict on this plea ought to ascertain the amount of assets in the hands of the defendant at the commencement of the suit, and at the time of the plea pleaded. A verdict which merely finds, that assets sufficient to pay the plaintiff's demand, "have come" to defendant's hands, without saying when, is erroneous. Gardner's adm'r v. Vidal, 6 Rand. 106.

Debt on bond against an administrator; issues joined on pleas of payment and fully administered; verdict for plaintiff on first issue, and on the last, "that assets, more than sufficient to pay the debt, &c. came to defendant's hands, to be administered:" Held, verdict on last issue insufficient to found judgment de bonis testatoris. Sturdivant's adm'r v. Reine's ex'r, 1 Leigh, 481. "All the cases decide, substantially, 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 superior claims, sufficient to discharge the debt due the plaintiff; or if not sufficient, that the amount of such assets must be found." Pr. J. Carr, del'g court's op. p. 482.

Defendant, as executrix, pleaded "no assets," (without any averment of plene administravit;) plaintiff replied, assets in hand: Held, that on this issue, defendant might shew assets exhausted by payment; and the jury having found such to be the

fact, the court refused to grant a new trial, or to enter judgment non obstante veredicto. Reeves et al. v. Ward, ex'x, 2 Bing. N. C. 235. The judges strongly intimated that the plea was good on special demurrer.

On an issue joined on this plea, (Fairfax, ex'r v. Fairfax, 5 Cranch,) or on the plea of no assets, (Eppes's adm'r v. Smith, adm'r, 4 Munf. 467,) if the jury find for the plaintiff, their verdict should be thus: "We the jury find that defendant had goods, &c. which were of the deceased at the time of his death, in his hands to be administered, more than sufficient to satisfy said plaintiff's demand, whereof he could have satisfied said plaintiff's demand." Roger's adm'x v. Chandler's adm'x, 3 Munf. 65. Or, the jury should find the actual amount of assets in defendant's hands at the time of action brought, and plea pleaded, as they must do, if defendant has not enough fully to discharge the demand. Booth's ex'r v. Armstrong, 2 Wash. 301.

An executor or administrator is not liable to a judgment beyond the assets to be administered. If he fail to sustain his plea of fully administered, the verdict ought to find the amount of assets unadministered, and the defendant is liable for that sum only; and, in such case, the judgment is de bonis testatoris, and not de bonis propriis. Siglar & al. adm'r v. Haywood, 8 Wheat. 675.

On the plea of plene administravit, and no assets to be administered, the onus lies with the plaintiff, who is bound to shew assets. Bentley v. Bentley, 7 Cowen, 701, in which the cases are reviewed by Sutherland, J. in delivering court's opinion, and Vultee v. Rayner, 2 Hall's Rep. 376.

On a bill to surcharge and falsify such an account, 'tis not a matter of course, to refer it to a commissioner; some evidence must be first exhibited, tending to impeach it, or something improper therein, admitted by the answer; otherwise the bill will be dismissed. Wyllie et ux. v. Venable's ex'r, 4 Munf. 369. And if the examination of such an account should be gone into, if the couch ers in support thereof be not ostensible, they should be presumed to have existed, and the onus probandi thrown on the adverse party; if they are produced, the plaintiff may nevertheless controvert the articles intended to be justified by them. M'Call v. Peachy's adm'r, 3 Munf. 288, 295.

Executors' accounts are audited before commissioners of the county court; the legatees being present, these accounts are returned to the court, approved and recorded: Held, the presence of the legatees at the settlement is no objection to a bill in chancery to surcharge and falsify the accounts so settled. Though plaintiff is held to specification of items of surcharge and falsification, yet it is always competent to him to shew, that the account is erroneous on its face, and (without controverting the items themselves) to shew that they have been so

arranged as to produce results injurious to him. Garrett's ex'rs v. Carr et ux. et al. 3 Leigh, 407.

In a summary motion against administrators for money paid by plaintiff for defendant's intestate, it is no sufficient ground for a continuance, that defendants had qualified only some seven or eight months before, and so had not had time to settle their accounts of administration, and that they desired to defend themselves on the ground of want of assets to pay the debt, without offering any plea or affidavit that the assets were insufficient. Clements v. Powell's adm'rs, 9 Leigh, 1.

If, in a declaration in assumpsit against an executor, there be one count against him in his representative, and others against him in his individual character, this is a misjoinder of action fatal on general demurKayser, ex'r, &c. v. Disher, 9 Leigh,

rer.

357.

An action at law by a legatee against an executor for a legacy, on the executor's promise to pay it, must be brought against the executor in his individual, not in his representative, character; and the judgment in such case must be de bonis propriis. Ibid.

In assumpsit by a legatee against an executor for a legacy, one count in the declaration alleges a promise made by the defendant, as executor, to pay the legacy: Held, this is a count against the executor in his representative character, upon which the judgment can only be de bonis testatoris. S. C.

What acknowledgment by decedent will not take open account out of 16 § of Stat. of Lim. See Aylett's ex'r v. Robinson, 9 Leigh, 45.

The administrator of a revolutionary officer of the Virginia line on continental establishment, who died in Virginia, applies to congress for commutation of five years full pay, due the decedent for military services; congress passes an act allowing the claim, and directing payment out of the treasury to the administrator, but providing, that he shall pay one fourth of the money to the widow of the decedent, who, by the law of Virginia, was entitled to no share of it; to which provision the administrator gave his consent pending the bill before congress; and the administrator receives the money from the treasury under the act: Held, he is bound to pay the widow one fourth of the money. Walden, ex'r, &c., v. Winston, adm'r, &c. 9 Leigh, 160.

A creditor of a decedent, who has obtained judgment against the administrators, brings an action of debt upon the administration bond, and shews at the trial that one of the administrators, under an agreement with a surviving partner of the decedent, had sold partnership effects to the amount of $408 76. There is no evidence that the amount of debts due from the partnership was ever ascertained, or that any settlement of the partnership transactions had ever

been made. But it is proved that the administrator exhibited to a witness a statement of partnership debts which he had paid, amounting to about $ 200, unaccounted for by him, one half of which balance exceeds the amount of the judgment. Upon this evidence the jury find a verdict for the plaintiffs: Held, the verdict ought not to be set aside. Wayt et al. v. Peck et al. 9 Leigh, 434.

The delay of legatees for eight years to institute a suit to surcharge and falsify the settled accounts of an executor, is not sufficient ground for refusing relief, especially

as one of the complainants was a female, and under age when the settlement was in progress, though probably of full age when it was returned to the court of probat and recorded. Handly v. Snodgrass, 9 Leigh, 484.

Where the decree for a sum due by an executor to legatees is in favour of all the legatees jointly for the whole sum, instead of being in favour of each legatee, severally for his proper part, the error is not one by which the executor is aggrieved, and he has no right to have the decree reversed therefor. S. C.

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Act of March 2, 1819-January 1, 1820. R. C. ch. 85.

1. § 1. It shall and may be lawful for the clerk of the council, the clerk of the house of delegates, the register, the clerks of the general court, court of appeals, [circuit superior courts of law and chancery,] county and corporation courts, sheriffs, coroners, constables, surveyors and notaries public, respectively, to demand, receive and take the several fees hereinafter mentioned and allowed, for any business by them respectively done by virtue of their several offices, and no other fees whatsoever; that is to say:

1. To the clerk of the council, for every testimonial, $1 67.

2. To the clerk of the house of delegates, for a copy of an act of assembly, if contained in one sheet, $ 1, and for every sheet after the first 0 75.

3. To the register of the land office, to be paid by him into the public treasury, for issuing a warrant of survey, and keeping a register thereof, where it does not exceed one hundred acres, $0 75; for every fifty acres exceeding that quantity, 0 25; for every warrant issued in exchange for another warrant; or where the lands claimed under a former warrant shall be recovered under a caveat, and keeping a register thereof, 100; for receiving a plat

Act of March 2, 1819—January 1, 1820. R. C. ch. 85.

and certificate, and giving a receipt for the same, 0 25; for issuing and recording a grant thereon, if the quantity therein contained exceed not one hundred acres, 1 78; for every fifty acres exceeding that quantity, if there are not more than ten courses, 0 10; for every course above ten, 0 06; for recording a plat and certificate of survey, if the quantity does not exceed one hundred acres, and there be no assignment thereon, and which has not more than ten courses, 0 50; for every course above ten, 0 03; for every assignment thereon, or accompanying the same, 0 10; for entering a caveat, or for a copy thereof, 0 75; for a search for any thing, and reading the same, if within the time of ten years, (to be mentioned by the applicant,) 0 121; for every ten years more than the first, 0 121; for every title paper recited in any inclusive survey, 0 10; for a copy of a grant or patent of land, where the same doth not exceed four hundred words, 0 63; for every thirty words thereafter, 0 03; for a copy of a plat and certificate of survey, where the same doth not exceed ten courses, 0 63; and for every course thereafter, 0 02; and for every other copy or certificate, where the fee is not already fixed by law, and which doth not exceed two hundred words, 0 25; and for every thirty words thereafter, 0 03; for keeping regular accounts of warrants examined and cancelled, (to be paid by the treasurer on the auditor's warrant,) for each warrant, 0 06. 1804, c. 62, ed. 1808; 1808, c. 10, ed. 1812.

4. To the surveyor. For all surveying actually done, for the first one hundred poles, or any less distance, long measure, per pole, $0 01; all after the first one hundred poles, long measure, per pole, 0003; for calculating the quantity of less than six courses or lines, 0 50; when land is divided, for calculating each division of less than six courses, 0 50; for every course or line more than six, 0 03; for making a plat of six courses or less, 0 50; for every course more than six, 0 03; for recording a plat and certificate, if not more than six courses, 0 50; for every course above six, 0 03; for a copy of a plat and certificate, where there are not more than six courses, 0 50; for every course above six, 0 03; for making an entry, 0 50; for a copy of an entry, 0 17; for every search, where no copy is required, 0 121; for giving a receipt for a warrant or any other paper, 0 17; for travelling to the place of survey, and returning, per mile, 0 05. But if surveying is done at different places, on the same tour, the mileage is to be proportioned among the different surveys, according to their distance from the residence of the surveyor, or deputy, and each other, so that the surveyor shall not receive more than five cents per mile for going and returning for any one trip: Provided always, That when any person shall employ a surveyor, and shall have received a plat of land surveyed, and afterwards shall assign the plat of land to any other, either before or after obtaining a patent for the same, if such person for whom the land was first surveyed, shall not have paid for the said survey, it shall and may be lawful for the sheriff or other officer for the county or corporation, where such assignee shall reside, at the instance of such surveyor, to make distress upon the slaves, goods and chattels of such assignee, in like manner as is hereinafter provided for surveyors or other officers' fees, refused or delayed to be paid. 1745; 1792, c. 115, R. C.

5. To the clerk of the court of appeals. The same fees with those of the clerks of the superior courts of chancery, and general court, for similar services. 1792, c. 115, R. C.(a)

(a) By act of April 8, 1831, Ses. Acts, 1830-31, c. 4, Sup. R. C. c. 92, § 3, 4, p. 122, the clerks of the courts of appeals at Richmond and Lewisburg are required "to

perform the like duties respectively, and be entitled to the same fees and to the same remedies and means of collecting and enforcing payment thereof, and be subject to

Act of March 15, 1832, Ses. Acts 1831-2, ch. 68.

6. The clerks of the circuit superior courts of law and chancery may demand, receive and take the several fees hereinafter mentioned and allowed, for any business by them respectively done by virtue of their several offices, and no other fees whatsoever; that is to say: For every writ of error, writ of prohibition, supersedeas, habeas corpus, mandamus, certiorari, or other writ not used in a county court, $0 50: for making out the bond upon issuing any of the said writs, administering necessary oaths, and writing proper affidavits, 0 50; for filing and endorsing the petition for any of the said writs; or, when any such writ is returned, for filing the same, with the return thereon, 0 15 for filing the record upon an appeal, or upon any of the said writs; or, if errors be formally assigned, for filing such errors, 0 15; when the clerk of the court of appeals shall issue any order allowing an appeal, or shall issue any writ of error or supersedeas, for making out the bond in such case, administering necessary oaths, writing proper affidavits, endorsing upon the order or writ a certificate of the due execution of the bond, and making out and transmitting to the clerk of the court of appeals, an attested copy of such bond, 0 75; for issuing a writ of ne exeat; or for issuing a subpana in chancery, with an injunction endorsed thereon, or for issuing a subpæna with an endorsement to attach the effects of an absent debtor, 0 50; for issuing any other subpæna in chancery, 0 25; for noting in the process book any process except subpænas for witnesses, order or decrees, and taking receipt for the same, 0 18; for docketing every chancery suit on the rough docket and rule book, (to be charged but once,) 0 18; for endorsing and filing every bill, answer or other written pleading; or for entering any plea, replication or other pleading, which is not written, O 15; for endorsing and filing in any chancery suit all the depositions and affidavits of witnesses which shall be filed at one time, every report of a commissioner in chancery, or the exceptions of either party to such report, 008; for all papers filed in any chancery suit on behalf of the plaintiff or plaintiffs, for which no particular fee is allowed, a fee may be charged, (not for each paper, but for the whole,) of 0 26: So, also, if the defendant or defendants cause papers to be filed in any chancery suit for which no particular fee is allowed, the defendants may be charged for the whole of such papers, 026; for issuing an attachment in chancery, or any chancery process not otherwise provided for, and for which no higher fee is allowed in the county court, 0 25; for entering the return in the rule book of all chancery process, returnable to the same day as to all the defendants named therein, 0 35; for all the rules entered on behalf of the same parties, plaintiffs or defendants, in any chancery cause, during one rule week, 0 50; where no proceedings are had in a chancery cause, during any rule week, except to continue it at the rules, there shall be charged at the rate of twenty-five cents for every quarter of a year the case shall be so continued, and no more; where any case, either at law or in equity, is on the court docket, and during the term no order of continuance is entered in it, there may be charged at every such term, for docketing it, calling it and continuing it on the court docket, 0 25; for all judgments and all orders and proceedings in court not otherwise provided for, which are entered in any cause for parties, plaintiffs or defendants, on the same day, the clerk may at his election, charge three cents for every thirty words which shall actually have been entered on the order book, or upon the rule book, if final judgments be entered therein; or he the same penalties and recoveries for neglect or malfeasance in office, to which the clerk of the court of appeals by the laws now in force is, or would be bound, entitled or subject.

"That the judges of the said courts shall

make such allowance to the said clerks as may be deemed reasonable, provided the same shall not exceed one thousand dollars for each clerk for any year, in lieu of any other compensation from the state."

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