against the said sheriff or coroner, and his securities, or any or either of them, for the amount of money specified in said execution, together with ten per centum damages on the amount of the execution, and also the costs of suit. (1) on sugges money could $78. Whenever any sheriff or coroner, to whom an execution shall b. Sec. 3. have been delivered, shall fail to make the money on or before the Proceedings first day of the term of the court, to which said execution shall be re- tion that the turnable, and the plaintiff or plaintiffs, his, her, or their attorney, have been shall suggest to the court, that the money could have been made, by inade. said sheriff or coroner, with due diligence, it shall be the duty of the court forthwith to cause an issue to be made up, to try the fact; and if it shall be found by the jury, that the money could have been made by the sheriff or coroner, with due diligence, judgment shall be Judgment, rendered against said sheriff or coroner, and his securities, or any or either of them, for the sum of money specified in said execution, together with ten per centum, on the amount of said execution, as damages, and also the costs of suit. &c. Courts may against de §79. It shall be lawful for the court, to which an execution shall be Ib. Sec. 4. returnable, to issue an attachment against any sheriff or coroner, who issue attachshall have received any execution, and failed to return the same; and ments also, to issue an attachment against any person who shall, as clerk, faulting offior sheriff, or coroner, have collected or received money upon any ex-cers. ecution, and fails to pay over the same, upon its appearing to the court, that the party, thus failing, has had one day's notice of the motion to be made for the said attachment.1 Sec. 1. against con ecution. $80. If any constable shall fail to return any execution issued by a 2. Constables. justice of the peace, and delivered to said constable, to the justice issu- 1824-(21) ing the same, on or before the day on which such execution is made Proceedings returnable, it shall be lawful for the plaintiff in the execution, his stable for not agent or attorney, to move said justice, after having given three days returning exnotice of the time and place of making such motion, to said constable, or his security or securities, for judgment against said constable and his securities, for the amount for which said execution issued, with interest thereon from the day on which the judgment was granted, to the day of making said motion, together with the costs of the motion; whereupon it shall be the duty of said justice, to render judgment against said constable and his security or securities, according to the above provision. Constable liable to mo 10 per cent. 81. Any constable who shall collect all or any part of an execu- Ib. Sec. 2. tion, issued by a justice of the peace, and shall refuse or fail to pay failing to pay said money so collected, to the plaintiff in said execution, his agent or over money, attorney, on demand, shall forfeit and pay to said plaintiff ten per tion, and centum per month on the sum collected as aforesaid, and at that rate forfeiture of for a greater or less sum, or a longer or shorter time; and it shall be per month. lawful for the plaintiff in said execution, on giving to said constable, or his security or securities, three days previous notice of the time and place of making such motion, to move for, and obtain judgment against said constable and his security or securities, before the justice of the peace who issued said execution, for the amount of money col (1) In an action against a sheriff for a false return, there must be a fraudulent intention to charge the defendant. Sutherlands v. Cunningham, 1 Stewt. Rep. 438. If a party is injured by an improper return, the remedy is by a special action on the case, and damages are recoverable according to the loss.-ib. When judgment is rendered against the sheriff for the default of his deputy, he may have judgment against such deputy and his securities, by motion, on one day's notice. See "Sheriffs "-last section. ges, &c., ex be made in circuit or and judg 5 per cent. lected as aforesaid, together with said ten per centum per month as When dama aforesaid, in cases where the addition of ten per centum per month ceed 50 dolls. to the money collected as aforesaid, will not exceed the sum of fifty the motion to dollars:-and in cases where the addition of ten per centum per month, to the money collected as aforesaid, will exceed the sum of fifty dolcounty court, lars, the said motion, against the said constable and his securities, ment to bear shall be made to, and judgment rendered by, either the circuit or county court of the county in which the justice resided, who issued said execution, on giving the constable or his security or securities three days previous notice of the time and place of making such motion; which judgment rendered as aforesaid, shall bear interest at the rate of five per cent. per month, from the rendition of judgment until the same be paid; and the execution issued on said judgment shall, in the body thereof, express that the judgment on which it issued, bears five per centum per month. per month interest. Ib. Scc. 3. Judgment not to be stayed. 1829-(14) Sec. 9. False return how tried, judgment thereon. § 82. Any judgment rendered as authorized by this act, shall not be stayed as judgments of justices of the peace are now authorized by law to be. § 83. Whenever any constable shall make return on any execution, which the plaintiff or plaintiffs, his or their attorney, may wish to by constable, contest as false, he, she, or they may notify such constable and his security or securities, or either of them in writing, that at the next circuit or county court for said county, he, she, or they will suggest to said court, that said return is false; and on the said constable and his security or securities, or either of them having five days' notice of said motion, said court shall, at said term, cause an issue to be made up to try the falsity of said return; and if the return be found false, judgment shall be rendered against said constable and his security or securities, or such of them as may have been notified, for the amount of money specified in said execution, together with ten per centum damages on the amount of said execution, and also all costs. Ib. Sec. 10. § 84. Whenever any constable, to whom an execution shall have Proceedings been delivered, shall fail to make the money on or before the return where plaintiff suggests day thereof, it shall be lawful for the plaintiff or plaintiffs, his or their that consta ble might have made the money. Damages. agent or attorney, to notify said constable and his security or securities, or any or either of them in writing, that at the next circuit or county court for said county, he, she, or they will suggest to said court, that the money could have been made by said constable, with due dili gence; and said court shall, on being satisfied that said notice has been served five days before said court, on said constable, and his security or securities, or either of them, cause an issue to be made up to try the fact; and if it shall be found by the jury that the money could have been made by said constable with due diligence, judgment shall be rendered against said constable and securities (if notice was served on them severally, if not, against such of them as are notified,) for the sum of money specified in the execution, together with ten per centum on the amount of said execution, as damages, and also all costs. [See "Justices of the Peace and Constables," -§ 7.] 1806 (1) Sec. 20. EXECUTORS AND ADMINISTRATORS. § 1. If any person die intestate, or the executors named in any tesTo whom ad- tament renounce the executorship, or refuse or neglect for the space ministration of forty days after the death of the testator, to exhibit such testament granted. for probate, then administration of the goods and chattels, rights may be and credits of such intestate, or of such testator, with the testament nnexed, shall be granted to the widow, or the next of kin of such intestate or testator, or to some of them; and in case of their, and each of their refusal, then to a principal creditor or creditors of such intestate or testator; and if none of them will accept thereof, then to such other proper person or persons as will accept the same. Oath of ex administra tors, with the will an nexed. §2. Before issuing letters testamentary, or letters of administration 1821—(4) with the will annexed, such executor or executrix, administrator or Sec. 12. administratrix, with the will annexed, shall take, and the judge shall ecutors and administer the following oath, viz: "You swear that the writing which has been admitted to be recorded as the last will of contains the true last will of said as far as you know or believe, and that you will well and truly execute said will, according to law, and the directions thereof, as far as the goods and chattels, rights and credits of the said will extend; and that you will return a true inventory of all said goods, chattels, and credits, so far as they may come to your knowledge, a true account of sales, and your said administration, as required by law." And before issuing any other letters of administration, such administrator or administratrix shall take, and the judge shall administer the following oath, viz: "You Oath of other swear that deceased, died without any lawful will, as far as administrayou know or believe, and that you will well and truly administer all and singular the goods, chattels, and credits of the said deceased, and Form. return a true inventory thereof, so far as they may come to your knowledge, and a just account of sales, and of your said administration, as required by law;" but when letters testamentary, or of ad- May be variministration shall be granted on an authenticated copy of a will, and ed. in such other cases, as in the opinion of the judge, may require a change in the form of the oath, the oath may be administered in such form as, in the opinion of the judge, is suitable to the nature of the case. tors. Executor's bond. § 3. In all cases, before granting letters testamentary, or of admin- b. Sec. 13. istration or guardianship, the executor or executrix, administrator or and adminisadministratrix, or guardian, shall enter into bond, with at least two trator's sufficient securities, approved by the judge, payable to him and his successors in office, in such penalty as he may direct, which shall be at least equal to double the estimated value of the estate, with a condition as follows: "The condition of the above obligation is such, that whereas the above bound has been duly appointed admin(or administratrix, or executor or exor guardian of as the case istrator of the estate of ecutrix of the last will of may be,) now if the said shall well and truly perform all the duties which are, or may be by law required of him (her or them) as such administrator, (or administratrix, executor, or executrix, or guardian, as the case may be,) then the above obligation to be void, otherwise to remain in full force." Such bond shall not become void How proon the first recovery, and may be put in suit, and prosecuted from ceeded on. time to time, against all, or any one or more of the obligors, in the name and at the cost of any person or persons injured by a breach thereof, until the whole penalty shall be recovered thereon. Court may 4. The orphans' court shall have full power, when letters of ad- 1806-(1) ministration shall be granted upon insufficient security, to order and Sec. 40. direct such administrators to give further and sufficient security, by require furbond in the usual form. And if it appear upon examination that any of adminis administrator hath embezzled, wasted, or misapplied all, or any part trators. of the decedent's estate, or shall refuse or neglect to give bond, with ther security anew, letters tration. And revoke, security as aforesaid, the said court may forthwith revoke or repeal and grant the letters of administration, and thereupon grant letters of adminisof administration to such other person or persons, having a right thereto, as will Administra- give bond in manner and form aforesaid; who may have actions of tor's remedy trover, detinue, account, and on the case, for such goods or chattels decessor. as came to the possession of the former administrators, and were withheld, wasted, embezzled, detained, or misapplied, by any of them, and no satisfaction made for the same. against pre 1821-(4) Sec. 14. requiring tors, &c. § 5. Any executor, executrix, administrator, administratrix, or Additional guardian, may be ordered to give further security on complaint of any grounds for of his, her or their securities, or of any of their representatives, or when further secu- there shall appear sufficient grounds to believe, that he, she, or they, rity of execu are about to misapply, embezzle, or remove from the state, the property committed to his, her, or their charge, on proof of gross ne glect in the performance of any of the duties, on him, her or them enjoined by law, or that his, her, or their securities, have become insufficient, as well as for the causes heretofore specified; and on proof that such executor or executrix, administrator or administratrix, or guardian, has removed from the state, or otherwise endeavored to elude the service of process on any such complaint, the same may be heard and determined, though the citation be not executed. 1806-(1) Sec. 41. Remedy tors or ad insane, or charge their trust. § 6. If any executor of any last will and testament, or administra tor of an intestate's estate, residing out of this territory, at the time where execu of taking that trust, or afterward removing out of the said territory, ministrators shall refuse or neglect, after due notice from the orphans' court, to are absent, render his account, and make settlement of such estate, with credi unable to dis- tors, legatees, or heirs, or their legal representatives; or if any executor or administrator shall become insane; or if any administrator becomes otherwise incapable of, or evidently unsuitable to discharge the trust reposed in him, the said orphans' court are authorized and em powered in each of the said cases mentioned in this section, to grant letters of administration, with the will annexed, or otherwise, as the case may require, to such person or persons, as may be entitled to the same, and as to the said court shall seem meet. And the administrator thus appointed shall have the same power and authority to administer the estate of the deceased, not administered upon, by such former executor or administrator, and be subject to the same duties, in as full and ample a manner, as if the executor or administrator, 80 removed or residing out of this territory, as aforesaid, were actually dead. 1821--(4) Sec. 16. Change of security. 1810-(3) Sec. 4. dum. § 7. Where new security shall be ordered and taken, of any exec utor, executrix, administrator, administratrix, or guardian, the judge may direct such alteration in the condition of the bond as the case may require, and may order the original securities to be discharged entirely, or from the time of taking such new security, as to him shall seem proper. § 8. So much of the twenty-first section of an act entitled "An act concerning wills and testaments, the settlement of intestates' estates, ad colligen and the duty of executors, administrators, and guardians," as gives to the chief justice the power of appointing an administrator, or administrators, to collect together the goods of the deceased, for the purpose of depositing them in the hands of the chief justice, out of which he shall pay the debts of the deceased, and be liable in law as other administrators, is hereby repealed; and in lieu thereof, the chief justice, Suits by, to whenever he may deem it necessary, shall appoint an administrator or administrators, to collect the goods of the deceased; and in case the administrator or administrators so appointed, shall commence a inure to administrator in chief. suit or suits, the same shall not abate by the appointment of an administrator or administrators in chief, but the suit or suits may progress for the use of the administrator or administrators in chief. Executors, Administra the sheriff or 9. Any executor, executrix, administrator or administratrix, or 1821 (4) guardian, may, by writing, by him or her subscribed and delivered Sec. 15. into the clerk's office, resign his or her authority :-but in such cases &c., may resign. he, she, or they, and his, her, or their securities, shall be bound for all the assets or effects, which shall not have been duly administered or applied, or shall not be delivered to their successors respectively. 10. Where no one shall have been admitted and qualified as ex- Ib. Sec. 17. ecutor, executrix, administrator, or administratrix, within three months tion may be after the death of the deceased, or where the executorship or adminis- committed to tration shall have become vacant, by death, resignation, or removal, coroner. the judge having jurisdiction of the case may commit the administration to the sheriff or coroner of the county and (unless the judge shall otherwise order) no other oath, bond, or security, shall be necessary to be given than the bond and oath of office already taken and given by such sheriff or coroner; but on his bond for the performance of the duties of his office, he and his securities shall be liable for his administration, and such bond may be sued, and judgment from time to time recovered thereon, in the same manner as is or may be provided by law, in case of other bonds of executors, administrators, and guardians. (1) The administration so committed to any sheriff or coroner, May be remay at any time be revoked, on the application of any of the executors, kindred or creditors of the deceased, and the executor permitted to qualify, or another administrator be appointed: during any contest about the validity of a will, the infancy or absence of the executor, or administrator, and in such other cases not otherwise provided for, as may so require, the judge may appoint an administrator or adminis- tion. tratrix, with such limited authority as the case may require, and when the necessity of the case may require, such administrations may be granted or revoked forthwith, without any citation. So [a1822 (11) much of the aforesaid act as makes it the duty of the judges of AdministraSec. 15.] the county courts to commit administration to the sheriff or coro- tion to atner in certain cases therein designated, shall be taken and strictly office of she construed so as to attach the said administration to the offices of sheriff riff, &c., not to the person. or coroner, and not to the person. voked. Limited ad ministra tach to the Sec. 26. 11. Every orphans' court granting letters testamentary or letters 1806—(1) of administration, shall nominate, and by warrant appoint three or Appraisers more judicious and discreet persons, appraisers of the estate of the de- to be appointed. cedent, who shall return their appraisement on oath, in such time as the court shall appoint, of all the personal estate of such decedent to them shown; which appraisement, if subscribed and sworn to by the executor or administrator, may be considered as an inventory of such part of the estate, as had theretofore come to hand: and inventories (which the executor or administrator in all cases, shall return at the time limited by the court) and appraisements, may be given in evidence in any suit by or against the executor or administrator, but shall not be conclusive for or against him, if it be shown that the estate was (1) Actions against sheriffs on their bonds, for failing to administer properly estates committed to them in virtue of their office, must be brought in the name of the judge of the county court, for the use of the party injured, and the declaration must show for whose benefit the trial is brought, or it is demarrable. Sheriffs in such cases are liable on their sheriff bonds, in the same manner as other administrators are on their administration bonds. The Governor v. Gantt et al., 1 Stewt. Rep. 388. 1 The act of June 14, 1821. See 1821-(4) Sec. 17, forming the preceding part of this section. |