Dubois v. Dubois

Curia, per Savage, Ch. J.

The objections to the proceedings before the surrogate, eame too late. They should have been taken before the surrogate. His decree sets out the proper citation and proceedings at length; ami *496 shews a case in which he had jurisdiction. By the statute, (1 R. L. 448, s. 11,) he is “to hear and determine all causes touching any legacy, or bequest in any last will and testament, payable, or coming out of the personal estate of the testator ; and to decree and compel payment thereof; saving to every one the righi of appeal.”

The principal question raised is, whether debt will lie. On this point, we are without any direct authority. The general rule is, that this form of action is proper for any debt of record, or by specialty, or any sum certain. It has been decided, that debt lies upon a decree for the payment of money, made by a court of chancery of another state; (Post v. Neafie, 3 Caines, 22;) and no doubt the action will lie upon such a decree in our domestic courts of equity. The decree of the surrogate, unappealed from, is conclusive ; and determines forever the rights of the parties. It may be enforced by imprisonment; and is certainly evidence of a debt due. Whether a surrogate’s court is a court of record, need not be decided. It has often been said that a court of chancery is not a court of record. It is sufficient that a decree in either court, un-appealed from, is final. Debt will lie.

It was also objected, that the declaration does not describe the defendant as executor; but the proceedings before the surrogate were against him in that capacity. It is true the suit was for a legacy. But the surrogate, wTe must intend, had the proper evidence to justify a decree, whereby the defendant was to be made personally liable for a demand, which, previously, existed against him in his representative capacity only. By the decree, it became a personal matter. The judgment in this suit cannot be of the goods of the testator. Execution must go against the defendant personally, as for his private debt. I infer, therefore, that the character of the claim is changed by the decree : so that in prosecuting upon it, there can he no necessity to describe the defendant as an executor.

Other questions, however, arise out of the case made out and offered to be made out, on the part of the defendant.

1. Ought not the set off to have been allowed ? 2. Had *497 not the officer a right to levy on the money ? And 3. was not the payment of the money a discharge of the defendant ?

Without discussing these questions at much length, it seems to me, that the payment of the money into court was no compliance with the decree ; which was, that the defendant should pay it to the plaintiff. If the payment into court was not a discharge, it seems to follow7, that the levy by the constable was void. We have decided that a levy upon money collected by, and in the hands of an officer on execution, was not a levy upon the goods and chattels of the person for whom it was collected ; because the identical pieces of money collected, are not necessarily to be paid over to him. The money is not strictly his, till actually paid over. Until that be done, his right is a chose in action. If, therefore, the surrogate ⅛¾ received the money for the plaintiff, it would not vest specifically in him, till paid over to him or his authorized agent.

But if I am right in supposing that the defendant became personally liable by virtue of the decree, then it follows that the set off was a good defence ; and should have been received.

A new trial must, therefore, be awarded, as it is suggested that the plaintiff can rebut the set off; the costs to abide the event.

New trial granted.