Richardson v. Administrator of Fleming, 5 N.C. 455, 2 Car. L. Rep. 455 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 455, 2 Car. L. Rep. 455

Richardson v. The Administrator of Fleming.

This was an action on a promissory note brought in New-Hanover Superior Court, where a verdict was entered up for the plaintiffs subject to the opinion of this Court, on the following case agreed. The defendant pleaded, “fully administered, former, judgment, and no assets ultra," at August Sessions, 1811, of New-Hanover County Court, being the sessions at which the writ was returnable. The judgments pleaded are, one entered on the appearance docket of the same sessions, and confessed in favor of G. Hooper, the other entered on the reference docket of the same sessions, and confessed in favour of A. M. Hooper, according to specialty filed. To the latter judgment a special replication is filed, that it was confessed per fraudem, and on an instrument of writing which was void for want of registration. This specialty was a bond in the penalty of £6000, conditioned to be void upon Fleming executing a marriage settlement, within six months after his marriage with Mary Schaw, whereby her estate shall be secured to her and the issue of such marriage.

The question arising from the case is, whether the judgment confessed to A. M. Hooper protected the assets to that amount?

Nash, for the plaintiff,

cited Bac. Abr. 77, 2 Saunders 50. Toller 338. 1 Term 690. Touchstone 479. Act of 1785, c. 12.

Browne, for the defendant,

cited Yelverton 196.

Taylor, C. J.

delivered the opinion of the Court:

We do not pretend to touch the question as to the validity of this marriage settlement or contract against creditors, because it is not presented by the case or pleadings.

The only inquiry is, whether Fleming himself would have been bound by it without registration, if suit had been brought against him; and it is very clear that he would upon the express words of the act of 1785, c. 12, which makes such contracts void only against creditors.

Now the liability of the intestate devolved upon his administrator; and unless we could perceive some way in which he could have pleaded so as to have prevented a recovery, we must pronounce that he had a right to confess judgment, and that the assets are protected to the amount of it. The Clerk of New-Hanover Superior Court must therefore enter up judgment, according to the agreement of the parties, that the defendant has fully administered.