Ann Fairfax v. Fairfax's Executor, 1 Cranch 292

The Court (Cranch, C. J., and Fitzhugh, J.) were of opinion that the finding wrns sufficient to support the judgment, and said: If a particular sum of assets less than the debt claimed by the plaintiff had been found it would not have altered the judgment. It would still have been to recover the whole debt, de bonis tes-iatoris. But the jury have in substance found that the defendant had assets sufficient to pay the debt, out of which the debt might have been made. They have found the issue for the plaintiff.

The issue taken by the plaintiff, in her replication, is, that the defendant had at the time, &c., in his hands, goods and chattels of the testator to be administered more than sufficient to pay, &e., and out of which he might have paid, &c., and this she prays may be inquired of by the country; and the defendant likewise. There is no more necessity of the special finding on this issue than, on the issue of non assumpsit. Mary Shipley's case, 8 Rep. 134 ; Waterhouse v. Woodstreet, Cro. Eliz. 592; Gaudy v. Ingham, Styles, 88. See Oxenden v. Hobdy, Freem. 351; Br.

Executor, pl. 34, pl. 82; Newman & Babbington's case, Godbolt, 178 ; Dorchester v. Webb, Cro. Car. 373; Lex. test. 414. Reversed in Supreme Court. 5 Cranch, 19.