SOME CLAIMS AGAINST THE ESTATE OF GOV.RICHARD CASWELL 1.SOURCE: Hillsborough District Court Records DSCR 204.508.2 Original at North Carolina Archives Transcribed (as best I could read it) and Submitted by Clair Hadley STATE of NORTH CAROLINA To the Sheriff of Lenoir County Greetings:Whereas we by our writ of Fieri Facias did command you that of the goods and chattels, lands and tenements of Richard Caswell Decd in the hands of Winston Caswell Ecr (?) & Dolham Caswell Ex you should cause to be made the sum of one thousand ninety four pounds 15 which lately in our Superior Court of law, held for the district of Hillsborough at the courthouse in Hillsborough The Governor for our use recovered against them the said Winston & Dolham Ex & Ex as aforesaid as(and?) also the endorsed fees or costs and charges filed in said suit expended, whereof the said Winston and Dolham are liable and convicted, as to us appears of record, and that you should have the said monies before the Judges of our Superior Court of law, held for the district of Hillsboro on the sixth day of October 1796 and you on that day, having returned to us on our said writ of Fieri Facias, that you had levied on all the Lands of Richard Caswell Decd lying in Lenoir County, to wit, the Red House & plantation and the adjoining lands, Newington do d do. Tanyard plantation & the adjoining Lands, the Yadkin Survey together with four houses & several Lenoir Lotts in the Town of Kinston with three houses on them, the same being subject to sundry Execution in favor of Nathan Smith vs. the said Estate but not sold for want of time. We therefore command you to expose to sale the said property levied on as aforesaid, and have you monies aforesaid, before the Judges of our Superior Court aforesaid, to be held at the courthouse in Hillsborough on the 6th day of October next, then and there to render, &c (?). Herein fail not and have you then and there this writ. Witness, Leonard Henderson, Clerk of Said Court, the 6th day of April A.D. 1797 and in the XX 1 year of American Independence. *the 31st day of M ay 1797 Leo Henderson (his signature) Then follows this page (as best I can decipher it) It seems to be the outside or first page of a letter or document The Governor Judgement (pound sign) 1094..13 ?????? Bond 14 The Ex of Richard Caswell determination 18 Execution to Oct 96 5 ??? 10 ________ 2..12 To October Term 1797 Sheriff Lenoir 5 Do Orange 1 E. Jones Sol.Gen: 5 _________ (pounds) 7.. 18 8 The within lands was advertised for sale 7 sold Sale countermanded by a letter from John Haywood Public Treasurer& this execution order so to be returned (signed) (looks likeWm or Allen) Goodman Sheriff Lenoir Source: NC Reports Written: 1792 SMITH vs RICHARD CASWELL'S HEIRS, DEVISEES & LEGATEES North Carolina Reports, Vol. 2, pp 465, 466 No card could be found which indicates the case did not survive as a Supreme Court Case. More than likely the case was as a result of Claims against the estate of Gov. Richard Caswell SOURCE: Hillsborough District Court Records DSCR 204.508.2 Original at North Carolina Archives submitted by Clair Hadley A creditor obtained judgment against an executor and granted a stay of execution; the executor, before the stay expired, removed the personal property, so that it could not be found to satisfy this execution. Equity will support a bill against the heirs and devisees to charge the real estate, which the executor was by the will, directed to see for the payment of debts. Upon the bill, answers and evidence, the case appeared to be that the testator by his will, charged his real estate with the payment of his debts, and authorized a sale by his executors, in case it should be necessary. Smith objained (sic) a judgment at law in this court, in September Term, 1792, for about seven hundred pounds, with stay of execution for six months. At that time the executor had assets to the amount of eight thousand, or nine thousand dollars. Before the six months were expired, other judgments were obtained. The largest of these, to the amount of five hundred and forty-one pounds, the executors purchased. Under these executions, part of the property was sold; and in 1796, a sale was made by the sheriff to satisfy the execution of five hundred and forty-one pounds. Before the expiration of the six months, the property was removed into another county, and a sale was attempted afterwards to satisfy the plaintiff's execution; but the executor and one of the heirs, now a defendant, drove away the bidders, and a sale was postponed. After this time the property could not be found by the sheriff. The plaintiff's counsel insisted that the bill was a proper one, in aid of the execution; for the lands could not be come at at law (sic), since although they were made assets by the will in the hands of the executor, they could not be sold by a common law execution; neither could they be sold by a sci.fa. to be issued upon this judgment; the executor had not pleaded fully administered. For the defendant it was argued, that the executor was liable to be proceeded against as for a devastavit, and should be resorted to before recourse could be had to the lands. Indeed the heirs cannot be proceeded against at all in equity, because the deficiency of assets was occasioned by the delay of execution, which the creditor consented to. It is the loss which took place in consequence of this delay that has forced the plaintiff to attempt a recovery against the heirs. Part of this property was not sold till 1796. The plaintiff's execution bore test before several others under which it was sold. Secondly, the plaintiff can yet have remedy at law, by an action of debt on the bond against the heirs, if they were liable to the debts under the circumstances of this case. Thirdly: the plaintiff can have remedy at law, by proceeding against the executors or the representatives of the executor, who it is said, is now dead. Johnston, Judge, decided, that notwithstanding these objections, the bill in equity will lie and decreed for the complainant. He said, it is sufficient for the plaintiff that his execution was returned nothing to be found. He need make no further proof. Possibly he might sue the heir upon the bond. He might, perhaps, by proceeding against the representatives of the wasting executor, recover; but he would meet with great difficulties in that way, if not be finally defeated. And why take that course, when there is one more near and plain than the one he has taken. There can be no doubt but that this court has jurisdiction over the cause. The will directs the executors to sell the lands for the payment of debts. It is a trust in them, and this court is properly called on to enforce the execution thereof.
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