Smith v. Richard Caswell Heirs 1792


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 Dec’d 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



 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


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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