that decree an appeal was taken, and this court dismissed the bill as to every purpose, except for the purpose of having proper refunding bonds taken from the legatees or their representatives, to indemnify the estate of John Archer, the executor, against any sums which had been or might be recovered against the estate of John Archer of Chesterfield since the death of the executor. The court in its opinion said that the most certain way of obtaining justice in this case is to consider all matters between the executor and legatees, so far as relates to actual receipts and disbursements by the executor up to the time of his death, as finally closed," &c. In the account of these receipts and disbursements, we have seen that while the whole purchase money of the land was credited to the estate, the amount of the first instalment only was charged as having been paid to Judith Archer. The balance of her claim was reported as an outstanding claim against the estate, and no other outstanding claim was reported. The effect of the decision of this court was to confirm the settlement of the executorial account (except that the balance reported to be due by the estate to the executor was extinguished), and of course to leave the balance due to Judith Archer an outstanding debt of the estate. The main, if not the only, object of requiring a refunding bond doubtless was to provide indemnity against that debt, for which a suit was then pending, and, ten years thereafter, a decree was rendered against William S. Archer, administrator of John Archer of Amelia. There is nothing in that decree which can prejudice the right of William S. Archer to recover on the refunding bonds of the legatees of John Archer of Chesterfield. The court declined giving a decree over against them, expressly on the ground that the remedy was at law on the refunding bonds.

The counsel for the appellant also contended that the opinion of the Circuit court set forth in the second VOL. VIII.-35

1852. April Term.

Archer

V.

Archer's adm'r.

bill of exceptions taken on the trial of the case was erroneous. After the plaintiff had offered in evidence the bond on which the suit was instituted, and the record in the case of Archer's adm'r v. Archer's adm'r &als., and the defendant had offered in evidence the record in the suit of Archer's adm'r v. Robertson & als., (which bond and records are inserted in the bill of exceptions,) the plaintiff offered in evidence an execution and the return thereon, issued in the former suit; to which execution going in evidence to the jury the defendant objected, but the court overruled the objection and permitted the execution to go as evidence to the jury; to which opinion of the court the defendant excepted. The execution is not inserted in the bill of exceptions. It is true, as a general rule, that when an exception is taken to the admission of evidence, its admissibility must appear upon the record, or the judgment will be reversed. And it is also true. that where the evidence is documentary, the insertion of the document in the bill of exceptions is generally the best mode of shewing its admissibility. But the insertion of the document in the bill of exceptions is not necessary, if its admissibility otherwise appears upon the record. The case of Hairston v. Cole, 1 Rand. 461, was relied on in the argument. But that case materially differs from this. The opinion of the court in that case is very short, and is in these words: "The statement in the bill of exceptions that a manuscript purporting to be a copy of an act of the general assembly of Virginia, entitled an act, &c., is too imperfect to enable the court to pronounce any opinion thereon, it not being stated that the said copy was authenticated and how authenticated, nor is the said transcript set out in the bill of exceptions. The judgment is therefore reversed and the cause remanded for a new trial." There it did not appear on the record that the manuscript purporting to be

If it had so ap

1852. April Term.

Archer

V.

Archer's adm'r.

a copy, &c., was duly authenticated.
peared, it is obvious, from the language of the court,
that the said manuscript would have been considered
admissible evidence. Its relevancy to the matter in
controversy seems not to have been questioned; and
was probably apparent on the record. Whether it was
a duly authenticated copy or not appears to have been
the only question on which its admissibility depended.
But here the original execution and return thereon, and
not a copy, much less a manuscript purporting to be a
copy, were offered in evidence, and the only question
on which their admissibility depended was as to their
relevancy. Were they relevant? I think they were.
The suit was brought by a personal representative, on
a refunding bond, for a just proportion, being one fifth,
of a debt of John Archer of Chesterfield that had been
recovered against the plaintiff. The record of the suit
in which the recovery had been obtained was offered in
evidence by the plaintiff, without objection from the
defendant. The execution on the decree rendered in
that suit, and the return thereon, were then offered in
evidence by the plaintiff, and were objected to; but no
ground of objection is stated. The record of the suit
being admissible, indeed necessary, evidence in the case,
it seems to follow, as a matter of course, that the exe-
cution and return, which are matters of record, and in
some sense at least a part of the record of the suit, are
also admissible, if not necessary evidence in the case,
to shew whether the amount of the decree was paid or
not, and what was the amount, if paid. The objection
in this case must be regarded as a general objection to
the admissibility of an execution and return in such a
case, without reference to any particular ground of ob-
jection; and so regarded, it was properly overruled. If
there had been any such ground of objection in this
case, it behooved the exceptant to set it forth; and not
having done so, it is fair to presume that none existed.

1852. April Term.

Archer
V.

Archer's
adm'r.

The counsel for the appellant also contended that the Circuit court should have rendered judgment for the defendant, non obstante veredicto; or, at least, to have awarded a repleader; on the ground that the breaches assigned in the replication were insufficient, and the issue on which the verdict was found was immaterial. It was contended that the condition of the bond, properly construed, was referrible only to any recovery which might be had against William S. Archer as the representative of John Archer of Chesterfield; and that the recovery in this case, as set out in the replication and shewn by the record therein vouched, being a recovery against him as administrator of John Archer of Amelia, though on account of assets received by the latter as executor of John Archer of Chesterfield, the condition was not broken. I think the condition of the bond refers to such a recovery as is shewn by the replication and record; and that the bond was intended, and properly so, to indemnify the estate of John Archer of Amelia against any recovery which might be had against it in respect of the assets of his testator by him received and distributed among the legatees. The testator had been long since dead, and his estate fully administered by his executor. There was no occasion for an administrator de bonis non, for there were no remaining assets to be administered. If there were any outstanding creditors, their recourse would properly be against the estate of the executor, who as to them had committed a devastavit; and whose representative, in the event of a recovery against him by any such creditors, should have recourse over against the legatees, for whose benefit the devastarit was committed. The bond was intended to provide for that recourse against the legatees. William S. Archer, the representative of the executor, in effect, if not in form, represented that portion of the estate of the testator for which the estate of the executor was responsible to the creditors of the testator; and the de

cree of Judith Archer, before mentioned, was a recovery against William S. Archer as representing the estate of John Archer of Chesterfield within the meaning of the bond. I think the breaches, or at least the second and third of them, were well assigned, and that the issue was material.

I am for affirming the decree.

The other judges concurred in the opinion of Judge Moncure.

JUDGMENT AFFIRMED.

1852. April Term

Archer
V.

Archer's
adm'r.

Richmond.

CLARK V. BROWN.

(Absent Cubell, P. and Baldwin, J.)

April 26th.

1. Where an appeal or supersedeas is applied for since the Code of 1849 went into operation, the application must be governed by the act in the Code, ch. 182, § 2, p. 683.

2. In an action on the case for an injury done to plaintiff's land by the mill dam of the defendant, though the freehold or franchise was drawn in question, yet if the damages found by the jury are under $200, the Court of appeals has no jurisdiction of the case.

This was an action of trespass on the case in the Circuit court of Patrick county, brought by Abram Brown against Jacob Clark, for a nuisance in erecting a mill dam on his own land, whereby the water is thrown back and overflows the adjoining land of Brown. Issue was joined on the pleas of not guilty and the statute

1852. April Term.