Brown v. Nourse

Kent, J. Thei’e can be no question that the plea in abatement was fatally defective, and that the amendment was not and could not be properly allowed. It is therefore out of the case. The principal question is, whether under the general issue, the defendant admits the plaintiff’s capacity as administratrix, or whether that is or can be put in issue by that plea.' This question seems to have been directly determined by this Court in the case of Clark v. Pishon, 31 Maine, 503. It was there held that, —" by pleading the general issue the defendant admitted the plaintiff’s capacity.” This case was decided after the decision in Langdon v. Potter, 11 Mass., 315, in which a different doctrine is indicated, although that case was cited by counsel in Clark v. Pishon. On examination of the authorities, we are satisfied that the decision by our own Court is, to say the least, as well supported in every respect as the contrary doctrine. In Thynne v. Protheroe, in the King’s Bench, 2 M. & Sel., 553, the Court decided that even where the plaintiff had made profort of the letters of administration, and the plea was non-assumpsit, yet, as there was no necessity to produce [233] the letters, and as the plea admitted that he was administrator, the defendant had no right to insist upon their production. "If this could be done it would be the means of getting the benefit of ne ungues administratof upon the general issue.” In Gridley v. Williams, 1 Salk., 38, it was resolved that the plea of non est factum admits the plaintiff to be a good administrator. The same doctrine is in substance found in Com. Dig. Pleader, 2D, 10-2 D., 14. This decision is also supported by its analogy to the numerous cases in which it is decided that, where a corporation sues, the plea of the general issue admits the existence of the corporation and its right to sue. The principle which lies at the bottom is, that where, independently of all merits, a party would deny the capacity of the plaintiff and his right to be heard in Court in the case, the objection must be interposed in limine, so as to prevent unnecessary costs and delay. It is a safe and extremely convenient rule in practice, and not unreasonable in its requirements. It only demands that what is preliminary in its nature shall be interposed and determined before the merits are reached. We do not see any sufficient reason for overruling Clark v. Pishon. It is objected that the plea of the general issue admits only what is set forth in the writ, and that the plaintiff does not therein say that she is administratrix of her intestate loithin this /State. If the objection is, at this stage of the case, open to the defendant, the replj is that she does allege that she is " administratrix of the estate of J. W. L. Brown, late of,” &c. The promises set forth are all' to the intestate. This is the usual mode of declaring in this State. It has never been required that the writ should set out where, or by what authority, the administration was granted.. The administrator never makes profert of his letters of administration. The legal inference is, when a suit is brought in the name of an administrator, and he declares that he is administrator of a certain deceased person, that the declara [234] tion is, that it was granted in this State. For he cannot be an administrator, with a right to sue in our courts, unless he has been here appointed. This is clearly stated in the case relied upon by the defendants, before cited. Langdon v. Potter, 11 Mass., 313. It becomes unnecessary for us to consider the question, how far a subsequent appointment as administrator would enable him to maintain an action before commenced in that capacity. We are, as before shown, bound to regard the point of capacity to sue, as conceded by the pleadings. We do not perceive that the indorsement on the writ, that the note in suit was the property of the plaintiff in her own individual right, can affect the determination of this case. The note was payable to the intestate and to his order. It has never been indorsed, and therefore the action could only be brought by him or his personal representative. It is not unusual for one who has an equitable interest in a chose in action, commenced in the name of the original payee, to indorse on the writ a notice of his claim to the proceeds of the judgment. It makes no difference that the claim of such interest is made by the administratrix, in her individual character or capacity. Her rights are as distinctly separate as if vested in another person. It makes no difference to this defendant, whether this debt, when paid, is to be distributed to the creditors, or to be paid to an heir or the widow. This is a matter to be adjusted between those interested in the estate. The action may be maintained by the administratrix, because the legal right and interest in the note has never been transferred by indorsement. The statute of limitations is invoked by the defendant. But he never resided in this State after the cause of action accrued, and therefore the statute never began to run. R. S., c. 81, § 114; Brigham v. Bigelow, 12 Met., 270; Putnam v. Dike, 13 Gray, 535. As the statute in this case never begun to run, the provisions in § 103, of the above chapter, cannot be applied. 'That section is intended to reach only those cases in which [235] the statute has begun to ran, ancl in which, but for this provision for extension, it would be a bar in six years. But here no such state of facts exists. McMillan v. Wood, 29 Maine, 217. The judgment must be for the plaintiff. Judgment for plaintiff for amount of note and interest and costs. Appleton, C. J., Walton, Barrows, Danforth and Tapley, JJ., concurred.