Lea v. Hopkins

Coulter, J. This cause was laid before the court at its last consultation, 9th June inst., and decided in favour of the defendant in error. The case presents imposing claims on behalf of the defendant in error, so far as the merits are disclosed on the record; and the plaintiff in error seeks to overturn the judgment mainly upon error in the pleadings. That the debt claimed belonged to the estate of Abraham Barker, is clear from the bond itself, for it is distinctly so declared in the premises of the instrument. The engagement, however, is to pay to those legally entitled to the division of the said estate. It is probable that the parties contemplated, or [496] had in their eye, the widow and children; but of that we know nothing except what appears from the face of the instrument. But, as the debt or duty belonged to the estate, the administratrix, who represented the personal estate, was the proper person to bring suit. There may have been debts unpaid, known to the administratrix, or there may have been debts undiscovered at that time; in which case it would have been the duty of the administratrix to recover the fund, and take refunding bonds before she paid it to those entitled to the division; so that the fund would be available if debts were afterwards discovered. The bond was in the possession of the administratrix, and we must presume was delivered to her, and retained by her, with these purposes in view, and we may fairly infer that such was the understanding of the obligor. When the administratrix instituted the suit, it was not necessary that the eestuis que trust should be named on the record. She brought the suit as administratrix, representing the personal estate of the deceased, and would hold the fund for those legally entitled when recovered, either creditors or distributees. An administrator de bonis non, with the will annexed, may bring suit against a deceased executor, to recover a balance of the estate in his hands, although such deceased executor incurred the primary liability to the legatees: 9 Watts, 495. An executor may bring suit in his own name for the goods of the testator wrongfully taken: 4 Hill, 57; and suing in trover, may also declare in his representative character, where the property belongs to the estate : 17 Verm. 165. In this case the administratrix, having the bond in her possession, which, as we are bound to believe, was delivered to her by the obligor, in which it was declared that the debt belonged to the estate, would have been liable to creditors, if any such there were, and was fully answerable for the whole, or any surplus, as the case might eventuate, to the distributees. In the long period during which the suit was pending, and two trials at Nisi Prius, we hear of no objection to the suit or to the recovery, by the administratrix, o.n the part of those who would be embraced by the designation of those entitled to the division of the estate. She stands in the suit and in her representative capacity as their trustee. In relation to the alleged discrepancy in the first count, which avers that the debt was due to the persons legally entitled to distribution of the estate of the decedent, and the superadded counts which lay the money as payable to the administratrix in her representative character, I do not perceive much weight in it. In all the counts, the administratrix is the actor in the conduct of the suit and the complain [497] ant; and, whether" she recovered in all or any one of them, she would hold the proceeds for those legally entitled, whether creditors or distributees, as the case might be. In Peries v. Aycinena, 3 Watts & Serg. 64, it was held that a count for services rendered by testator in his lifetime, as attorney for the defendant, might be joined with a count for services rendered by the executor in completing the business. The last three counts are substantially indebitatus assumpsit; and, after plea and issue, and two verdicts, if there was any thing defectively set out, it will be presumed to have been supplied by the testimony. That the record of this suit would be a full bar and entirely conclusive against all persons claiming on the. bond, we think, upon careful reflection, must be admitted by lawyer, clerk, and layman. There is a verdict and judgment on the very point of its validity. Upon the issue joined of non est factum, there is a verdict and judgment in favour of the defendant, which effectually entombs the bond as to him, and as to all persons claiming as participants in the division of the estate -of Abraham Barker. The administratrix was entitled to sue for the debt or duty, and she has recovered it on other counts. We cannot shut our eyes to substantial things before them. The superadded counts were introduced to cure the legal disability of the bond, which was created and occasioned by the defendant’s act in the first instance, and made manifest by his careful preservation of old almanacs. The superadded counts were introduced for the purpose of going back on the original cause of action, leaving the bond thus admitted to be invalid as a bond out of the case, if the jury should find that it was executed on Sunday. In the case of Wilson v. Jamison, decided at Pittsburgh at the last term, (ante, 126,) it was determined that an amendment of the narr. will be presumed in a court of error to have been made with the assent of the defendant, unless objection appears to have been made either by the record of the cause or by bill of exceptions. It is painful to us when gentlemen of such high character do not agree on any matter about the progression of a cause; but we can look only to the record, except by admission and agreement of the parties. No objection appears to have been taken on the record, or by bill of exception. It is contended, however, that the superadded counts are incompatible with the first count; but we perceive no such incompatibility. It has been often ruled that debt on specialty and counts on a simple contract may be joined: Van Deusen v. Blum, 18 Pick. 229; Eib v. Pindall, 5 Leigh, 109. The plea and the judgment may be the same, and, ' [498] in point of fact, several of tbe pleas in this case answered all the counts, and wore good as to each — payment with leave, accord and satisfaction, and former recovery. It is not necessary that every possible plea should answer to each count. The main criterion as to the joinder of counts, is whether the judgment is such as can be entered on all; and that is the case in the present action on all the counts, indebitatus in debt and debt on the bond, if the verdict had been in the plaintiff’s favour on all. As to the errors alleged to exist in the charge of the court, I am by no means satisfied that they ought to bo considered by this court. The testimony is not returned, although it appears that a bill of exceptions was signed by the learned and distinguished judge who tried the cause, in which it is to be presumed the testimony was set out; and the evidence in the cause may have had a bearing on several of the errors assigned. The Chief Justice, in his charge, says that the evidence in the cause would support the action if the bond was out of the way; and he speaks of the evidence of Catharine Sander-son as proving acknowledgments by defendant of his liability, and also of a statement in writing by defendant, in which he acknowledged his liability. In the absence of all testimony furnished by bill of exceptions, or in any other way which can be recognised by this court, it is impossible to say that the experienced judge, who tried the cause, committed any error in referring to this statement, or relating in any manner to the evidence. In relation to the error assigned, as to the statute of limitation, this court is of opinion that it ought not and cannot be permitted to disturb the judgment. The court do not utter a word in relation to the statute or its effect in the cause; and they were not re-quested to instruct the jury on that subject by the defendant. It has been so often determined by this court, that the mere omission to charge the jury upon a point that may legitimately exist in the pleadings and evidence, unless requested to do so, is not error, that I deem it altogether unnecessary to refer to cases on the subject. I may add, that I never saw, in the Court of Nisi Prius, any book or trial list furnished to the court, on which the pleas were entered ; nor were the papers filed in the cause ever furnished to the court, when I was sitting there, unless specially called for. So that it follows not, from the plea being on the record, that the judge knew any thing of it. But, if he had known that it was there, unless insisted on at the trial, and his attention called to it by a request to instruct 'the jury on the subject, we cannot say there was error, because we do not know what the testimony was in [499] relation to those admissions spoken of by the court — when they were made, or their exact import. They may have been such as to obliterate effectually the plea of the statute ; and because pleas are often put on the record which are abandoned and not urged at the trial, we are not satisfied that' there was any error in the instruction, in relation to the bond being good as an admission of a previous liability, although it was void as a bond if the jury found that it was executed and delivered on Sunday. It was void as a contract, because as a contract it. would have been transacting worldly business on Sunday. But a man may acknowledge the truth on Sunday; and, if he does, I do not know any rule that-would prevent its being given in evidence against him. If a man writes a letter on Sunday and sends it to his creditor, who gets it on Monday, or even takes it from the office on Sunday, I presume it would be competent evidence against the debtor. As a bond or contract, the suit is founded on it, and cannot be maintained, because it is against a public statute; hut, as an admission, it is only evidence of a previously existing liability. The suit is founded on the previous liability; the admission is only evidence of the fact that defendant acknowledged that liability. The evidence of admissions of defendant, -Which are remarked upon by the judge, may have been entirely sufficient to establish the defendant’s liability, independent of the bond. We cannot carry the law so far as to say, that the admission, of a previously existing debt, made on the Sabbath is not good. There have been two verdicts for the plaintiff on the merits. The last before a judge of eminent ability and wisdom, accumulated by the experience of nearly half a century. We incline not to disturb the verdict, which seems to have had his full approbation, as he overruled the motion for a new trial, if we can sustain it. We think we can do so without violating the law. Exceptions, as to the pleadings, are not to be favoured beyond decided cases after a full hearing on the merits. Judgment affirmed.