Boggs v. Bard

[103] The opinion of the court was delivered by Huston, J. — This was an action of assumpsit .by the plaintiff* and his demand consisted of an account settled with John Boggs, in his life time, by J. Johnson, and a claim by the plaintiff as administrator of J. Boggs against James Johnson in his life time. The demands are both of ancient date. The settled account was admitted in evidence. The evidence of the assumpsit to the administrator was rejected, and to that exception was taken. ■ . - ' The reasons which governed the Court of Common Pleas we have not, but their decision has been attempted to be supported on the following grounds: — That the claim is very old, and,barred by the'statute of limitations: That the deeds offered in evidence, are " between other parties, and not admissible here: And, that this part of the demand is one which cannot be joined with the claim for debt to John Boggs in his life time., The first is no good reason for.rejecting proof of the original debt. It is true, the statute of limitations, if pleaded, may bar it; but, evidence may be given, which will take it out'of-the operation of that statute, and this cannot be known until all the testimony is heard. The parties are all relations, and the transaction on which the claim arose, although a little complicated, is. one on which a demand might arise* and which, from the letter of J. Johnson, the deposition of Lawrey, and the deeds', may be easily understood. The deeds, to be dure, have only a remote bearing on the cause, but they are all' referred to in the deposition of Lawrey; that deposition, and the letter, and the deeds, and record, make out, or are supposed to make out this case: ' That John Boggs, in his life time, convéyed one half of his farm to his son, Jlndrew, the plaintiff, and left the other half to pay his debts, and be divided among his daughters: That Jlndrew sold his half to R. Miles, for five hundred dollars, who offered the same price for the other half: That there .was a judgment against John Boggs in Mifflin county, where he lived* and a deed in favour of J. Johnson, as administrator of Bailey: That it was agreed that the half tract left by J. Boggs, should be sold by Johnson on that judgment, and purchased by him', and tbén' conveyed to R. Miles' for the sum of five hundred dollars, which he offered* and- the debt to Bailey’s estate taken out of the purchase money, and the balance go to the creditors of J. Boggs, or to. his daughters: That the land of J. Boggs, deceased, was sold on that judgment, purchased by Johnson, and conveyed by him to R. Miles, who paid him the five hundred dollars: That part of this sum, which remained after paying the debt to Bailey’s estate, is the subject of this suit. Whether the evidence offered proved this case, was for the jury, and it ought to have gone to them. ' .... The deposition,which mentions deeds and records, cannot be read, [104] unless the deéds and records are produced. Deeds and records, mentioned by parties in a contract, or referred to for dates and sums, may be evidence in. a cause between suitors, who are no parties to those deeds or records — not for all,purposes, not to show title, or to prove the points adjudicated in the suit, as a bar, 'but as proving facts material in a cause trying. The last objection is also untenable. It is true, Boggs, as administrator, had, strictly speaking, no power to make this contract; but he made it, and no doubt is even intimated, that it was the best thing he could do for the estate he represented, and for his sisters. They do not complain, and never did. If he gets this money, it will not be his own; it was hot understood or agreed to be his own. It was to be, and will be assets in his hands, as administrator, to pay debts,-or to. distribute. The-papers offered, show there were claims against; the estate, and at least, one sister to take it if there were no claims; There are many cases in which an executor, or administrator, may sue, and may recover too, either in his representative, or individual capacity. Without goinginto a particular distinction, it may be laid down as a general rule, that where the money sued for will be, must be, assets, it is not error to name himself administrator. In this case the defendant ought not to make this objection; for we see on this record, evidence, that he expects to set off claims against the estate of J. Boggs. To meet this claim, if suit had been brought by Andrew, in his own name alone, the defendant would have found more difficulty in getting his defence before the jury.,. Judgment reversed, and a venire facias de novo awarded.