Gray's adm'rs v. White

COLLIER, C. J. 1. It is insisted, that the replication to the fourth plea is too limited in its averments; that it is not enough to show that the debt sued on was contracted in another State, but it should go further, and deny that the payee- of the note resides here. Such is not the law. The statute which requires the presentation of claims against the estate of a deceased person within eighteen months from the grant of letters testamentary, or of administration, contains an express exception in favor of debts contracted out of the State. Under the influence of that excep [492] tion it has been held, that a replication which sets out that the debt in suit was contracted in another State, designating it by name, is entirely sufficient. [Sanford, adm’r v. Wicks, 3 Ala. Rep. 339.] The replication in the case at bar, comes fully up to the requirement of the case cited. 2. The statute of 4 and 5 Ann, chap 16, enacts that the defendant in any action or suit, &c., may, with-leave of the court, plead as many several matters thereto, as he shall think necessary for his defence. Our statute upon the subject uses terms not materially different, and provides, that «the defendant in any cause may plead as many several matters as he may judge necessary to his defence.” Under the English statute it has been held, that although it is permissible to interpose several pleas to the declaration, the defendant cannot rejoin two several matters to the plaintiff’s replication. [Warrant v. Ives, 2 Strange’s Rep. 908; 5 Bac. Ab. K. 3, 447.] And such being the settled construction of that enactment, our act which was borrowed from and passed in reference to it, must receive a similar interpretation. Consequently, the direction of the court to strike out one of the defendant’s rejoinders to the plaintiff’s replication was entirely proper. 3. It is argued for the plaintiff in error, that the general rule, which requires the plaintiff in an action ex contractu, to make out his right to recover against all the defendants, in order to a judgment against any, proves the. charge of the circuit judge to be erroneous. To the justness of this conclusion we cannot assent, when attempted to be applied to the present case. The defendants are not sought to be charged upon a contract made by themselves, but the declaration sets out a legal liability, made by the intestate and his copartners. An executor or administrator, is in general regarded as a mere trustee for creditors and the legatees, or distributees, and when sued upon a contract entered into by his testator or intestate, will not be considered as having promised in fact. They succeed to the legal rights of the deceased in such part of his estate as they are entitled to, and must be sued for the recovery of the debts with which he was chargeable. [Grassner v. Eckart, 1 Binn. Rep. 575; Wilson v. Wilson, 9 S. and R. Rep. 428.] And it has been held, that the rule, if one of two persons having a joint cause of action ex contractu, ¿sues alone, advantage may be taken under the general issue, does [493] not apply to a party 'suing in a representative character, for in the latter case, the non-rejoinder can only be taken advantage of by plea in abatement. [Holmes v. De Camp, 1 Johns. Rep. 34.] In Griffiths v. The exTs of Fiestall, [1 Mood. & M. Rep. 146,] two defendants being sued as executor and executrix, pleaded ne unques executor and executrix, it being proved that one of them only was an executor’, a verdict was claimed for both defendants, or that the plaintiff should be non-suited, under the general rule, 'that if one defendant be discharged in assumpsit, the other must be also. The court held, that the plaintiff was entitled to a verdict on the„ counts which lay the promises by the testator. In those counts, the contract is alleged to have been made with the testator, and is proved as laid; the principle does not apply to a plea which does not put the contract in issue, but only goes to the personal discharge of one of the parties. [See also 1 Saund. Rep. 207, note a: 2 Lomax’s Ex’rs & Adm’rs, 416.] The result of that case was not influenced by the fact that the defendants were sued as executors, instead of administrators. It is alike applicable in its reasoning to each description of representatives, and ascertains the law correctly. It follows from what has been said, that the judgment of the county court must be affirmed.