Wilson v. Bothwell's Administrator

BRICKELL, J. This action was brought by the appellee, suing as the administrator of the estate of Ellen Bothwell, deceased, against M. L. Wilson, the appellant; and was founded on a bond made by the defendant, payable to the plaintiff’s intestate. The suit was commenced on the 3d day of February, 1870; and the trial was had on the 5th day of March, 1872. The defendant pleaded, “ in short by consent, the general issue, with leave to give in evidence any matter that could be specially pleaded in bar; ” and, for greater certainty, he also pleaded ne unques administrator, “in short by consent.” On the trial, the plaintiff offered in evidence a certified transcript from the records of the court of probate of St. Clair county, showing his appointment as administrator of the estate of said Ellen Both-well, by virtue of his office of sheriff of said county. The appointment appears to have been made on the 18th day of February, 1869; and the plaintiff’s term of office as sheriff expired in November, 1871. The defendant objected to this evidence, and l-eserved an exception to its admission by the court. He also asked three charges, which were refused, and which, in effect, asserted the proposition, that his administration expired with his term of office as sheriff, and, on that account, he was not entitled to recover. The refusal of these charges, and the admission of the evidence objected to, are now assigned as error. The plaintiff was certainly administrator, entitled to sue, at the commencement of this suit. If his authority to continue the suit was vacated by the subsequent expiration of his term of office as sheriff, the fact should have been pleaded, not as a general plea in bar, which has relation to the commencement of the suit, and negatives the plaintiff’s right of suit then, but specially [379] to the further maintenance of the suit, or puis darrein continuance, according to the occurrence of the fact before or after issue joined, or plea pleaded. If the fact occurred before issue joined, or plea pleaded, then it should have been pleaded to the further maintenance of the suit; if after issue joined, or plea pleaded, then it should have been pleaded puis darrein continuance. McDougald v. Rutherford, 30 Ala. 253; Sadler v. Fisher, 3 Ala. 200; Burns v. Hindman, 7 Ala. 531. If the fact is not so pleaded, it cannot be given in evidence. The plea of ne ungues administrator, interposed by the defendant, was a denial only that the plaintiff was administrator at the commencement of the suit. Evidence that he was then administrator, negatived the plea. It was not competent for the defendant, under this plea, to give evidence of the termination of the plaintiff’s authority as administrator pending the suit. That was not the issue he had tendered, or which the plaintiff can be supposed to have come prepared to meet. The rulings of the court below were in accordance with these views, and its judgment is affirmed.