Cleveland v. Chandler

By JUDGE COLLIER. The agreement of the plaintiff, to accept the fifth plea of the defendant, as a plea in abatement, is a waiver of all obligations as to matters of form. It was competent for the plaintiff to have declined noticing the plea, on the ground that it contained abatable matter, and that pleas in bar had already been pleaded. The law has prescribed the order which the defendant must observe in pleading; and if matters, posterior, in the order of time, are pleaded, those which are prior, are tacidly waived. Pleas in abatement must come in, if at all, before pleas in bar; and, if both are pleaded together, the latter supersede the former, without the action of the court upon the question. Such would have been the course of the law, uncontrolled by the agreement of the parties, or by the manner in which the plaintiff may treat the defendant’s pleas, either of which may prevent its operation.— In this case, there is no agreement upon the point: the plaintiff has, however, replied, and must be understood to accept the plea, as if pleaded in the proper order; and this inference is the more rational, as the judgment, if in favor of the plaintiff, would have been final. The demurrer cannot reach the order of pleading, by the defendant; the correct course, if a plea in abatement and in bar be pleaded together, is to move to [491] strike out the former, or treat it as a nullity. I will not say, that a demurrer would not be sustained, if taken by the plaintiff, to the defendant’s plea ; but, when the plaintiff replies, he impliedly admits that the plea is regularly filed, and cannot have the benefit of the defendant’s demurrer, farther than to question the legal merits of his plea. It remains, now, to consider the sufficiency of the plaintiff’s replication. At common law, the executor derived the authority to administer his testator’s estate, from the will, exclusively, probate was required that its genuineness might be ascertained, and its registration was intended as evidence to the world of who was the executor. It would, therefore, follow, that, as all persons, named as executors in the will, derive a joint interest, they should join in the prosecution of actions, in regard to the estate. And no injury could result from such requisition, since no bond, or other indemnity was required, for the correct administration of the estate. In this country, the case is very dissimilar: an executor, here, before he obtains letters testamentory, (which is his authority to execute the directions of the will) is required to enter into bond, with sufficient security, conditioned for the pevlormance of all the duties, which may, by law, be required of him, as such.a By the same act; executors are required, before letters testa mentary issue, to take an oath to perform their duties, as such; and may, at pleasure, resign their authority.b From thence it is obvious, that executors here, derive not their authority entirely from the will; and, that they are.not entitled to exer cise any power, as such, until they have given bond, and taken the oath prescribed ; and, if they assume to act as executors, until these shall have been done-other than in the collection, and in taking care of the testator’s estate-they act in their own wrong. In Frask v. Donoughue,c the Supreme court of Vermont decided, none can act as joint-executors, but such as give bond, under the statute. I have not taken occasion to examine the act of Vermont, with a view to ascertain its similarity with the provisions of our act, but suppose it to be substantially the same. What object had the legislature in view, in requiring an executor to give bond and security ? It was, doubtless, to provide an indemnity for the payment of the debts and legacies. To permit an executor, who has not complied with this requirement, to join in the prosecution of suits, would be to afford an opportunity, by which that object would be thwarted, [492] and frequently frustrated. If all must join in actions, in re-to the testator’s estate,'then eaeh would be competent to receive money or property, sued for, and give a discharge, which would be binding on all.a This, surely, is notallowa-ble, by our law. There is, then, no error, in sustaining the and the judgment must be affirmed: and, of this opinion, is a majority of the court. Judgment affirmed. Footnotes [a] Act 14th June,1821, Sec. 13;-Laws of A-lab. 195. [b] Sec. 12 and 15. [c] 1 Aik.370-cited fm 5 Am.Dig.271. [a] 1 Aik. 28-cited fm5 Am.Dig. 271.