Beach v. Baldwin

WxnuAMs, J. The principal question below, as we are informed, was, whether this plaintiff was bound to receive and answer the plea in abatement. When this cause came into the superior court, after the decision of the county court was reversed, the party who had been compelled to carry it there, by the mistake of the court below, could not be deprived of any right he would have had, if that erroneous judgment had not existed. This defendant, before the amendment, had a right to plead in abatement. That right was made useless to him, by the allowance of an amendment; which amendment was not legally permitted. Certain it is, that this defendant should not be necessarily prejudiced, by this error of the court. The plaintiff, however, says he had already filed his plea of abatement; and as the declaration is restored to its first state, m must be also the pleadings to it. But how is this court to [487] know» that there were pleadings below? The record and file shew no such things But the plaintiff claims to prove it, by paroL No authority is produced to support this claimand it seems to me contrary to analogous cases. It is well settled, that bail can only prote a surrender of the principal, by the record. Fitch v. Hall, Kirby 18. Gallup v. Denison, Kirby 430. 434. So when the pendency of another action is pleaded, a proferí of the record is made.- 1 Went. Plead. 8. 64. 3 Ld. Raym. 55. This would be altogether unnecessary, if parol evidence of that fact could be admitted. Indeed, I believe that will not be contended. I know no reasons for requiring record proof in those cases, which are not equally applicable to this. Why is it, that bills of exceptions are required, as to the admission and rejection of evidence in the inferior courts, except that the superior court cannot go into parol evidence, as to what has been transacted there ? And if they can enquire and have an issue joined, as to what was the state of the pleadings there, how long before we may also be called upon to ascertain, by pa-rol, what was the evidence produced ? A practice of this sort would be as novel as dangerous; and in the absence of all authority, it cannot be adopted. Without, therefore, examining whether the plea claimed to be given in the county court, and that before us, are substantially the same ; or, if they are not, whether this could be received ; I think, there is no legal proof of the existence of such a plea in the court below ; and so this plea was properly received. It is, however, now strenuously contended, that the pica is insufficient, for a variety of reasons ; one or two of which only it is necessary to notice. In the first place, it is said that the plea does not state where the co-executors reside ; nor that they are now executors. It is á well settled principle, that pleas of this character require not only the utmost precision and technical accuracy, but that in general, they must anticipate and exclude what, according to the rule that governs other pleadings, it would be incumbent on the other party to reply to. 2 Conn. Rep. 381. per Gould, J. The pleader must also, by his plea, give [488] such information as will enable the plaintiff to make a bettef wrjt j Chill. Plead. 441. And in Wadsworth v. Woodruff, I Day 28. where there was an action of trespass, and a plea in abatement, that the other proprietors should have been joined, viz. G. G. and his assigns, and the héirs of R. G., this court say, that if this plea be good, it allows the defendant to shew a bad writ, and exonerates him from the obligation to give the plaintiff a better, unless he may in his next writ describe his co-plaintiffs in the same manner in which they are described in this plea. I see not why that decision is not conclusive in this case, unless the defendant can show, that the plaintiff need not point out where his co-plaintiffs reside. — • Such, however, has always been our practice ; and as the jurisdiction of our courts in transitory actions depends upon the place of residence of the parties, such a practice is not only proper but necessary, and, in ordinary cases* cannot be departed from. The principle, therefore* of the common law requires, in this state* that these facts be shown in the plea* however the forms may be ; unless indeed, this is one of those cases, where the fact disclosed is of that kind which must necessarily be known to the plaintiff, as the place of his own residence. When we look at this plea, and find that the will was proved in 1812, certainly there can arise no presumption that the plaintiff knew where these executors now reside. Another objection equally fatal, is, that it does not show that these persons are now executors. It is claimed, that no such allegation is made in our best forms; and it may not be necessary in Great-Britain; for there the doctrine seems to be, once executor, always executor. They seem to consider him as an officer appointed by the testator, whom they have no power to remove or controul. And it has been said, by judges of great authority* where the executor had absconded, that since the testator had adjudged him a proper person to be intrusted with his affairs, the ordinary cannot adjudge him otherwise, upon a disability by the canon law. Rex v, Raynes, 1 Salk. 299. 3 Salk. 162. Holt 310. It has also been held, where an executor had refused to act, after taking the oath, and administration was about to be granted, that still the executor, after taking the oath, could not be admitted to refuse. 1 Vent. 335. [489] And although this seems to be doubted in the ecclesiastical courts, yet they hold, that if the executor has with the effects, he has taken upon himself the burthen and assumed the responsibility of an executor. 3 Phil. 577. And it has even been holden, that if an executor renounced, and an administrator was appointed and died, after his death the executor might act as such, if he pleased. Plowd. Com. 280. And so immovable is an executor, that money has been given to prevail upon one that is an improper person to' relinquish the trust. Hill v. Mills & al. Comb. 185. S. C. 1 Show. 203. But by our law, the judge of probate is impowered to remove an unsuitable person ; and if the rules above mentioned are correct, this court will no more presume, to support a plea in abatement, that an executor remains executor, than that he continues to live, because he was once alive. The strictness required in pleas of this kind,allows no such presumption. Roberts v. Moon, 5 Term Rep. 487. And in this case, when we look into these pleadings, and see that the estate has been in a course of settlement for more than twenty-years,! think, if we were permitted to indulge in presumptions, we should presume, after this lapse of time, that they had been removed, rather than that they' remained executors. But nothing is to be presumed to support a plea of this character. I am, therefore, of opinion, that the plea is insufficient; and that the judgment must be reversed. The other Judges were of the same opinion, except Church, J., who had been of counsel in the cause, and therefore, gave no opinion. Judgment reversed.