Chapman v. Davis

Martin, J., delivered the opinion of this court. The principal question presented for the examination of the court in this case, is that which respects the validity of the plea in abatement, offered by the defendant to the amended declaration of the appellee, at the March term of Charles county court, 1842. And it is necessary to recur to the pleadings, for the purpose of understanding what was the predicament of the defendant below at the time he exhibited this plea in abatement. It appears that the writ was issued on the 12th of March 1839. At the August term of the court in the same year, the plaintiff filed her declaration, to which the defendant pleaded non assumpsit. The cause was continued, under a general imparlance, until the August term 1841, when leave was obtained by the plaintiff to amend her declaration. This leave was not exercised, and was withdrawn at the March term 1842. At this term, the defendant filed his first plea in abatement, which was rejected by the court. At the same term, the defendant tendered a demurrer to the declaration, but which the court refused to receive, unless the general issue was withdrawn. This plea was accordingly withdrawn, and the demurrer renewed and sustained. The plaintiff then, upon leave, amended her declaration, and placed the defendant under a rule to plead. At this point of time, the defendant tendered to the court a plea in abatement, similar to the one which he had before exhibited, and to which the court again entered a ne recipiatur. The plea alleges, as matter in abatement, a variance between the writ and declaration, in this respect: That the plaintiff sued out her writ as administratrix of Thomas A. Davis, and has declared as his executrix. In this condition of the pleadings, the counsel for the appellee have contended, that this plea in abatement came too late, and that the county court committed therefore no error in re — 176 — jecting it. This objection to the plea is, we think, properly taken, and must be sustained. In Chamberlin against Hite, 5 Watts, 374, the court say: “A plea in abatement cannot be put in after a general imparlance, and if the defendant wish to preserve his right to such plea, he must vary his form of prayer, by making it with the reservation of his right, and asking a special imparlance, which must be entered on the record. Nor can it be pleaded after a plea in bar, and if a plea in abatement is put in after a plea in bar, the plaintiff is not bound to reply to it. It ought to be pleaded within four days after the declaration has been delivered.” In Wilson against Hamilton, 4 Sarg. & Raw., 239, it is declared, that a plea in abatement can never be pleaded after a plea in bar, unless the matter has arisen since the plea in bar, in which case it may, provided it be done the first opportunity that is presented, for a plea in bar waives only matter in abatement, then existing. 1 John. Cas., 101. Passages from these cases have been selected, as containing a clear and distinct statement of the acknowledged principle, that when the party has, by the character of his pleading, waived all objections to the capacity of the plaintiff, or any other abateable matter, then existing, he cannot be allowed to resume the objection. As the variance which the defendant has presented as pleadable in abatement, existed equally between the writ and original declaration, and the writ and the amended declaration, the amendment of the nar, and the rule to plead anew, could not in this respect change the rights of the parties. The matter relied on in abatement existed at the period when the plea in bar was filed, and although the leave granted to plead de novo, gives to the defendant the right to plead any plea to the action which he may select, it does not confer the right to raise dilatory objections, of which the party was aware when he exhibited his plea in bar, and which he had thus surrendered. The objection next taken to the validity of this plea, that it was pleaded without demanding oyer of the writ, is equally fatal. This was the established practice in the English courts, — 177 — and the right to plead in abatement, a variance between the writ and count, was therefore practically abolished, when Lord Mansfield, in the case of Boats against Edwards, in 1779, announced to the bar, that the practice, for the defendants to pray oyer of the original, which is so much used for delay, was not warranted by any principle of justice, and ought not to exist. In Holt against Finch, 1 Wil., 394, the court say: “Formerly, when the whole original writ was spread in the same roll with the count, if a variance appeared between the writ and count, the defendant might take advantage thereof, either by motion in arrest of judgment, writ of error, plea in abatement, or demurrer. But afterwards it was determined, that if the defendant will take advantage of a variance between the writ and count, he must demand oyer of the writ, and shew it to the court.” This practice appeal's to have been adopted in several of the American courts, where the first process is, as in Maryland, a capias ad respondendum. In the case of the Bank of New Brunswick against Arrowsmith, 4 Hals., 284, the Chief Justice, after having examined the learning on this branch of the law, says: “From the view which has been taken of the practice in the court of King's Bench, to which the proceedings of this court have most nearly approached, and to which we have been accustomed to resort for precedent, when regulations of our own are wanting, it appears that at, and prior to the year 1776, oyer of the writ was constantly granted; and I am not aware that in this court the practice has since been abrogated or denied. The defendant may therefore avail himself of a variance between the writ and declaration, either by oyer and plea, as has been done in the present case, or by a motion to set aside the proceedings for irregularity.” In Slocum against Slocum, 8 Watts, 371, the court maintain the proposition, “that, a variance between the writ and the declaration, could only be taken advantage of by craving and obtaining oyer of the writ, and then pleading the variance in abatement.” The same doctrine is distinctly announced in Chirac against Reinecker, 11 Wheal., 302, where the Supreme — 178 — Court declare, that if in any case a variance between the writ and declaration can be taken advantage of by the defendant, it is an established rule, that it cannot be done except upon oyer of the original writ, granted in some proper stage of the cause. It is certainly true, that in this State the writ is in court, and forms a part of the record, and bears in this respect no analogy to the practice of the English courts. But it is too narrow a view of the subject to suppose, that in demanding oyer of the writ, the only purpose is to place it on the rolls of the court, and to make it a part of the record. The writ, it has been determined is, without oyer, no part of the pleadings, or even the proceedings in the cause. And the object of craving and obtaining oyer of the writ may well be, to bring it to the view of the court, by making it a part of the pleadings, and thus putting the defendant in a situation to plead any variance that may exist between the writ and declaration, in abatement, or to file, according to some of the cases, a special demurrer. Although we consider, that the variance in this case between the writ and count, was a matter which the defendant could have pleaded in abatement, if he had presented the objection in due time, and in a properly constructed plea, the court below could not do otherwise than reject the plea, under the circumstances in which it was exhibited. If this was a case in which the plaintiff could only have maintained an action in her individual capacity, the addition of the word “administratrix,” might have been treated as a superfluous description. This is the language of the court in Sasscer against Walker’s Ex’ts, 5 G. & J., 107. The Chief Justice says, “if the appeal bond, on which the suit was brought, was a contract on which the plaintiffs could sustain an action only in their individual, and not in their representative capacity, then the addition of the word executors, in the writ, might be construed and treated as a superfluous description, and not irregular, the demand being the same.” But the case just referred to establishes the proposition, that upon the cause of action now under consideration, the plaintiff could have maintained an action, either in her personal or representative cha — 179 — racter, and having sued in the latter capacity, she was bound, we think, to sustain it. The result is, that if oyer of the writ had been prayed and granted, the pleadings would have presented a variance, of which the defendant could, at the proper time have availed himself, by plea in abatement. It is perceived, from the fact of the court having addressed itself to this plea in abatement, that it is regarded as properly and legally forming a part of the record. The affidavits having shown, that a plea in abatement was tendered by the defendant below, immediately upon the declaration being amended, and a rule to plead laid, and that to this plea a ne recipiatur was directed by the court, it was the duty of the clerk to have entered these proceedings on the record of the court, and having omitted to do so, the record was properly corrected. While we are of opinion, therefore, that the court below, in directing an amendment of the record, in accordance with the fact, committed no error, we desire to be understood as expressing no opinion on the question, whether an order of this kind can be the subject of appeal? The first and second exceptions have been abandoned. It appears from the question presented by the third bill of exceptions, that after issue was joined, the plaintiff produced, and offered to read in evidence to the jury, the letters testamentary, granted to her by the orphans court of Charles county, ns executrix of the will of Thomas A. Davis. As the issue was joined on the count, we can perceive no just objection to the admissibility of this testimony. The plaintiff declared as executrix, and it was certainly competent to show, by the testamentary letters, that she was entitled to the character she had assumed. We concur, therefore, with the court below in this exception. The question presented by the fourth exception, relates to the admissibility of the parol evidence offered by the defendant, to prove that Samuel Chapman and Thomas A. Davis, were members of the vestry of Port Tobacco church, about the 29th of July 1815; and that they continued members of the vestry, from the 29th of July 1815, to the time of their signing the note, in 1822, to John B. Wills. — 180 — The fact proposed to be proved by the defendant, was material to the issue, as the jury might have found from the position of Davis, as a member of the vestry, in connection with other testimony, that he intended to sign the note in question, not as the surety of Chapman, but as a principal obligor. And the right of the defendant to introduce this testimony, turned on the question, whether it was incumbent on him to produce the record of the vestry as the best evidence, that Thomas A. Davis was, at the period referred to, one of its members. The object of the evidence was, to prove a continuing membership by Davis, from 1815 to 1822, and this is a fact which could be established by his acts. The proposition of the defendant must then have been, not to give evidence of the election or appointment of Mr. Davis as a member of the vestry, but to show by his acts and conduct, that he continued for the period referred to, to exercise the functions of a member of the vestry, and was a member. In this aspect of the case, we can perceive no objection to the introduction of the testimony. In Bevan against Williams, 3 Term., 635, note a, the action was for non-residence, against a clergyman; and tire single question was, whether the plaintiff, in order to maintain this action, must prove admission, institution, and induction? The plaintiff did prove several acts done by the defendant, as parson of the parish, such as receiving tithes, serving the church, and acting in other respects as parson. Upon this question Lord Mansfield said, “all evidence is according to the matter to which it is applied, and the person against whom it is used. Against a third person there might be some reason for the objection; but as against the man himself, his own letters, receiving tithes, and cutting timber on the glebe, are decisive.” We think, therefore, that it was competent for the defendant to prove, by parol evidence, that Thomas A. Davis acted as a member of the vestry, from 1815 to 1822, and that the court below erred in rejecting the testimony offered for this purpose. The instrument of writing, set out in this bill of exception, as the paper.of the 29th of July 1815, was clearly inadmissible. This paper, standing alone, furnished no evidence that Thomas — 181 — J{. Davis was a member of the vestry at its date, and the court below committed no error in rejecting it. As it is apparent from the record, that the appellant, at the trial below, had not the benefit of the fact which he proposed to establish by parol evidence, that Thomas A. Davis was a vestryman of the Port Tobacco church in 1815, and from thence to 1822, and as we think the court erred in rejecting this testimony, the judgment of the county court will be reversed, and a procedendo awarded. JUDGMENT REVERSED AND PROCEDENDO AWARDED.