Ligon v. Bishop

Tarbell, J.: This case comes to us upon demurrer to declaration, stating as causes of demurrer, a variance between declaration and attachment, and .that the declaration does not make profert of letters testamentary. The facts are substantially these : On the 25th day of October, 1866, “ Emily E. Bishop, executrix of the will of N. B. Raiford, deceased, and A. S. Bishop, executor of the aforesaid will, m right of his wife, the aforesaid Emily E. Bishop,” made oath before Joel J. Bullock, Esq., a justice of the peace of Pike county, “ that Wm. B. Ligón is j ustly indebted to them as executors of the estate of N. B. Raiford, deceased, in the sum of $1,234 68, and that,” etc. At the same time Emily E. Bishop and A. S. Bishop, with Joseph H. Packwood, filed their bond on attachment, etc. Thereupon the magistrate issued a writ of attachment against said Ligón, in favor of said Emily E. and A. S. Bishop, as executors, etc., returnable to the circuit court, etc. [531] On the 20th day of February, 1857, Emily E. Bishop, Alfred S. Bishop, John N. Summers, and Joseph Packwood, as executors, etc., of N. B. Baiford, deceased, joined, as plaintiffs, in the declaration upon the foregoing writ of attachment, referring particularly in the declaration to the attachment papers above, and declaring them a part thereof. Defendant demurred to this declaration, assigning the following special causes: 1. The parties for whom the attachment was sued out, and at whose suit the same was obtained, are the above named Emily E. Bishop and A. S. Bishop, only. Yet the declaration sets forth the names of John N. Summers and Joseph H. Packwood, as some of the parties plaintiff, though the said attachment was not obtained at their suit. 2d. The plaintiffs in the attachment and the plaintiffs in the declaration are different. 3d. If the parties named in the declaration as plaintiffs are such, then the attachment bond would be a nullity for want of the security required by law, there being no obligor in said bond, except such as are parties plaintiff, .according to the declaration. 4th. The plaintiffs have not made proferí of their letters testamentary in their declaration. The demurrer was overruled, and the following is the order of the court below, thereupon, or so much as is material, viz : “ And the said defendant having failed to. file a plea supported by affidavit of a good and substantial defense, it is further ordered by the court that the said plaintiffs, Emily E. Bishop, Alfred S. Bishop, John N. Summers and J oseph II. Packwood, executors,” etc., “do have and recover of and from the defendant,” etc., “ the sum of,” etc., “ with interest at the rate of ten per cent.,” etc. Thereupon, defendant, Ligón, brought writ of error to this court, and assigns a single cause of error, to-wit: that “ the court below erred in overruling the demurrer and entering judgment by default against the plaintiff in error.” The questions for our consideration are: [532] 1. The variance between the attachment and declaration; and, 2. The omission of profertof letters, etc., in the declaration. We understand the practice to be too well settled to require discussion or elucidation upon the points stated. The affidavit, writ, and declaration should correspond. The variance is fatal on demurrer. We know of no rule dispensing with profert of letters, etc., and.think the demurrer in this respect also well taken. Chit. Pl., Graham’s Ch. Pr. and Genl. Pr. The points in this case are made the more emphatic, if possible, by the reference in the declaration to the attachment papers, requesting them to be taken as a part thereof. The plaintiffs will be entitled to amend, and when this cause is again before the circuit court, parties will find no difficulty on the subject of amendments by referring to the Code. The judgment of the court below is reversed and cause remanded.