L. as executor to W. instituted an action of assumpsit on 8
April, 1826. The declaration stated L. to be executor of W. and
claiming as executor for money paid by him as such. The defendant
pleaded nonassumpsit, and a verdict and judgment were given for the
plaintiff. After the institution of the suit and before the trial,
the letters testamentary of L. were revoked by the Orphan's Court
of the County of Alexandria, he having, after being required,
failed to give bond with counter-security as directed by the
court.
The powers of the Orphan's Court of Alexandria are made by act
of Congress identical with the powers of an orphans' court under
the laws of Maryland. It is a court of limited jurisdiction, and is
authorized to revoke letters testamentary in two cases: a failure
to return an inventory or to account. The proceedings against L.
were not founded upon either of these omissions. The appropriate
remedy, on the failure of the executor to give counter-security, is
to take the estate out of his hands, and to place it in the hands
of his securities.
The issue tried by the jury was on the plea of nonassumpsit. As
the plaintiff was incontestably executor when the suit was brought
and when issue was joined, and could then rightfully maintain the
action, and the revocation of the letters testamentary was not
brought before the court by a plea since the last continuance, as
it might have been; the defendant must be considered as waiving
this defense, and resting his cause on the general issue.
A plea since the last continuance waives the issue previously
joined, and puts the case on that plea.
It is not doubted that the revocation might have been pleaded,
and it ought to have been pleaded in order to bring the fact
judicially to the view of the circuit court. It ought to appear
upon the record that judgment was given against the plaintiff in
the circuit court, because he was no longer executor of W., not
because the defendant was not indebted to the estate of W. and had
not made the assumpsit mentioned in the declaration.
The rule is general that a plea in bar admits the ability of the
plaintiff to sue, and if the parties go to trial on that issue, the
presumption is reasonable that this admission continues.
When a suit is brought by an administrator, during the minority
of the executor, his powers as administrator are determined when
the executor has attained his full age, and the fact that he has
not attained his full age must be averred in the declaration. But
if this averment be omitted and the defendant pleads in bar, he
admits the ability of the plaintiff to sue, and the judgment is not
void.
A distinction seems to be taken between an action brought by a
person who has no right to sue and an action brought by a person
capable of suing at the time, but who becomes capable while it is
depending. In the first case, the plaintiff may be nonsuited at the
trial; in the last, the disability must be pleaded.
Page 30 U. S. 225
The rule is that when matter of defense has arisen after the
commencement of a suit, it cannot be pleaded in bar of the action
generally, but must, when it has arisen before plea or continuance,
be pleaded as to the further maintenance of the suit and when it
has arisen after issue joined,
puis darrein
continuance.
It may safely be affirmed that a fact which destroys the action,
if it cannot be pleaded in bar, cannot be given in evidence on a
plea in bar, to which it has no relation. If any matter of defense
has arisen after an issue in fact, it may be pleaded by the
defendant, as that the plaintiff has given him a release or in an
action by an administrator that the plaintiff's letters of
administration have been revoked.
The defendant in error, as executor of John Wise, on 8 April,
1826, instituted an action of assumpsit in the circuit court. The
declaration contained two counts, the first for money paid, laid
out, and expended; the second on account for money paid, &c.,
in which the defendant is alleged to have been found in arrears to
the plaintiff as executor. The letters testamentary of the
plaintiff, as executor of John Wise, were recorded by the orphans'
court on 9 November, 1826.
The jury found a verdict for the plaintiff, and assessed the
damages at $2,431.59, with interest from 1 January, 1820, subject
to the opinion of the court on a case agreed. The circuit court
gave judgment for the plaintiff, and the defendant prosecuted this
writ of error.
The case is stated in the opinion of the court.
Page 30 U. S. 226
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is an action on the case brought by Adam Lynn as executor
of John Wise, for the use of Thomas C. Lyles and others, against
William Yeaton, in the Circuit Court
Page 30 U. S. 227
of the United States sitting in the County of Alexandria. The
declaration contains two counts, one for money paid by the
plaintiff Lynn as executor for the use of the defendant and the
other on an account settled by the said plaintiff as executor with
the defendant for money due by the defendant to the plaintiff as
executor, as aforesaid.
The cause was tried on the issue of
nonassumpsit, and
the jury found a verdict for the plaintiff below, subject to the
opinion of the court on a case agreed. Judgment was given for the
plaintiff, and the then defendant has brought that judgment before
this Court by a writ of error.
The case agreed is in the words following.
The plaintiff to support the issue on his part gave evidence to
prove that John Wise the testator, in his lifetime had endorsed a
note as security for the defendant to one Robert Young for the sum
of _____, upon which note judgment was obtained by said Young
against such drawer and endorser, and execution of one of the said
judgments being levied upon the goods, &c., of the defendant,
he gave a forthcoming bond with the said testator as his security
in such bond, upon which bond judgment was regularly entered
against principal and security in the lifetime of testator. The
plaintiff then produced and read in evidence to the jury the
proceedings in two chancery causes, the one by the said Robert
Young against the said Adam Lynn
et al.; the other by the
Bank of Alexandria against the same defendants, thereto annexed.
And the plaintiff in order to show that the decree in the first of
the said chancery cases had been paid and satisfied by the
plaintiff by way of a discount between him and the said Young, gave
evidence to prove that the plaintiff had endorsed a note as
security for said Young, discounted for his said Young's use in the
Branch Bank of the United States, upon which note the said bank had
recovered judgment against the said Young for $300 with interest
from 4 March, 1817, till paid, and costs. The said note and
judgment had been taken up by plaintiff, as security for said
Young, on 24 March, 1820, and thereupon assigned over to the
plaintiff, and that the said Robert Young, by way of indemnity and
payment to the plaintiff, assigned over to him the said judgment
obtained by Young against the defendant and all his claims and
Page 30 U. S. 228
remedies, &c., upon the estate of the testator, as by a
short copy of the said judgment and assignment endorsed thereon
thereunto annexed. That the plaintiff before the institution of the
said suits in chancery, and after the death of the testator, had
sold out sufficient of the stocks mentioned in the said deed to pay
the said debt due the said Young, but without any reference to the
said suits or to the said Young's claim, nor for the purpose of
satisfying any creditor of the testator, and, at the time of the
institution of said suits, had the money in his hands proceeding
from such sales, which money he has retained as against such of the
cestuis que trust named in the said deed as are named as
equitable plaintiffs in this case; that the will of the said John
Wise was duly proved and recorded in the orphans' court, and
letters testamentary thereon duly granted to the plaintiff, and
other proceedings relative there to therein had, as appeared by the
annexed transcript of proceedings in the orphans' court, and that
the said Bank of Alexandria recovered judgment of the plaintiff, as
appeared by the annexed record of the said judgment to bind
assets.
And it is agreed that the verdict to be rendered in this cause
shall be subject to the opinion of the court whether the plaintiff
is entitled to recover in this action for so much of the assets
which the said deed purports to convey in trust, as has been
appropriated under the said decree in manner aforesaid, to satisfy
the said debt due to the said Robert Young, and discounted with the
plaintiff as aforesaid.
The judgment which was obtained by Robert Young, against John
Wise in his lifetime and William Yeaton, the defendant, is stated
in the case agreed to have been for the proper debt of the
defendant, for which John Wise was surety. This debt has never been
paid by the defendant, and was not paid by John Wise in his
lifetime.
After this judgment, William Yeaton became insolvent, and John
Wise sold his real estate in Alexandria and invested the proceeds
in bank stock in the name of Adam Lynn, the plaintiff, after which
he executed a declaration of trust in favor of his children and
grandchildren and departed this life, having first made his last
will and testament of which he appointed the plaintiff executor,
who took upon himself the execution thereof.
Page 30 U. S. 229
The chancery causes mentioned in the case agreed were instituted
in July, 1818, for the purpose of setting aside as fraudulent with
respect to creditors this deed to Adam Lynn the plaintiff, and for
obtaining payment of the debt due to the plaintiffs respectively
out of that fund. The court, in July, 1824, decreed that the deed
of trust be annulled and vacated so far as respects the
complainants, and that the said Adam Lynn do sell and dispose of so
much of the trust fund as will satisfy and pay to the complainants
their debt aforesaid with interest and costs. The case shows that
previous to this decree, on 24 of March, 1820, the plaintiff had
paid this judgment obtained by Young against Yeaton, with Wise as
his surety, and that he had sold a sufficient quantity of the stock
standing in his name to meet the claim, the proceeds of which sale
he held in his hands at the time the debt was paid to Young.
It is obvious that the debt due from Yeaton, the defendant, to
Young for which Wise was surety has been paid out of the estate of
Wise. Consequently that estate has an unquestionable claim on
Yeaton for the amount paid. The judgment rendered by the circuit
court in favor of Adam Lynn, who was both executor and trustee of
John Wise, is resisted on the ground that he has sued as executor,
though he paid the money either on his private account or as
trustee.
The bill in chancery on which all the proceedings between Wise
and Lynn were annulled, so far as respected this debt, and by the
decree on which Adam Lynn was directed to pay the sum due to Robert
Young, states that Lynn was both executor and trustee. The executor
and trustee were both necessary parties to the suit, and had they
been distinct persons must both have been brought before the court.
The two characters being united in the same person and that person
being directed to execute the decree, it would seem reasonable to
presume that he acted in the character in which he ought to perform
the particular act, especially if it be necessary to give the act
its full effect, and to make it rightful.
The trust property had been sold in anticipation of the decree,
and the money retained by the trustee and executor. When the
investment in the name of Lynn, and the declaration of trust, were
vacated and declared void so far as
Page 30 U. S. 230
respected this debt, the money into which the trust property had
been converted, and which remained in the hands of Wise's executor,
became a part of Wise's estate, and consequently were assets
subject to this debt. The payment of this money to Robert Young was
rightful if made by the executor, and being part of the funds of
the estate, ought to enure to the benefit of the estate. We think,
therefore, that the action is sustainable in the name of the
executor.
The form in which the question on the case is submitted to the
court strengthens this opinion. It assumes that the money for which
the suit was brought composed a part of the assets, and had been
appropriated under the decree of the court to satisfy the debt due
to Robert Young.
The plaintiff in error further contends that this judgment ought
to be reversed because the letters testamentary granted to Adam
Lynn were revoked by the Orphans' Court of Alexandria before it was
rendered.
The powers of he Orphans' Court of Alexandria are made by act of
Congress identical with the powers of an orphans' court under the
laws of Maryland. It is a court of limited jurisdiction, and is
authorized to revoke letters testamentary in two cases: a failure
to return an inventory or to account. The proceedings against Adam
Lynn were not founded on either of these omissions. A petition was
filed by his sureties stating their apprehension of loss from their
suretyship and praying that the proper measures might be taken for
their relief. The appropriate remedy given by the law in such case
is to require counter-security, and, on the failure of the executor
to give it, to take the estate out of his hands and place it in the
hands of his sureties. The statute forbids the judge to exercise
any implied power. On the failure of the executor in this case to
give counter-security, the judge, instead of making the order
prescribed by the act, revoked the letters testamentary. Some of
the judges are of opinion that the orphans' court transcended its
powers and that the judgment of revocation is void. It is
unnecessary to decide this point, because we are all of opinion
that as the issue tried by the jury was on the plea of
nonassumpsit, as the plaintiff was incontestably executor
when this suit was brought and when that issue was joined, and
could rightfully maintain this
Page 30 U. S. 231
action, as the revocation of the executorship was not brought
before the court by a plea since the last continuance, as it might
have been, the defendant is to be considered as waiving the defense
and resting his cause on the general issue. There is the more
reason for supposing that the defendant Yeaton made this election,
because a plea since the last continuance waives the issue
previously joined and puts the cause on that plea. It is also
remarkable that the case agreed states expressly that letters
testamentary were granted to Adam Lynn, but does not state the
revocation of those letters. The proceedings of the orphans' court
are referred to generally.
It is not doubted that this revocation might have been pleaded,
and we think it ought to have been pleaded, in order to bring the
fact judicially to the view of the circuit court. It ought to
appear upon the record that judgment was given against the
plaintiff in that court, because he was no longer executor of John
Wise, and not because the defendant was not indebted to the estate
of Wise, and had not made the assumpsit mentioned in the
declaration.
The rule is general that a plea in bar admits the ability of the
plaintiff to sue, and if the parties go to trial on that issue, the
presumption is reasonable that this admission continues.
In principle this case is not unlike a suit brought by an
administrator during the minority of the executor. His power as
administrator is determined when the executor has attained his full
age, and the fact that he has not attained his full age must be
averred in the declaration. But if this averment be omitted, and
the defendant pleads in bar, he admits the ability of the plaintiff
to sue, and the judgment is not void. 5 Com.Dig. title Plead. 2 D.
10, 267. The inference that he could not be permitted to give this
fact in evidence is very strong.
A distinction seems to be taken between an action brought by a
person who has no right to sue, and an action brought by a person
capable of suing at the time, but who becomes incapable while it is
depending. In the first case, the plaintiff may be nonsuited at the
trial; in the last, the disability must be pleaded. 1 Chitty on
Pleading 437, Am.Ed. 319; 4 T.R. 361; 3 T.R. 631.
The rule is that
"When matter of defense has arisen after the commencement of a
suit, it cannot be pleaded in bar of the
Page 30 U. S. 232
action generally, but must, when it has arisen before plea or
continuance, be pleaded as to the further maintenance of the suit,
and when it has arisen after issue joined,
puis darrein
continuance."
1 Chitty 635, Am.Ed. 456.
It may safely be affirmed that a fact which destroys the action,
if it cannot be pleaded in bar, cannot be given in evidence on a
plea in bar to which it has no relation. This is decided in 7 John.
194.
"If any matter of defense has arisen after an issue in fact, it
may be pleaded by the defendant, as that the plaintiff has given
him a release, . . . or in an action by an administrator, that the
plaintiff's letters of administration have been revoked."
In
Stonner v. Gibbons, Moore 871, an action of debt was
brought against an administrator, and pending the action, after
demurrer joined, the letters of administration were repealed. The
court refused to allow this matter to be pleaded after demurrer,
though it might after issue joined. The distinction between
allowing the plea after demurrer and after issue is not now
sustained, but certainly the defense could not have been received,
as the plea was disallowed.
Upon this point the Court is unanimous. We are all of opinion
that the revocation of the letters testamentary, not having been
pleaded, could not be given in evidence. The judgment is
Affirmed with costs and damages at the rate of six percent
per annum.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Alexandria and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be, and the same is hereby affirmed with costs and
damages at the rate of six percentum per annum.