Wilson v. Codman's Executor.

signee of a promissory note, made by the defendant, Wilson, to Andrew and William Ramsay. (a) The declaration was as follows, viz:

"John Codman, assignee of Andrew Ramsay and William Ramsay, complains of William Wilson, in custody, &c., of a plea that he render unto him the sum of $1038.80, which to him he owes, and from him unjustly deains, &c., for this, to wit, that whereas, the said defendant, on the 26th. day of June, 1799, at Alexandria, in the county aforesaid, by his certain note in writing, subscribed with his proper hand and name, and to the court now here produced, the date whereof, &c., did promise to pay to the said Andrew and William Ramsay, or order, forty-five days after date, $1038.80, for value received, negotiable in the bank of Alexandria; and the said Andrew and William Ramsay, afterwards, to wit, on the 23d day of October, in the year of our Lord 1802, at the county aforesaid, by their certain writing indorsed on the said note, and subscribed with their proper hands and names, assigned the said note to the said plaintiff, for value received, of which assignment the said defendant, afterwards, to wit, &c., had notice; by means whereof, and by force of the act of assembly of Virginia in such case made and provided, before the year 1801, action accrued," &c.

There was an office judgment against the defendant, and his appearance bail, *to set aside which, the latter pleaded nil debet for his principal, at June term 1803. At December term 1803, the suit was entered [*194

abated by the plaintiff's death. Afterwards, at the same term, on the motion of Stephen Codman, by his attorney, it was ordered, "that the said Stephen Codman, executor of John Codman, deceased, be made plaintiff in this suit, with leave to prosecute the same." At June term 1804, the defendant gave special bail, and "moved the court for a rule upon the plaintiff to grant oyer of his letters testamentary, to enable the defendant to answer the plaintiff, which was opposed by the plaintiff's attorney, and the motion was refused by the court;" whereupon, the defendant took a bill of exceptions.

The plea put in by the appearance bail, for the principal, was withdrawn, and the latter pleaded, 1st. Nil debet, upon which issue was joined: and 2d. That before the 23d day of October 1802, the time stated in the declaration, when A. & W. Ramsay are supposed to have assigned the said note to the said John Codman, the said A. & W. Ramsay had been declared bankrupts, &c., and on the day of March 1802, had duly obtained their final discharge, &c.

To this plea, the plaintiff replied, that on the 20th of June 1799, the defendant was justly indebted to John Codman, the testator, in the sum of $1038.80, and in consideration thereof, on that day, made and executed the promissory note in the declaration mentioned, for that sum, to A. & W. Ramsay, as the agents of, and in trust for the use of, the said John Codman, the testator; and concluded with a verification.

To this replication, the defendant demurred specially; 1st. Because it is a departure from, and is inconsistent with, the declaration, in this, that the declaration affirms that the said note was payable to Andrew and William Ramsay, for value received, and was by them assigned, for value received,

(a) An act of assembly of Virginia authorizes an assignee of a promissory note to maintain an action of debt, in his own name, against the maker of the note.

Wilson v. Codman's Executor.

to the said John Codman; and the replication affirms, that the said note was executed and delivered to the said A. & W. Ramsay, as the agents of, and in trust for the use of, the said John Codman: 2d. Because the plaintiff, in *195] his replication, ought to *have traversed the plea, and tendered an issue thereupon, and ought not to have replied the said special matter, and concluded with a verification: 3d. Because the said replication is informal and insufficient, &c. Upon this demurrer, the court below adjudged the issue in law for the plaintiff.

Upon the issue in fact, the jury found a verdict also for the plaintiff; and on the trial, four bills of exception were taken by the defendant. The 1st was to the refusal of the court to instruct the jury, that the plaintiff ought to produce in evidence his letters testamentary, to enable him to maintain the issue on his part.

The 2d bill of exceptions stated, "that the defendant produced testimony to the following facts, viz., that A. & W. Ramsay, on the 13th of August 1799, when the note in the declaration mentioned became due, were indebted to him, on their own account, in a large sum of money, to wit, in the sum of $8000, and continued indebted to him always thereafter, to that or a greater amount, until they became bankrupt, in November 1801. That they had taken the said note, for the use and benefit of John Codman, and not for their own, and were authorized, as his agents, to receive payment of the said note, for his use, from the date thereof, until the day of May 1800. That the said John Codman urged payment to be made; and during this period of time, sundry payments in money were made to the said A. & W. Ramsay, by the defendant, who, at the time of making such payments, did not mention any definite purpose or use for which they were made. That the said Andrew & William Ramsay, during the period aforesaid, viz., from the 13th of August 1799, to the time of their bankruptcy, had authority to receive no other debt from the said William Wilson, except the debt due on the note aforesaid, and on another note, for about the same sum, due for the use of said John Codman. And the defendant moved the court to direct the jury, that if they should be of opinion, that, at the times respectively, when William Wilson, the defendant, made payments in money to *Andrew & *196] William Ramsay, of sundry sums, after the note became due upon which this action is brought, they, the said A. & W. Ramsay, were indebted to him on their own account, always after the said note became due, to an amount exceeding $8000, and were not authorized, during the whole of the time, from the 13th August 1799, until their bankruptcy, to receive any other debt due from W. Wilson, the defendant, for the use of any other person, except the debt due on the note, which is the ground of this action, and another note for about the same sum, which they held as the agents of John Codman, and in trust for his use; in such case, those payments of moneys may be applied to the discharge of those two notes; unless the jury shall be satisfied by testimony, that the said defendant did make those payments, or any of them, for some other purpose or purposes respectively.

"The plaintiff had offered to prove, by the testimony of Andrew Ramsay, that the payments or advances of money to him and William Ramsay, charged in the account offered by the defendant, William Wilson, in the words and figures following :" [here was inserted an account-current made out by the defendant against A. & W. Ramsay, containing among others,

Wilson v. Codman's Executor.

sundry debits and credits of cash, subsequent to the time when the notes became payable, and before the bankruptcy of the Ramsays; by which it appeared, that they had paid to the defendant, during that time, more cash than he had paid to them, without specific appropriation; but the balance of the whole account (which commenced in April 1797, and continued to October 15th 1801) was against the Ramsays, to about the sum of $10,000] "were not made on account of the notes due to John Codman, or either of them, and that they were not received by the said A. & W. Ramsay on account of the said notes, or either of them; and had also offered in evidence two letters from the defendant, admitted to be in his handwriting, in the words and figures following:" [here were inserted two letters from the defendant to John Codman, the first dated 21st January 1800, saying, that he had paid a small part of the notes to A. & W. Ramsay, and would gladly settle the remainder, if it was in his *power; the second dated 25th February [*197 1800, offering to pay the notes in real estate or to give a mortgage] "whereupon, the court refused to give the instruction as prayed;" to which refusal the defendant excepted.

The 3d bill of exceptions was to the opinion of the court, that it was necessary for the plaintiff to prove the assignment of the note, but that it was not necessary for him to prove that the same was made for value received, by the said A. & W. Ramsay from the said John Codman.

The 4th bill of exceptions was to the admission of the note and indorsement in evidence to the jury, the indorsement being in these words: "We assign this note to John Codman, without recourse," and signed by A. & W. Ramsay, the payees of the note; inasmuch as the indorsement varied from that set forth in the declaration; the former being "without recourse," and the latter "for value received."

E. J. Lee, for the plaintiff in error, made the following points: 1st. That the defendant below was entitled to oyer of the letters testamentary at the time he demanded it. 2d. That the plaintiff was bound to produce them on the trial, upon the issue of nil debet. 3d. That the plaintiff was bound to prove the assignment to have been made for value received, according to the averment in the declaration. 4th. That the defendant below had a right, at any time, to apply the payments of money made to A. & W. Ramsay, to the account of the notes in question; the Ramsays being, at that time, personally his debtors, and having no right to demand of him money upon any other account. 5th. That the replication to the second plea was bad upon special demurrer.

*1st. The executor was bound to produce his letters testamentary, [*198 and the defendant was entitled to oyer, at any time. In Virginia, if the plaintiff dies before office judgment, the suit abates, and the executor must proceed de novo. If the plaintiff dies after judgment, the executor must take out a scire facias, in which he must make a profert of his letters testamentary. When the scire facias issues, the cause goes to the rules, and the defendant has a month to plead. In the present case, the change of parties was made in court, and the defendant had not yet appeared; he had, therefore, time until the next term to appear and plead, and had then a right to demand oyer. Adams v. Savage, 6 Mod. 134; Smith v. Harman, Ibid. 142. By the act of congress (1 U. S. Stat. 90, § 31), a scire facias is to issue

Wilson v. Codman's Executor.

in case of the death of a party before judgment. The law of Virginia (Rev. Code, p. 117, § 20) is nearly the same. The act of congress does not do away the necessity of an executor's showing his letters testamentary, nor deprive the defendant of his right of oyer.

PATERSON, J.-Under the act of congress, do not the proceedings go on of old? Are there to be any proceedings de novo?

E. J. Lee.-There is no doubt, that the executor must show his letters testamentary, on admission to prosecute, and the defendant has a right to demand oyer at some time.

MARSHALL, Ch. J.-The question is, whether, under the act of congress, a scire facias is necessary

?

WASHINGTON, J.-There is another question, whether the defendant did not crave oyer in due time?

E. J. Lee. The plaintiff ought to produce his letters testamentary, at the time he is admitted, or when oyer is prayed, or at the trial, to support his title.

*199]

*MARSHALL, Ch. J.-No doubt, the defendant was entitled to oyer, but the question is, has he demanded it in proper time?

E. J. Lee.-3d. The plaintiff ought to have proved that the note was assigned, for value received. The assignment on the note is expressed to be "without recourse." There was, therefore, a variance between the assignment on the note, and that set forth in the declaration. The court, therefore, ought either to have prevented the assignment from being produced in evidence, or have compelled the plaintiff to prove it was really for value received. By thus admitting the assignment to go in evidence, they have prevented the defendant from his right to set off his payments to A. & W. Ramsay, before the assignment.

If there be a variance between the evidence and the declaration, it is fatal, how trivial soever it may be. If the plaintiff undertakes to recite an instrument, although he is not bound so to do, and misrecites it, he must fail. Thus, in trover for a debenture, the plaintiff must prove the number of the debenture, as laid in the declaration, and the exact sum to a farthing, or he will be nonsuited But he need not set out the number (any more than the date of a bond for which trover is brought), for being out of possession, he may not know the number, and if he should mistake, it would be a failure of his suit. Buller's N. P. 37. So, in the case of Bristow v. Wright, Doug. 665, it was held, that in an action against the sheriff, for taking goods, without leaving a year's rent, the declaration need not state all the particulars of the demise; but if it does, and they are not proved as stated, there shall be a nonsuit.

MARSHALL, Ch. J.-You consider the declaration as setting forth the indorsement in hæc verba.

E. J. Lee.-I do.

MARSHALL, Ch. J.-The only question upon this point is, whether the

Wilson v. Codman's Executor.

plaintiff has undertaken to set forth the indorsement in hæc verba; for if so, and there is a variance, there is no doubt, it would be fatal.

*E. J. Lee.-4th. The defendant below had a right to apply all the [*200 cash paid by him to A. & W. Ramsay, to the discharge of the notes. They had no right to say it was a gift or a loan, and they had no other right to demand money of him, than for those notes. If the appropriation was not made, at the time of the payment, yet it could not be applied to the single debt due.

5th. As to the demurrer. 1st. The declaration states the assignment to be "for value received." The replication, instead of fortifying the declaration, states, that it was not for value received, which, being repugnant, is a departure in pleading. Thus, if the plea be conditions performed, and the rejoinder shows matter in excuse for not performing, it is a departure. 4 Bac. Abr. 123, Departure in Pleading, L. If a note is given to me, as agent for another, it is not given to me for value received. 2d. There is no traverse, denial or confession of the matter of the plea. 4 Bac. Abr. H. 70.

C. Lee, on the same side.-If the plaintiff is not the true executor, a judgment in this suit would be no bar to an action by the rightful executor. Hence, it is necessary, that he should produce his letters testamentary. It does not appear, that he ever produced them in the court below, at any time. He ought to have been compelled to produce them at the trial, on the issue of nil debet, to support his title. The plea of nil debet put the plaintiff on the proof of everything necessary to entitle him to recover. It has been considered as law in Virginia, that, on that plea, the defendant may give in evidence the statute of limitations, which he could not do on non assumpsit; because the latter plea is in the past tense, and the statute does not prove that he never promised. But the plea of nil debet is in the present tense, that he does not now owe, and therefore, if the debt is barred by the statute, the plea is well supported. If an executor bring an action of assumpsit, the defendant pleads non assumpsit in manner and form as the plaintiff has declared, that is, he did not assume to pay to the testator in his lifetime. The plaintiff, in such case, is only bound to prove that the defendant promised to pay the testator, and his own title as executor does not come in question. But if an executor bring an action of debt, and the defendant *pleads [*201 nil debet, he says, that he owes nothing to the present plaintiff, who sues as executor, and if the plaintiff be not the true executor, the plea is supported; the defendant, in truth, owes him nothing. Hence arises the difference, between the necessity of producing letters testamentary in evidence on the trial, in actions of assumpsit, and in those of debt on simple contract.

Simms, contrà. In this case, there was an office judgment against Wilson and his appearance bail. The bail came in and set aside the office judgment, by pleading for his principal (as he had a right to do, under the act of assembly of Virginia), in the lifetime of John Codman, and the issue was made up. Afterwards, John Codman died, and Stephen Codman, his executor, appeared, and had leave to prosecute the action.

We differ from the opposite counsel as to the construction of the act of congress. They seem to think, that the pleadings must be de novo. But it