U.S. Supreme Court
Yeaton v. Lynn, 30 U.S. 5 Pet. 224 224 (1831)
Yeaton v. Lynn
30 U.S. (5 Pet.) 224
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. chanrobles.com-red
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. chanrobles.com-red