Mitchell v. Woodward , 16 Del. 311 ( 1897 )

Lore, C. J.

(delivered the opinion of the Court).

The plaintiff declared as administrator, but did not plead letters of administration with a proferí. The declaration contained one count only, which was upon the note, in which the promises were laid to the intestate. The pleas were non assumpsit, payment, statute of limitations and set off. At the trial, the plaintiff offered in evidence a note, but did not produce the letters of administration or any proof thereof.

The counsel for the defendant moved for a. nonsuit on the ground that the plea of non assumpsit put in issue the character of the plaintiff as administrator, which must therefore be proved as averred in the narr, and cited Wilson vs. Vandyke, 2 Harring. 29 ; and also the uniform practice in this Court of proving the grant of letters in suits by administrators. No authority was produced to the contrary. A nonsuit was therefore granted. The plaintiff declined to accept the nonsuit; thereupon the jury, under the direction of the Court, rendered a verdict for the defendant.

The case now stands on a rule nisi for a new trial; upon the ground that as the promises in the declaration were laid to the intestate, under the plea of non assumpsit the character of the plaintiffs as administrators was not put in issue, but was admitted. This rule has been well argued both upon principle and authority.

The leading case, Thynne vs. Protheroe, 2 Maule & Selwyn 553, was an action of assumpsit by an administrator. The promise in the narr was laid to the intestate, with a profert of the letters of administration. The plea was non assumpsit. At the trial the letters were produced under a notice, and found to be on a stamp of too low a denomination to sustain the action; and for that reason under statutes 9 and 10 W. 3, could not be given in evidence. The plaintiff was nonsuited, for the reason that he had failed to prove his title as administrator. Under a rule nisi for a new trial, the Court by Lord Ellenborough, C. J., who sat in both hearings, said: “ That in this cause upon the general issue, the plaintiff had no occasion to produce the letters of administration at all, for the plea admitted that he was administrator and therefore the defendant had no right to insist upon their production. And if this could be done it would be the means of getting the benefit of ne unques administrator upon the general issue.”

Lord Ellenborough distinguished this case from Hunt vs. Stevens, 3 Taunton 113; because here the promises are laid in the intestate and there the administrator declared upon a conversion in his own time. The case at bar may be distinguished from that of Wilson vs. VanDyke, 3 Harring. 29, for like reason.

The case of Thynne vs. Protheroe differs from the case at bar-in this; that their letters of administration were properly pleaded with a profert, and the letters actually produced at the trial, but were not admitted in evidence; while here no profert was made. Letters of administration must be pleaded with a profert where the administrator is the plaintiff. 1 Chitty, PI. 366. But the omission of a profert when necessary, can only be taken advantage of by special demurrer. Id. 366; Brown vs. Copp, 5 N. H. 221; Bank of U. S. vs. Sill, 3 Conn. 111; Chaplain vs Chilley, 3 Day 303.

Pleading over waives the defect, and admits the character of plaintiff as administrator.

It is well settled that where the promises are laid to the intestate only, and not to the administrator, the plea of non assumpsit admits the character in which the plaintiff sues. 1 Saunders, Pl. & Ev. 496; 1 Chitty, Pl. 489; McKim et al. Executors vs. Riddle,. 2 Dallas 100; Way vs. Swift, 12 Vt. 390; Lloyd vs. Finlayson, 2 Esp. 564.

The reason seems to be, that as non assumpsit puts in issue only matters that tend to deny the debt or liability that when the-debt or liability is to the intestate, and so laid in the declaration, the plaintiff’s character as administrator is not at issue, and can only be put in issue by special traverse.

With this view of the law we are constrained to make the rule absolute, set aside the verdict and grant a new trial, and so-order.

At the second trial, Whiteman, for the defendant, stated that the defence was the statute of limitations, claiming that the date of' the note had been altered to bring it within the statute.

Elwood Woodward, one of the defendants, being called to the witness stand, was handed the note and asked: “ Does that paper bear the same date now that it bore the day you affixed your signature to it ?

JNields objected to the question on the ground that as it was a contract and transaction with the deceased, another witness was incompetent to testify under the statute.

Whiteman. The statute does not disqualify the witness, it only limits his competency to matters outside of transactions with the deceased. The alteration is not a part of any transaction with him. It is a substantial fact in the knowledge of the defendant with, which the defendant had nothing to do. Page et al. vs. Danaher et al., 43 Wis. 221; Trimble Adm’r. vs. Mirns, 92 Ga. 103.

The objection was sustained.

Verdict for the plaintiff.