Burgess v. State ( 1841 )

Archer, J.,

delivered the opinion of this court.

The pleadings in this cause put nothing in issue but the performance or non-performance of, by the administrator, of his duty as such : no issue whatever has been taken in relation to any one fact averred in the replication. The rejoinder is but the reiteration of the plea of performance, and is nothing more than the answer to the conclusion, which the plaintiff has drawn from the facts set out as a breach in the replication, so that the parties have gone to trial without the breach set out in the replication being in any manner answered or rejoined to.

We should have had but little difficulty in disposing of this case, but for the act of 1825, chap. 117; since that statute we can only look to the point decided.

The bill of exceptions, if strictly construed, would present the question, that the assignment must be first proved before the obligation assigned could be given in evidence; but the reason assigned shows that the point intended to be raised, was the question as to the admissibility of the obligation in evidence, without also having the proof of the assignment.

The action is entered for the use of G. S. Skinner, who in the replication is averred to be the assignee, and for whose use it is averred the suit was instituted. He could not certainly recover without showing himself entitled to the cause of action, by proof of the alleged assignment. But no question is raised on the right to recover without proof of the assignment; but simply whether the obligation is evidence without proof of the assignment. The breach alleges the existence of the obligation, the assignment, and the return of non est on the capias, against the administrator. These allegations furnish the foundation of the plaintiff’s right of action, and each should, when put in issue, be established ; each allegation may be separately proved, and if the plaintiff proye one without the others, no objection can be taken to the admissibility of the proof offered, for by offering it, he is but proving the allegation of the breach. The objection as we have before said, would lie not to the testimony, but to the right to recover, if the plaintiff stops with this proof, and offers no evidence of the assignment.

JUDGMENT AFFIRMED.