Cheatham v. Riddle , 12 Tex. 112 ( 1854 )

Wheeler, J.

The first objection urged to the judgment, raises the question whether it be necessary for the plaintiff, suing in his representative character, to adduce evidence of his right to sue in that character, when it is not put in issue by a special traverse or denial, or by a special plea. By the English Law, where the plaintiff sued as executor or administrator, for any cause of action accruing in the lifetime of his testator or intestate, and made proferí of his letters testamentary or of administration, if the defendant would controvert Ms representative character, by reason of any extrinsic matter, he must put it in issue by a plea in abatement, or, as it seems, by a plea in bar, and could not controvert it under the general issue, that being a conclusive admission of the character in which he sued. And as to those causes of action accruing subsequent to the decease of the testator or intestate, upon which he might sue either in his private or representative character at his election, as where the action was upon a personal contract made with himself respecting the property of the deceased, or was for a violation of his actual possession of the assets, as it was not necessary for the plaintiff to make profert of his letters of administration, he could not be put upon proof of his representative character. But, in other cases, where the cause of action accrued in his own time, upon which he must sue in his representative capacity, it was necessary for the plaintiff to prove his representative character, under the general issue, which raised the question of title. Where, however, the cause of action accrued in the lifetime of the testator or intestate, the defendant could not, at the trial, deny the title of the plaintiff as executor or administrator, unless by a plea of ne unques executor or ne unques administrator. For if the plaintiff alleged generally that he was administrator, and the defendant did not put him upon proof of it by craving oyer of the letters of administration, but pleaded over, he thereby admitted the title of the plaintiff as administrator as alleged in the declaration ; and was not allowed afterwards to controvert it. (1 Chit. Pl. 489; Williams on Executors, 1340, 1341; 2 Greenl. Ev. Sec. 338.)

But these useless distinctions have been abolished in England by the recent rules, (Reg. Gen. (Pleading) H. T. 4 W. IV.,) and now, in all actions by or against executors or administrators, the character in which the plaintiff sues or the defendant is sued, cannot in any case be considered as in issue, unless specially denied. (Williams on Executors, 1342, 2nd Am. from 2nd London Edit.) And it has been held in this country, that unless the plaintiff’s right to sue as executor or administrator is put in issue by the defendant’s plea, it will be deemed to have been admitted. (Notes to 1 Chit. Pl. 489.)

This rule is convenient in practice; and, it is conceived, is in consonance with principle, especially under our system of pleading, which requives such speciality in pleading as will apprise the adverse party of the matters of fact intended to be relied on in evidence. And the practice is believed to have been, not to require the plaintiff to prove his representative character, unless it was specially put in issue. The general denial has been understood as putting the plaintiff on proof of the facts which constitute the cause of action, but not the character in which he sued. And no reason is perceived for requiring the plaintiff to prove his representative character, unless it is controverted by the pleading of his adversary. In the great majority of cases, an opposite practice would devolve on the plaintiff an unnecessary burden of proof; for it will seldom happen in practice, that the defendant will controvert the plaintiff’s representative character, for the purpose of attaining the substantial right and justice of the case, or for any other purpose than to hinder and delay him in the prosecution of his rights. In every case where he desires to do so, it will be more just to the plaintiff, and more in accordance with the principles of our law procedure, to require him by pleading to give notice to the plaintiff of his intention, so as to apprize him of the necessity of coming prepared with the evidence to establish his right. It is but justice to the plaintiff that he should have notice of the defences, and surely it can operate no hardship upon the defendant. The present question has never been directly decided by this Court. But in an early case, (Aulanier v. The Governor, 1 Tex. E. 666,) the principle was determined, when it was said that “ when a good cause of action is shown and the ex- “ ception is only to the person of the plaintiff, it can only be “ sustained by a plea showing who is the person really enti- “ tied to be plaintiff.”

We conclude, therefore, that to entitle the plaintiff to recover in his representative character, there being nothing in the pleading of the defendant putting it specially in issue, it was not necessary for the former to adduce evidence of his right to sue in that character.

In the present case, the cause of action having accrued in the lifetime of the intestate, by no rule was it necessary, as it has been in some cases where the cause of action arose in the time of his legal representative,'for the plaintiff to prove his representative character. But we do not think it material whether the cause of action accrued in the lifetime of the intestate or subsequently, and do not rest our opinion on that distinction.

It is further insisted that, by the admission of the deceased, he was not to receive wages for his services, and consequently that the jury found contrary to the evidence.

It was for the jury to determine what weight was to be given to the statement of the witness. They were best qualified to judge, from the manner of giving the testimony and the attendant circumstances, whether the conversation detailed was in earnest or in jest; and whether the statement was not too unnatural and improbable to be entitled to credence. They were the judges of its credibility; and we see no reason to be dissatisfied with the verdict. The judgment is therefore affirmed.

Judgment affirmed.