CUMMINGS VS EDMUNSON, adm'r, de bonis non, 5 Port. 145

GOLDTHWAITE, J. A verdict was returned by the jury, which tried this cause, for a sum less than fifty dollars, and a judgment was rendered for the sum found to be due. It is now insisted that the Court below, instead of rendering such judgment, should have non-suited the plaintiff. The previous decisions of this Court, on the statute of eighteen hundred and seven, have not been altogether consistent with each other, and we have now to decide, what we believe to be its just and and proper construction.

The enacting clause directs — “If any suit shall be commenced in any Court, for a less sum than such Court can legally take cognizance of, or if any person shall demand a greater sum than is due, on purpose to evade this act, in either case, the plaintiff shall he non-suited’and pay costs.” Under the proviso of the statute, a plaintiff may prevent the operation of the latter part of the enacting clause, by making and filing in the clerks office, an affidavit, that the sum for which the suit is brought, is really due, but for want of proof, &c. a recovery is barred.

This contemplates two distinct classes of cases, in one of which the Court, trying the cause, has no discretion, but must non-suit the plaintiff; but in the other, it is not made obligatory so to proceed, unless it shall appear, that a sum is demanded beyond what is due, on purpose to evade the act. The terms used in the statute, can we think, bear no .other proper construction.

The Court trying the cause, would be enabled to judge from all the circumstances, whether the suit was instituted, for the purpose of giving a collusive jurisdiction; but an appellate tribunal could never ascertain, with any certainty, the intention, which influenced the plaintiff. Again, a suit might be commenced b.ona fide, and a verdict, notwithstanding, be found for a less sum than the suit should have been instituted for, with .a reference to the jurisdiction; or the amount might be reduced by payments, which could in some cases, be given in evidence under the general issue.

The act certainly guards the plaintiff from any injury from an improper exercise of the discretion reposed in the Court, by permitting him in cases, where an opinion prevails that he has improperly used the jurisdiction of the Court, to avoid the consequences, by malting the requisite affidavit; and we do not hesitate to say that it would be error to render a judgment of non-suit, when such affidavit was interposed; but in all other cases under the latter clause of the statute, the action of the Court being discretionary, and to be governed by circumstances, cannot be the subject of revision here.

We are aware that this view of the statute, consome previous decisions of the Court. Howard vs Wear, — Curtis vs Gary — Carter vs Dade : But we feel it to be our duty to place the construction on principles which we think are consonant with the intention of the framers of the act. Another question which arises in this case, is in relation to the decision of the Court below, of the plaintiff’s demurrer to the truth of the plea of the defendant.

This plea is evidently bad, for the reason that it assumes to answer the whole of the plaintiff's declaration, when in truth, it only answers a part; this is established by the commencement and conclusion. It commences actio non &e. and concludes with a prayer for judgment; but this demurrer exercises a most important influence on the case, if as contended, it opens the whole case for consideration; and judgment must be given for the defendant, if the declaration shall be proved to be vicious.

This rule of pleading seems to be established by an unhroken series of English decisions, from the time of Lord Coke, and has received full assent in most of the States of the Union: and such also * has been the uniform practice of this Court from its organization — Mullins vs Cabbiness — Summer ville vs Merrell —Rogers et al vs Smiley et al. The only' exception to this rule seems to be the case of a demurrer to a plea in abatement.

It is urged against the declaration, that no averment of the death of the administrator in chief, is to be found in any part of it, and the inference is drawn, that no title to sue is shewn by the plaintiff. We find on examination that no statement of the death of the administratrix in chief, is contained in the declaration; nor does it in any wise appear, that she was removed from the administration in the estate of the intestate.

The plaintiff in the cause below, can only be entitled to sue on the claim which is the foundation of this suit, by virtue of his representative character’, and we are unable to perceive any distinction, so far as the necessity of allegation exists, between his and any other case of a derivative title.

An executor or administrator, must show in pleading the death of the testator or intestate, although it may not be necessary to prove it on the general issue; a surviving co-partner must set out the death of his partner; a joint obligor, who sues alone, must set out the death of his co-obligors—and in the case we are now considering, we cannot perceive why the same reason does not prevail, when the suit is by an administrator de bonis non. He claims title under the administration, and if the administrator in chief be not dead, he can have no title, whatever.

He may be termed an assignee by operation of law, and there can be no good reason urged, why he should not be obliged to state the sole fact from which his authority as administrator de bonis non, is to he be derived, We have not been able to ascertain if this question has ever before been presented to any Court, but all the precedents sustain the principles we have laid down, and we have no reason to doubt the justice of their application to this particular case.

Another objection grows out of this position.— From nothing alledged in the declaration does it appear, that the title to the writing obligatory, sued on, is not now in Parthena Dean, or in her husband, in her right. If she be living, she, or her husband, in her right, has the legal title to the instrument sued on, unless she has been removed from the administration, which does not appear, and cannot be presumed on demurrer. Another objection yet remains to be considered.

The writing obligatory declared on, bears date in eighteen hundred and twenty-one, and is payable to the administrators of the estate of William Edmun-son, jun’r. Who were then the administrators, in no wise appears, nor is there any averment, that the writing obligatory, was made to Parthena Dean and her husband, or either of them, by that name and description; nor does the declaration alledge that they or either of them, were then the representatives of the estate.

Again, the liability of the defendant is alleged to be, to pay the administrators of the estate of the decedent; thus seeming to attach the liability of the defendant to the office, and not to the person of the administrator. The declaration cannot therefore be supported, and we reluctantly pronounce it to be bad.

We say reluctantly, because we think it probable that these objections have been taken for the first time, in this Court, and, because the very same questions, which we now decide, formed a part of the many issues submitted to the jury.- By the third plea, the question of title to- the note, is directly put in issue; and by the sixth, the right to sue as administrator de lords non, is controverted, But as the determination of the demurrer, must have preceded the trial of these issues, and as we must presume from the effect of the demurrer; that the questions we have noticed, were presented and decided against him in the Court below, the defendant did not go to trial voluntarily, and consequently cannot be presumed to have waived his demurrer.

We are of opinion that the judgment must be' revei’sed; and as the defendant in error can be permitted to amend his declaration in the Court below,, the cause is remanded, COLLIER, J; not sitting. Aikin’s Dig. 269, Minor’s R. 84. Ib. 118. 1 Stew. 18. 1 Saun. 219 n 7, 1 Chitty Plead. 663 n. 1. Gould Ple. 474 Minor 21 1 Porter 109. 2 Porter, 261. 1 Sand. 285—n. 5 2 Chitty P. 104. Aikin’s Dig. 29S,