Martha Ann Manly, Administratrix, and Hiram Manly, Administor in right of his Wife, of Samuel Parkhill Deceased, vs. The Union Bank of Florida, 1 Fla. 110

Hawkusts, Justice: The Court, in the case before it, have examined the record with care, and. will endeavor so to adjudicate upon it, as that the legal rights of parties, as they appear, may be adjusted in accordance with the rules of law, -pointing out those errors which may. appear, aVid sustaining the legal rights of the respective’ parties, when they are correctly and substantially' set out' and embodied in the pleadings.

The case has been so ably and elaborately argued; — the arguments of counsel so elucidated by-authorities — that the Court feels itself much relieved from the embarrassments .which might otherwise exist, as to the arrival at proper conclusions, and a correct decision of the cause. . -. To rebut, the first error, it is contended by the .appellee, that the defendant in the Court below, by putting in a plea of puis darrein continuance, waived and abandoned all former pleas.

There can be no doubt that, by the common law of England, and adhered to' in this country, a plea of puis darrein continuance, is always pleaded by way of substitution for the forpaerplea ;.and though not a departure from, is a waiver of it; and when it is pleaded, the case stands in the same state, as if the plea had been one originally put in. Stephen on PI. 66. Chitty on PL 697. 1¡ Archbold’s Practice, 20(0. ' The only cases cited by the, counsel for the appellant; which seem to have at all a conflicting bearing, are Rayner & Hope vs. Dyett, 2 Wendell R. 301; and Calver vs. Burney, 14 Wendell R. 162.

Nor have the Court, in its researches been able to find authorities at variance with the doctrines just laid down. The first case was, where the defendant obtained a discharge, of his person from imprisonfnent, under the act to abolish 'imprisonment for debt in certain cases — and this discharge he pleaded puis darrein continuance, after having pleaded in bar to the action. The plaintiff confessed the plea puis darrein continuance, proceeded and entered a rule for interlocutory judgment.

On motion to set aside the rule, Judge Sutherland, while admitting the general rule of waiver, said: “ This was not an admission of the plaintiff’s right of action, nor did it set up any new matter of defence to the action it only affected the remedy, not the rights of the plaintiffand that the pleas were not waived. In Calver vs. Burney, 14 Wendell, 162, the same Judge sustains the general doctrine, and while affirming the decision of Rayner & Hope vs.

Dyett, remarks: “ That the rule does not apply, where the matter of the plea affects the plaintiff’s remedy only, and not his right of action;” that the above case “ sought to modify the remedy, and not to defeat the action.” In the case before us, the plea is intended to go directly to the action itself; it is pleaded in bar, and partakes of a peremptory, and not a dilatory character; and the Court cannot view these two cases in the light of authorities, having a direct bearing upon, and application to the cause at bar. - The appellant’s counsel contend, that the statute of Florida destroys the old common law rule, as to the doctrine of waiver of the pleas originally pleaded, by the plea, puis darrein continuance, and cites the 26th

section of “An act to amend

an act regulating judicial proceed, ings,” approved Nov. 23, 1828, which is in these words : “ Sec. 26. Be it further enacted, That in all cases the defendant or defendants may plead as many matters of law or fact as he, she or they, may deem necessary to his, her or their defence; and it shall be no objection to any plea, that it.is contradictory to any other plea filed by the same party in the same cause.” Duval’s Com. 95.

If this question rested solely upon the common law doctrine, the Court would have no difficulty in deciding that the first error was not well assigned; but the statute above cited interposes, and overturns, as we think, the entire structure of the common law doctrine, as to the waiver of former pleas, by a plea puis darrein continuance.

The statute in its face, by its purview and spirit, seems evidently intended to abolish, to a certain extent, some of the rigid rules and technicalities incident to pleading at common law, to enable the defendant to avail himself of all and every possible defence, however contradictorily pleaded, which, by the old rules of , pleading, he was unable to do; and in fine, by the liberality and comprehensiveness of its terms, to effect the furtherance of justice.

A statute of this nature, however much in some instances we may deplore an innovation upon the common law, commends itself to the liberal construction of a Court, whose aim should be, at all times, the substantial justice of the case.

We look around us, and see the attempts of different States of the Union to simplify the science of pleading, so as to enable the parties litigant to set forth their respective claims and defences, irrespective of the rigid rules Of that science, and to infuse info it a spirit of liberality ; and while unquestionably they" admire the beauty and force of the fundamental reasons on which the science of pleading is founded, and the ingenuity with which its rules are carried o'ut, yet possibly, they may conceive, that,greater simplicity, may not be incompatible with the grave deductions of logic. . • - - The doctrine, as contended for byth,a appellee, took its-rise'ih the early stages of the law, and. we find( it,in the. oldest books. ' It has stood the-test of time, in all its.vigor, and has been carried out in. the Courts of England and this country-; and but. that we think it contravenes the true intent and spirit-qf our statute, we would feel loth to impugn its authority, or deny its. application.’ Originally, at-common law, there could regularly,be only ope' plea, on' which, if. there were issue or demurrer, the cause was to be determined, because there could be only one'verdict in a cause'; and though.th’e statute of Anne permitted several pleas, still they, were’to be in unison, sustaining and nof contradictory to eaóh othér,.

Multiplicity of pleading, was to be avoided, and the use of pleading was, to reduce the matters in pleading to a single point. In framing-them, there is.required-great care and nicety,; and it is said: “It seems dangerous to plead any matter puis darrein continu“ance, unless'you be well advised; because, if that matter be< deter- “ mined against you, it is a confession of the matter in issue, and no “nisi.prius shall be awarded.” -6 Bacon Ab. 479.

And should the plea puis be defective, and-.be-quashed, the judgment is at-once quod recuperet, and not respondeos ouster.- ■ ■ • If the object of the statute was 'to -simplify the rules of pleading and soften down the rigid; (and in this instance) the arbitrary dicta of the common law, where So proper an occasion for the attainment 'of the object, or the fulfilment of its'intentions,” as in a case where even at common law, more than usual severity is to. be observed. ?

Why should the statute operate unequally by the extension of its liberalizing policy to other cases, and this, in which most required, be exempt from its genial influence, .because not described in totidem verbis?

Although a doctrine relying for its support upon the hardships, which might arise under it, is at all times dangerous as tending to .destroy established precedents, yet construing the statute before us by an appropriate rule-of construction, a desire to suppress the mischief and advance the-remedy,-we can perceive many cases, where great hardships would inevitably arise, Persons at all times " may not be “ well advised” as to the pleading, and great injustice might be done by depriving a party of his legal defence pleaded in the first instance, because his plea of puis darrein continuance happened to be defective ; and why, if that plea is annulled, should not the party be remitted to his original defence ?

To all this it may be answered, that the law is different, and the maximfiat justicia should be followed, and that arguments ab inconvenienti should be avoided. We contend that the statute has altered the law ; we point to its spirit, its context, and we must look at the true, meaning of words. The statute says, that “ in dll cases,” the defendants may plead, &c. Is this phrase to be circumscribed by the meaning attached to it, by strict legal parlance, or is its true import to be gathered from the purview of the statute, and the true definition of its terms ?

The dictionaries tell us, that “ case” means or signifies, a contingence, a state of things, and if either of these synonyma was used in the statute, any and all doubt, would be dissipated.

The ample scope and free license to plead any number and contrariety of pleas granted by the Statute, have destroyed the reasons upon which the common law rule rests; and we can perceive no good cause when the reason of a law has ceased to exist, why the law itself should have a being, in direct conflict, as we think, with our statute, against the policy of our laws, and if persisted in, calculated to produce no good results, but rather consequences replete with hardship and extreme injustice ; and with the views expressed, we clearly are of opinion, that this rule of the common law, as to pleas puis dar-rein continuance, should cease to be regarded by the juridical tribunals of the State.

The first error is therefore well assigned. As to the plea pais darrein continuance, we think it well pleaded. It is contended that this plea should have been in abatement and not' in bar. We think that the defendant could have pleaded in either ; she could have pleaded in abatement, that she was not administra-trix of Samuel Parkhill deceased, but was administratrix de bonis non of said Parkhill, and there can be no doubt, but that she could plead ne ungues administratrix. The authorities are full upon -this subject.

To an’ action against an executor, he may plead in bar ne ungues executor, That be renounced, and nulla bona devenerunt ad manas; so he may plead in bar, the same bar as his testator could have done, as non assumpsit, or non est factum. 6 Comyn’s Digest, 2, D. 7, 8. So an administrator may plead in bar ne unques administrator. 6 Comyn’s dig. 2, D. 12. 1 Tidd, p. 644.

To an action against an administrator he may plead in abatement that he is not administrator, but executor, ib, 2, D. 12, page, 315 ; thus by analogy establishing the principle before asserted, that Martha Ann Manley might have pleaded jn abatement if she thought proper, that she was not administratrix, but administratrix de bonis non, and it is equally clear, that she could plead in bar ne tinques adminis-tratrix.

Pleas in bar are calculated to show either that the plaintiff never had any cause of action, or if he had, that it is discharged by subsequent matter. 1 Tidd, p. 643. “ Whenever the subject matter of the plea or defence is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed .cause of action, it may and usually must be pleaded in bar.” 1 Chitty on pleading, 481.

A plea in abatement must not only show the error to the plaintiff, but enable him to correct it by giving him materials for avoiding the same mistake in another-, suit in regard to the same cause of action, and give the plaintiff a better writ: ib.

The plea in bar in this case we think good, because the Union Bank could not at any time after the defendant’s dismissal from the first administratorship, have brought suit against her in the capacity of administratrix simply; that e. 6. instanti, the letters of administration were taken from her and annulled, she became as to the suit cemliter mortuus; and all the rights, powers, duties and liabilities, which had previously attached to her in the character of administra-trix ceased and no longer existed.

In Toler on Executors, 131, it is laid down where letters of administration are revoked, if an action be brought by an administrator, and while it is pending, administration is committed to another, the suit is abated. In the case of Taylor vs. Savage, 1 Howard U. S. R. 286, there was a decree in favor of Taylor against George M. Savage, the executor of Samuel Savage deceased: On the very day of the decree, George M. Savage was removed,from-his executorship, and one Benham appointed administrator de bonis non — the Court in that case said : “ By his.(George W.

Savage,) removal from the office of executor, he was as completely separated from the business of the executor, as if he had been dead, and had no right to appear in or be a party in this or any other Court, to a suit, which the law confided to the representative of the deceased.” No further proceedings could be therefore had in the decree of the District Court, until Ben-ham the administrator'tie bonis non was made a party.

The defendant in this cause could no doubt have come in voluntarily and made herself a party as administratrix de bonis non to the suit, by due and proper application to the Court, bút this she did not do. The case of Hunt vs. Wilkinson, 2 Call. 41, is cited by the appellant. It seems that a Mrs.

Hunt had been appointed a general administratrix of Charles Hunt deceased; that an office judgment was obtained.against her in that capacity; upon its being set aside, she was permitted to plead, that since the last continuance, the will of the said Charles Hunt had been committed to record, and that administration with the will annexed was committed to her, whereby she became bound to surrender her letters of administration granted to her before the appearance of the Will'; that she ought to bé sued as administratrix with the will annexed of Charles Hunt deceased, and not as administratrix ; Judge Carrington remarked: “ In this case, at the time of their office judgment, Mrs.

Hunt was defendant in her character of general administratrix ; but before the end of that term, that character had ceased, all her powers in that capacity were done away and destroyed by the production and proof of. the will; so that she was no longer general administratrix, but was then acting in a character correspondent to that of executrix, charged with the execu - tion of the will, instead of the statutory administration.

The plea was sustained as a good plea, and it was after two arguments, decided that an administratrix with the will annexed, must be sued in that character, and if sued as administratrix only, without the .addition of the words “ with the will annexed,” she may plead in abatement. This case so clearly in point, where the facts bear so close an affinity to those in the present- cause, its decision emanating front so high a source, and supported too by other authorities, entitles it to the most respectful consideration of this Court.

In this case a plea in abatement was pleaded and sustained, and the question as to plea in bar did not arise. That question arose for direct adjudication in the case of James Jewett vs. Betsey Jewett, administratrix of Caleb Jewett, 5 Mass. 276. This was an action against Betsey Jewett as administratrix; she pleaded in bar, with a protestando, (as in this case) that she had no effects, &c., of the intestate in-her hands to be administered ; that since the commencement of the action, she had been removed from the administration by the Judge of Probate, on the petition of James Jewett, the‘plaintiff.

It was contended on demurrer to this plea, that the plea should have been in abatement, being in the nature of a plea to the person. C. J.

Parsons, said, “in the case at bar, if the matter of the plea be good, it shows that the plaintiff has no cause of action against the defendant, either in this or any other suit; it is therefore properly pleaded in bar.” It is contended by the appellee that the defendant should have pleaded plene administravit, or that she handed over the assets to the new administrator, and should have retained sufficient to satisfy the plaintiff’s demand. , ■ The first objection as to the plea plene administravit cannot now receive consideration, as by the decision of the Court in the former part of this opinion, the plea not being waived, is still in full force and being, and undisposed of.

The law as laid down in 11 Yiner t Ab. 119, is in these words : “ the defendant being sued as administrator, pleaded, that before the day of the writ, his administration was removed and granted to another ; per Wild, he ought to have set forth that he had fully administered the goods in his hands, or else that he had delivered them over to the new administrator, for otherwise the debtor might be at a loss, for those goods shall not be assets in the hands of the new administrator till they come into his possession.” It is true, that the defendant did not plead plene administravit, in the plea jaws darrein continuance, or in a different plea, but she pleaded, that she was removed from the administration ; that by the order of the Court she was divested and put out of possession of all the estate, rights, credits and effects of Sam’l Parkhill, deceased, in her hands to be administered; that she was not allowed to retain, and did not retain in her hands sufficient to satisfy the plaintiff’s action, or any part thereof, but that the whole of them were placed by the order of the Court in the hands of its Marshal.

A plea plene administravit even if not in before, would perhaps have been considered superfluous, inasmuch as all the assets being taken out of her hands, there was nothing left to administer, and the replication admits, that all effects et cetera which were of Samuel Parkhill, deceased, at the time of his death, and which came to the hands of Martha Ann Parkhill to be administered, and which remained in her hands unadministered, when the same were by order of the said Superior Court, taken away from said Martha Anne as in the plea alledged.

It was impossible for the defendant to have retained assets as at common law, for the order of the Court was imperative, and an attempt to retain would have been idle and futile. This argument, coming from a party upon whose petition the order was made, does not appear with a very good grace.

Nor could she have pleaded, that she handed over the assets to the new administrator, for the plea would have been false; nor can we discern any impropriety in the plea pleaded, drawn as we think with sufficient legal correctness and nicety, setting forth a good and substantial defence by way of bar to the action, based upon facts which are admitted by the party plaintiff,' Could an execution have correctly issued on the judgment obtained against the defendant ?

It could not have been issued against the estate in the hands of Martha Ann Parkhill, the general admin-istratrix, because there was no such character in existence; nor against Martha Ann Parkhill, as administratrix de bonis.non, because the execution should have pursued the judgment stricily, otherwise it would be void; and the judgment here is against the said Martha, as the general administratrix. It is urged that a privity existed between Martha Manley as general administratrix, and Martha Manley, administratrix de bonis non.

That a certain privity at common law exists, it must be admitted— as between administrator and administrator de bonis non, or executor and administrator de bonis non, with the will annexed. There seems to bo a distinction as to this privity, in suits by or against administrators — in the former none existed, which probably gave rise to the statute of 17 Charles 2, C. 8, which enabled an administrator de bonis non to take out execution on a judgment of an executor or administrator. 8 Cowen 340. It was laid down by C. J.

Parsons, “ that an administrator de bonis non with the will annexed, could not sustain a writ of error to reverse a judgment recovered by the original executor, because there is in law no privity between an executor and administrator de bonis non, with the will annexedand a judgment recovered by the executor, cannot be executed by the succeeding administrator. Grant vs. Chamberlain, 4 Mass. 612. This was cited by the appellant. But the same Judge remarks, that the statute of Charles 2d is not in force in his State, and indicates that his decision would have been the reverse, if it had.

If judgment had been obtained against the defendant, and she had died, no doubt but that scire facias would 'lie against the administrator de bonis non. 8 Cowen 339, citing Norgate vs. Snap, (W. Jon. 214.) Admitting the doctrine of privity to the fullest extent, how does it avail in the present case ? The suit against Martha Manleys ‘ad-ministratrix, abated as completely by her removal, as if she had died ; and the suit should have been brought de novo, against her; in her new capacity of administratrix de bonis non. The two characters were incompatible, and could not exist together.

If the defendant had wasted the goods, she would have been .liable in an action of debt, in case the administration had been granted to another. 472 Wentworth on Exrs. — and besides, would be responsible to the new administrator.

The fact that the property and assets again came to her hands at the time of the plea pleaded, does not vary the result; for though identically the same person, yet legally viewed, Martha Manley, ad-ministratrix, and Martha Manley, administratrix de bonis non, are separate and distinct characters — appointed by different grants of administration, giving different securities, and not similar in any respect, save the duties and powers incident to the administration.

The sureties of the first administration were certainly discharged, after the dismissal of the defendant, as to all her acts posterior to that event; and the second sureties were not responsible for any of her acts previous to her second appointment. Another consideration is, that in case this suit should be sustained, the securities of the first administration would continue liable for the result of this suit, although the functions of the general administratrix had ceased, and who yet might be involved, if creditors were allowed to proceed upon the first administration.

The blending of the two characters would be attended with many perplexities and embarrassments, and in all probability, with great injustice. We will now confine our attention to the pleadings of the cause. “It is a rule in pleading, that oh demurrer, the Court will consider the whole record, and give judgment for the party who, on the whole, appears entitled to it.” . Stephens on Pleading, 144. And if the pleading be bad, judgment shall be had against him, who made the first default. 6 Comyn’s Digest, 183.

And it matters not, whether the issue be of law or fact, and whether the cause has proceeded to issue or not, the Court is always bound to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it on the whole appears. Stephens 144. The plea of puis darrein continuance, we have already decided, is good; and next follows the replication. We think this is clearly a departure from the declaration. That sets forth the cause of action, and declares against Martha Ann Parkhill, administratrix of the estate, real and personal, which was of Samuel Parkhill, deceased.

The replication sets out the order of the County Court, revoking and annulling the letters of administration to the said Martha Ann ; the appeal to Leon Superior Court by the said Martha Ann ; the affir-mance of the order of dismissal of the County Court by said Superior Court, and the delivery of the property of the estate of said Parkhill into the possession of the Marshal of the said Superior Court; that a receiver was duly appointed for said estate, till an administrator de bonis non was appointed by the County Court of Leon county; and that afterwards, on the twenty-second day of April, 1844, and before the filing of the said plea of the said defendants, Martha Ann and Hiram in this behalf, the County Court of Leon county did constitute and appoint the said Martha Ann, upon the petition of said Hiram and Martha Ann, an administratrix de bonis non of the estate of Samuel Parkhill, deceased.

The declaration is against her, in the capacity of administratrix simply; the replication, by setting forth the dismissal of the defendant as administratrix, and her appointment as administratrix de bonis non, is clearly a departure in pleading. It is inconsistent with the declaration, because the two capacities in which the defendant is charged, are, as has been already shown, inconsistent with each other — being in different rights, and distinct in every particular. It should fortify and maintain the matter in the declaration. It does not, and the allegation in that, and the replication, are in direct conflict.

The plaintiff, by his replication, has shewn that he has no action against the defendant, (by admitting her dismissal as adminis-tratrix ;) and when this is the case, there shall be judgment for the defendant, though the bar be defective, for the Court will judge on the whole record. 6 Comyn’s Dig. (E 37,) page 137. The rejoinder is not good — it is clearly a departure from the plea, and does not support it — it alledges neW matter inconsistent with the plea, and is defective. It is intended to answer the replication— they are both bad.

It is unnecessary to set forth the reasons or grounds of this opinion — ''and the Court must go back to the first error or default. ■ There were several grounds assumed by the counsel on either side, involving the discussion of principles of great interest and importance ; but the Court have deemed it proper to notice only those which seemed to have a direct bearing upon, and tended to a direct decision of the cause. The judgment must be reversed, with costs.