Thomas v. Reister

3 Ind. 369 | Ind. | 1852

Perkins, J.

Augustus Igoe brought an action of debt against James Thomas, declaring that said Thomas, on the 10th day of June, 1835, at Baltimore, &c., to-wit, at, &c., made his promissory note to Nancy and Ruth Sampson, promising to pay them 200 dollars, one day after date; that, afterwards, on, &c., said Nancy died, leaving said Ruth surviving, and that, subsequently to the death of said Nancy, on, &c., at the county of Baltimore, state of Maryland, said Ruth departed this life; that, afterwards, on the 30th day of September, 1839, Jeremiah Rucker was, by the Orphans’ Court in said county of Baltimore, appointed administrator on said Ruth’s estate; that said administrator afterwards, on the 27th of May, 1847, indorsed said note to the plaintiff, &c., and that it was not paid, &c. Igoe died pending the suit, and James M. Reister, his administrator, became a party to and prosecuted it. The defendant, Thomas, appeared and pleaded: 1. The general issue; 2. That Ruth Sampson did not survive Nancy; and 3. That Rucker was not appointed administrator upon Ruth’s estate, tie also pleaded three additional pleas, each, in substance, alleging that Rucker had ceased to be administrator at the time of the assignment of the note in suit. These pleas last mentioned were not sworn to and were rejected on motion. Issues of fact were formed upon the other pleas, were submitted to the Court for trial, and a judgment was rendered for the plaintiff.

The evidence is upon the record. The plaintiff introduced a note and assignment corresponding with those alleged in the declaration. He proved that Ruth was the survivor in life of Nancy Sampson, and he gave in evidence the.following certificates:

The state of Maryland, Baltimore county, to-wit: The subscriber, register of wills for Baltimore county, doth hereby certify that it appears by the records in his office, that letters of administration of all the goods, chattels, credits, and personal estate of Ruth Sampson, deceased, were, on the 30th day of September, in the year of our Lord one thousand eight hundred and thirty-nine, granted and committed unto Jeremiah Ducker, who was then and there appointed administrator of the said deceased.

“In testimony whereof I hereunto subscribe my name and affix the seal of my office, this 6th day of July, in the year of our Lord eighteen hundred and forty-seven. [Seal]- Test: D. M. Ferine, register of wills for Baltimore county.

“Maryland, set.: I, Edward D. Kemp, presiding justice of the Orphans’ Court for Baltimore county, in the state aforesaid, do certify that the foregoing attestation of Daniel M. Perine, register of wills for said county, is in due form and by the proper officer. Given under my hand, at the city of Baltimore, this 6th day of July, in the year of our Lord one thousand eight hundred and forty-seven. E. D. Kemp."

To the introduction of all of which evidence, being all that was offered on the trial, the defendant objected generally, but the Court overruled the objection.

The plaintiff in error contends:

1. That the admininistrator did not possess the power, by virtue of his office, to assign the note in question. He is wrong in this. On the death of the holder of the legal title to a note or bill of exchange, the right of transfer vests in his executor or administrator. Chitty on Bills, 225.

2. He insists that the Court erred in sustaining the motion to set aside the pleas alleging the cessation of the power, if it once existed, of the administrator to assign the note. In this we think he is mistaken. Those pleas were special pleas of non-assignment and should been verified by oath. They alleged that the right administrator to assign had ceased before he ma: supposed assignment. If the allegation was tru legal assignment had been made. The case rese Allen v. Thaxter, 1 Blackf. 399. That was covenant a deed averred to have been executed by an attorne; fact. Plea, that the attorney was not authorized to exe cute the deed. It was held that this amounted to a plea of non est factum, and was bad for want of an affidavit of its truth. See, also, Hagar v. Mounts, 3 id. 57. But, if we are wrong in the above view, if those pleas were not pleas of non-assignment, that is, if the matter of defense set up by them was not necessarily brought forward by a plea, in effect, of non-assignment, then the matter was admissible and should have been offered under the general issue in disproof of the title of the plaintiff to, and right to sue on, said note; and hence, the plaintiff in error need not have been injured by the disposition made of said pleas, and cannot now complain of it ⁽¹⁾.

D. Kelso and A. C. Downey, for the plaintiff. J. W. Spencer, for the defendant.

3. It is urged that the Court should not have admitted in evidence the certificate of the register of wills of Baltimore county, Maryland, to the fact that Ducker was appointed administrator. We think that paper informal. Properly, the register should have copied the record-entry of Ducker’s appointment and certified it as a true copy. But we regard the paper as admitted in evidence without objection. This Court has repeatedly decided that a general objection to evidence, such as that made in this case, would not be noticed. Galbreath v. Doe, 8 Blackf. 366. That was the rule of practice when this cause was tried in the Circuit Court, and, we doubt not, it presents an instance where right is promoted by its application.

Per Curiam.

The judgment is affirmed, with 1 per cent. damages and costs.

(1) See Carter v. Thomas, ante, p. 213, and. note; Cheek et al. v. Glass, ante, p. 286; and Jones et al. v. Ransom, ante, p. 327.