Fowler v. Sharp

15 Johns. 323

• Court: New York Supreme Court
• Decided: August 15, 1818
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. If the plea in substance alleges that the defendant had not, at the time of the plea pleaded, nor at the commencement of the suit, or any time since, had any goods, &c. in his hands, as executor, to be administered, it would seem to be a good plea. The precedents are, that the executor has fully administered, in addition to the allegations of the plea under consideration. Serjeant Williams is of opinion that the words, “ that they have fully administered the goods,” &c. seem to be superfluous, and that the more formal and correct way of pleading appears to be according to the present plea. (2 Saund. 221. note 3.) And although Chitty gives the form of the plea, as the plaintiff’s counsel contend it should be, yet the form of the replication, as given by him, takes issue on the defendant’s having assets in his hands to he administered, on the day of exhibiting the bill; and this shows that the natural and essential part of the plea is the possession of unadministered assets.

I cannot perceive that the omission to state, that the defendant has fully administered, is either a formal or substantial omission, and I consider the plea good without that allegation.

The case of Hewlet v. Framingham, (3 Lev. 28.) confirms my opinion ; for, in that case, the court held the plea to be bad, because it omitted to allege that the defendant had no goods or chattels of the testator, and that he had not on the day of suing out the writ, or at any time after, on the ground that the plea of plene administravit merely related to the time of the plea pleaded, and because the defendant might have paid debts upon simple contract without suit after the writ purchased, and before plea.

(a)

The only difficulty I feel in this case relates to that part Q£ j.¡le pjea which states, that on the day of the plaintiff’s exhibiting his bill, the defendant had no goods or chattels, &c. If this refers to the filing the declaration, I should hold the plea to be bad. The cases which bear on this-point are Carpenter v. Butterfield. (3 Johns. Cases, 145.) Lowry v. Lawrence, (1 Caines, 70.) and Bird, Savage, and others, v. Caritat, 2 Johns. Rep. 342.) These cases abundantly establish the point, that the suing out the writ is the commencement of the suit, and that the exhibition of the bill, which the modern English authorities consider as the commencement of the suit, is not so with us.(b)

It is, however, very usual in practice to refer in pleading to the exhibition of the bill as equivalent to saying, the commencement of the suit, and I should be inclined to consider it, unless specially demurred to, as tantamount to saying the commencement of the suit, or suing out the plaintiffs writ, and to hold the party to proof accordingly. On the whole, we are of opinion that judgment must be entered for the defendants, with leave to plaintiff to amend on payment of costs.

Judgment for the defendants.

In Platt v. Robins and Swartwout, (1 Johns. Cases, 276.) it is said that the plea of plene administravit is an affirmative plea, and that the onus probandi lies on the defendant. The above being a negative plea, throws the burden of proof on the plaintiff.

The words, on the day of exhibiting the bill of the said A. are used only when the suit is in the court of K. B. and by bill, as it is called, which is peculiar to that court, referring to the plaint or original bill filed, or supposed to be filed, by the plaintiff, on which the process to bring in the defendant is founded : but where the suit is by original writ, or in the court of C. P. the proper words of the plea are “ at the time of the commencement of the suit.” Those English authorities, therefore, which confound the original bill in K. B. with the declaration filed after the return of process, or the bill in particular cases, as against attorneys, prisoners, &c. cannot be correct. (Vide 3 Johns. Cases, 150. per Radcliff, J. 1 Sellon Pr. 28. 36.)