Griffith v. Fischli

4 Blackf. 427, 1837 Ind. LEXIS 80

• Court: Indiana Supreme Court
• Decided: December 9, 1837
• Status: Published

Opinion

Sullivan, J.

Debt by Griffith, administrator de bonis non of M. G. C. Wood, against Fischli, on two records of judgments rendered by a justice of the peace against Fischli. After setting out the records, the declaration avers, “ that on the - day of- in the year - at said county, the said Wood died intestate, leaving estate whereof administration de bonis non, afterwards, to wit, on the-day of -- at said county, was granted to the said Griffith, &c. Nevertheless the said Fischli did not, &c., but hitherto has wholly failed, neglected, and refused, to pay the said several sums of money either to the said Wood in his life-time, or to the said Griffith, administrator as aforesaid, at any time since, &c.” The defendant filed a plea professing to answer the whole declaration, but leaving unanswered a material part of it. The plaintiff replied to the plea, and the defendant demurred to the replication. Issue having been made on the demurrer, the Gourt decided .that the demurrer to, the replication was well taken, and final judgment was rendered against the plaintiff.

A. C. Griffith, for the plaintiff. H. P. Thornton, for the defendant.

It is not' now necessary to determine, whether the replication be good or bad. The plea, because in its commencement it professes to answer .more than it afterwards answers, and leaves a material part of the declaration unanswered, is defective. 1 Ch. Plead. 509, 510.—6 Johns. 63.—1 Blackf. 99

(1). The demurrer, however; requires us to look into all the pleadings filed in the cause, and to give judgment against the party whose pleading was first defective in substance.

The declaration in this record is substantially defective. The plaintiff sues as administrator de bonis non. An administrator de bonis non is one to whom administration afresh of the goods of a deceased person, not administered by a former executor or administrator, has been committed. The declaration omits to state who the executor or administrator of Wood was, to whom the present plaintiff -is successor, and omits to aver that the defendant did not pay the amount sued for, nor any part thereof, to said executor or administrator. It avers that the defendant did not pay the sums of money sued for, either to said Wood in his life-time, or to said Griffith at any time since. This may be true, and yet the defendant may have paid the debt to a person authorised by law to receive it, that is, to the predecessor of Griffith in the administration of Wood’s estate.

The total omission of a breach, or the defective statement of it,- so that thereby the contract does not appear to have been broken, is bad on general demurrer. It would, it seems, be bad. after verdict. Vide Hobart, 198, 233.—1 Sid. 440. Lunn v. Payne, 6 Taunt. 140.—Sicklemore v. Thissleton, 6 Maule & Selw. 9.—7 Price, 550.

Per Curiam.

The judgment is affirmed. To be certified, &c.

If a plea, professing to answer the whole declaration, in truth answers only a part, the plaintiff cannot sign judgment ior the part unanswered, but must demur. A judgment signed, in such ease, will be set aside on motion for irregularity. Wood v. Farr, Law and Eq. Rep. for 1839, p. 141. Vide also Weeks v. Peach, 1 Salk. 179.—Truscott v. Carpenter, 1 Ld. Raym. 231. For the practice, when the plea professes to answer only a part, and only answers such part, vide the cases supra. Steph. on Pl. 216, 217.