King v. Anthony

2 Blackf. 131, 1828 Ind. LEXIS 7

Opinion

Blackford, J.

Assumpsit by the administrator of Jonathan-Anthony, against Thornberry and his wife, administratrix, and King, administrator, of James Anthony. There is no return of the writ in the record, nor a suggestion, showing that any of the defendants had not been found.. King appeared and pleaded, first, ndn-assumpsit; secondly, the statute of limitations; thirdly, plene administravit. Issue was joined on the first plea. To the second, there were two replications: one, that the case was within an exception of the statute; the other,-denying the plea generally. Rejoinder and issue, as to the first replication; and an issue on the second. To the third plea, the plaintiff replied that the defendant had assets; and on that, issue was joined. The verdict was as follows: “We of the jury find for the plaintiff, and assess his damages at 1,000 dollars.” A motion for a new trial was made and overruled, and the following judgment rendered: “It is on motion considered by the Court, that the plaintiff recover the sum aforesaid by the jury assessed, with interest thereon till paid, together with costs, &c.”

Hall, for the plaintiff. Judah, for the defendant.

The judgment in this case being de bonis propriis, is erroneous. None of the pleas can be considered false within the defendant’s own knowledge, like that of ne unques executor, or a release to the defendant

Footnotes

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(1). As this is, however, only a clerical mistake, Short v. Coffin, 5 Burr. 2730, time would probably be given for its amendment in the Court below, were there no other error in the case (2). But the verdict is also erroneous. On the pleas of non-assumpsit by the intestate, and plene administravit by the administrator, the jury finding both issues for the plaintiff, should have not only assessed the damages for the not performing of the promises,1 but should have also found the amount of the assets in the hands of the administrator unadministered; the administrator being liable no further than for the assets in his hands: Fairfax's Executor v. Fairfax, 5 Cranch, 19.—Siglar, Admr. v. Haywood, 8 Wheat. 675.

The objection to the proceedings, on account of there being two replications to one of the pleas, comes too late. It is true, that the statute of Anne, authorising double pleading, does not extend to replications, 1 Chitt. Pl. 549; neither does ours, R. C. 1824, p. 292. But duplicity in pleading can only be taken advantage of by special demurrer; 1 Chitt. Pl. 513. In this case, the defendant rejoined to both the replications; and that-put an end to his right to the objection he now makes.

One of the defendants in this action appeared and pleaded, and the plaintiff proceeded against him alone. There is no return of the writ in the record, that the others had not been found, nor any suggestion of such return; both of which were necessary to warrant this proceeding. R. C. 1824, p. 290 (3).

Per Curiam.

The judgment is reversed, &c. Cause remanded, &c.

Vide note to Weathers v. Newman, Vol. 1. of these Rep. 233.

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Vide Songer v. Walker, Vol. 1. of these Rep. 251, and note.

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Vide Morris v. Knight, Vol. 1, of these Rep. 106, and note. R. C. 1831, p. 400.