Smith v. Ludlow

1 Ant. N.P. Cas. 174

Opinion

Spencer, J.

The plaintiff’s title is admitted by the course of pleading, he is not now bound to produce the letters of administration; had the defendants intended to question his title, they ought to have pleaded in abatement.

(1)

Anthon and Gfardenier, for plaintiff.

Ludlow and Emmet, for defendants.

In the case of Watson et ux. administrator, &c., v. King, (4 Camp. N. P. 212,) which was an action of trover, to which the defendant had plead not guilty. Topping, for the defendant, among other objections, insisted that the plaintiffs had not entitled themselves to sue as administrators, as they had not given the letters of administration in evidence, ©arrow then offered to put them in,'if it was thought necessary, but Lord Ellenborough held, that as there was a profart in curiam of the letters of administration, he must suppose that they gave sufficient evidence of the plaintiff’s representative character, until the contrary was proved. A new trial seems afterwards to have been moved for, on this ground, and refused. The point, however, came up fully in the case of Thyme v. Protheroe, (2 Maule & Selwyn, 653,) which was an action of assumpsit brought by administrators. Plea, non assumpsit: and the court held, that the plea admitted that plaintiff was administrator, and the defendant had no right to insist on the production of the letters of administration. Mansfield v. Marsh, (2 Lord Raymond, 824, and 1 Salk. 38, 3d Res., cited in Thyme v. Protheroe,) are to the same effect. So, in the case of Corsbie v. Oliver, (1 Starkie, 76,) which was an action of debt on bond brought by plaintiffs as assignees of a bankrupt. Plea, non est factum. IAttledale, for defendant, contended that it was incumbent on the plaintiffs to prove themselves assignees as stated in the declaration; but Lord Bllenborough held that the plaintiffs were not bound to show themselves assignees, upon the general principle, that a party who puts himself upon one issue admits all the rest. So, also, in the case of Carpenter and Rose, overseers of the poor, &c., v. Whitman et al., (15 Johns. 208,) it was held, that when 'overseers of the poor sue in that capacity, and are described as such in the proceedings, if the defendant pleads the general issue, the plaintiffs are not bound to prove that they are overseers: it is admitted by the plea.