Trapier v. Mitchell

Supreme Court of South Carolina

Trapier v. Mitchell

2 Nott & McC. 64, 11 S.C.L. 64

CourtSupreme Court of South Carolina

DecidedMay 15, 1819

StatusPublished

Cited by1 cases

This text of 2 Nott & McC. 64 (Trapier v. Mitchell) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trapier v. Mitchell, 2 Nott & McC. 64, 11 S.C.L. 64 (S.C. 1819).

Pincite

Opinion

The opinion of the Court was delivered by

RTott, J.

This question having been decided, and the practice of our Courts conformed to it, for the last fifteen years, it is necessary to quote authorities in support of the opinion now delivered. In the case of Reynolds v. Terrence,¹ decided, at Columbia, the *rule was laid down as I think the law is, when a person sues in the character of an executor or administrator, he must make profert of his letters testamentary, or of administration, as the case may be. If he fail to do so, the defendant may demur to the declaration. If he make profert, the defendant may crave oyer, and the letter must be produced for his inspection. He may then take any exception to them by pleading or otherwise that he may think proper. But if he then plead the general issue, he admits the plaintiff properly in Court; and he is not bound to produce his letters afterwards. Ex’ors v. Oldman Haywood’s Rep. 165. Berry’s Adm’r v. Pullman, Ib. 16.

The plea of ne unques Exor., is a plea to the disability of the plaintiff and does not go to the merits of the action. And when the regular order of pleading is conductive to the ends of justice, it ought not to be dispensed with.

The motion in this case must be refused.

Colcock, G-antt and RichaRDSON, JJ., concurred.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the Court was delivered by

RTott, J.

This question having been decided, and the practice of our Courts conformed to it, for the last fifteen years, it is necessary to quote authorities in support of the opinion now delivered. In the case of Reynolds v. Terrence,¹ decided, at Columbia, the *rule was laid down as I think the law is, when a person sues in the character of an executor or administrator, he must make profert of his letters testamentary, or of administration, as the case may be. If he fail to do so, the defendant may demur to the declaration. If he make profert, the defendant may crave oyer, and the letter must be produced for his inspection. He may then take any exception to them by pleading or otherwise that he may think proper. But if he then plead the general issue, he admits the plaintiff properly in Court; and he is not bound to produce his letters afterwards. Ex’ors v. Oldman Haywood’s Rep. 165. Berry’s Adm’r v. Pullman, Ib. 16.

The plea of ne unques Exor., is a plea to the disability of the plaintiff and does not go to the merits of the action. And when the regular order of pleading is conductive to the ends of justice, it ought not to be dispensed with.

The motion in this case must be refused.

Colcock, G-antt and RichaRDSON, JJ., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

2 Nott & McC. 64, 11 S.C.L. 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trapier-v-mitchell-sc-1819.

Opinion

Related

Cite This Page — Counsel Stack