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Wilson

V.

ecutor.

use; in such case those payments of moneys may applied to the discharge of those two notes; unless the Codman's Exjury shall be satisfied by testimony, that the said defendant did make those payments, or any of them, for some other purpose or purposes, respectively.

"The plaintiff had offered to prove, by the testimony of Andrew Ramsay, that the payments or advances of money to him and William Ramsay, charged in the account offered by the defendant, William Wilson, in the words and figures following," [here was inserted an account current made out by the defendant against A. & W. Ramsay, containing, among others, sundry debits and credits of cash, subsequent to the time when the notes became payable, and before the bankruptcy of the Ramsays; by which it appeared that they had paid to the defendant, during that time, more cash than he had paid to them, without specific appropriation; but the balance of the whole account, (which commences in April, 1797, and continues to October 15, 1801,) was against the Ramsays to about the sum of 10,000 dollars,] were not made on account of the notes due to John Codman, or either of them, and that they were not received by the said A. & W. Ramsay on account of the said notes, or either of them; and had also offered in evidence two letters from the defendant, admitted to be in his hand-writing, in the words and figures following," [here were inserted two letters from the defendant to John Codman, the first dated 21st January, 1800, saying, that he had paid a small part of the notes to A. & W. Ramsay, and would gladly settle the remainder, if it was in his *power; the second is dated 25th February, 1800, offering to pay the notes in real estate or to give a mortgage,]" whereupon the court refused to give the instruction as prayed;" to which refusal the defendant excepted.

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The 3d bill of exceptions was to the opinion of the court, that it was necessary for the plaintiff to prove the assignment of the note, but that it was not necessary for him to prove that the same was made for value received, by the said A. & W. Ramsay from the said John Codman.

The 4th bill of exceptions was to the admission of the note and endorsement in evidence to the jury, the endorsement being in these words: "We assign this note

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Wilson

v.

Codman's Ex

ecutor.

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to John Codman, without recourse," and signed by A. & W. Ramsay, the payees of the note; inasmuch as the endorsement varied from that set forth in the declaration; the former being "without recourse," and the lat ter "for value received."

E. J. Lee, for the plaintiff in error, made the following points;

1st. That the defendant below was entitled to oyer of the letters testamentary at the time he demanded it.

2d. That the plaintiff was bound to produce them on the trial, upon the issue of nil debet.

3d. That the plaintiff was bound to prove the assignment to have been made for value received, according to the averment in the declaration.

4th. That the defendant below had a right, at any time, to apply the payments of money made to A. & W. Ramsay, to the account of the notes in question; the Ramsays being, at that time, personally his debtors, and having no right to demand of him money upon any other

account.

5th. That the replication to the second plea was bad upon special demurrer.

*1st. The executor was bound to produce his letters testamentary, and the defendant was entitled to oyer at any time.

In Virginia, if the plaintiff dies before office judgment, the suit abates, and the executor must proceed de novo. If the plaintiff dies after judgment, the executor must take out a scire facias, in which he must make a profert of his letters testamentary. When the scire facias issues, the cause goes to the rules, and the defendant has a month to plead. In the present case, the change of parties was made in court, and the defendant had not yet appeared; he had, therefore, time till the next term to appear and plead, and had then a right to demand oyer. 6 Mod. 134. Adams v. Savage. Idem, 142. Smith v. Harman. By the act of congress, vol. 1. p. 71. s. 31. a scire facias is to issue in case of the death of a party before judgment. The law of Virginia, Rev. Code, p. 117. s. 20. is nearly the same.

The act of congress does not do away the necessity of an executor's showing his letters testamentary, nor deprive the defendant of his right of oyer.

Wilson

V.

PATERSON, J. Under the act of congress do not the proceedings go on of old? Are there to be any pro- Codman's Exceedings de novo ?

E. J. Lee. There is no doubt that the executor must show his letters testamentary on admission to prosecute, and the defendant has a right to demand oyer at some time.

MARSHALL, Ch. J. The question is whether, under the act of congress, a scire facias is necessary.

WASHINGTON, J. There is another question, whether the defendant did not crave oyer in due time.

E. J. Lee, The plaintiff ought to produce hs letters testamentary at the time he is admitted, or when øyer is prayed, or at the trial, to support his title.

*MARSHALL, Ch. J. No doubt the defendant was entitled to oyer, but the question is, has he demanded it in proper time?

E. J. Lee. 3d. The plaintiff ought to have proved that the note was assigned for value received. The assignment on the note is expresed to be "without recourse." There was, therefore, a variance between the assignment on the note and that set forth in the declaration. The court, therefore, ought either to have prevented the assignment from being produced in evidence, or have compelled the plaintiff to prove it was really for value received. By thus admitting the assignment to go in evidence, they have prevented the defendant from his right to offset his payments to A. & W. Ramsay before the assignment.

If there be a variance between the evidence and the declaration it is fatal, how trivial soever it may be. If the plaintiff undertakes to recite an instrument, although he is not bound so to do, and misrecites it, he must fail. Thus, in trover for a debenture, the plaintiff must prove the number of the debenture as laid in the declaration, and the exact sum to a farthing, or he will be nonsuited. But he need not set out the number, (any more than the date of a bond for which trover is

ecutor.

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Wilson

brought,) for being out of possession, he may not know Codman's Ex. the number, and if he should mistake it would be a

F.

ecutor.

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failure of his suit. Buller's N. P. 37. So in the case of Bristow v. Wright, Doug. 665. it was held that in an action against the sheriff for taking goods without leaving a year's rent, the declaration need not state all the particulars of the demise; but if it does, and they are not proved as stated, there shall be a nonsuit.

MARSHALL, Ch. J. You consider the declaration as setting forth the endorsement in hæc verba.

E. J. Lee. I do.

MARSHALL, Ch. J. The only question upon this point is, whether the plaintiff has undertaken to set forth the endorsement in hæc verba; for if so, and there is a variance, there is no doubt it would be fatal.

*E. J. Lee 4th. The defendant below had a right to apply all the cash paid by him to A. & W. Ramsay, to the discharge of the notes. They had no right to say it was a gift or a loan, and they had no other right to demand money of him than for those notes. If the appropriation was not made at the time of the payment, yet it could not be applied to the single debt due.

5th. As to the demurrer. 1st. The declaration states the assignment to be for value received. The replication, instead of fortifying the declaration, states, that it was not for value received, which, being repugnant, is a departure in pleading. Thus, if the plea be conditions performed, and the rejoinder shows matter in excuse for not performing, it is a departure. 4 Bac. Abr. 123. Departure in Pleading, L. If a note is given to me as agent for another, it is not given to me for value received; 2d. There is no traverse, denial, or confession of the matter of the plea. 4 Bac. Abr. H. 70.

C. Lee, on the same side. If the plaintiff is not the true executor, a judgment in this suit would be no bar to an action by the rightful executor. Hence it is necessary that he should produce his letters testamenta

ry.

Wilson

V.

ecutor.

It does not appear that he ever produced them in the court below at any time. He ought to have Codman's Exbeen compelled to produce them at the trial, on the issue of nil debet, to support his title. The plea of nil debet put the plaintiff on the proof of every thing necessary to entitle him to recover. It has been considered as law in Virginia, that on that plea the defendant may give in evidence the statute of limitations, which he could not do on non assumpsit; because the latter plea is in the past tense, and the statute does not prove that he never promised. But the plea of nil debet is in the present tense, that he does not now owe, and, therefore, if the debt is barred by the statute, the plea is well supported. If an executor bring an action of assumpsit, the defendant pleads non assumpsit in manner and form as the plaintiff has declared, that is, he did not assume to pay to the testator in his lifetime. The plaintiff, in such case, is only bound to prove that the defendant promised to pay the testator, and his own title as executor does not come in question. But if an executor bring an action of debt, and the defendant *pleads nil debet, he says that he owes nothing to the present plaintiff, who sues as executor, and if the plaintiff be not the true executor, the plea is supported; the defendant, in truth, owes him nothing. Hence arises the difference between the necessity of producing letters testamentary in evidence on the trial in actions of assumpsit, and in those of debt on simple contract.

Simms, contra. In this case there was an office judgment against Wilson and his appearance bail. The bail came in and set aside the office judgment, by pleading for his principal (as he had a right to do under the act of assembly of Virginia,) in the lifetime of John Codman, and the issue was made up. Afterwards John Codman died, and Stephen Codman, his executor, appeared, and had leave to prosecute the action.

We differ from the opposite counsel as to the construction of the act of congress. They seem to think that the pleadings must be de novo.

But it is in the discretion of the court what pleas to admit after the issue had been made up.

It is said Wilson was not in court. But it was his own fault to suffer judgment to go against him. No

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