V. ecutor. Wilson man can take advantage of his own neglect. It was a Codman's Ex- matter of discretion with the court to admit the principal to appear and plead after the issue had been made up by the bail. It is to be presumed that the executor produced his letters testamentary, and that the court was satisfied when they admitted him to prosecute as plaintiff. If the defendant did not then pray oyer, it was his own neglect. He can only demand oyer at the term when the letters were produced. 5 Co. 74. b. Wymark's Case. But letters testamentary need not remain in court even during the whole of that term. 2 Salk. 497. Roberts v. Arthur. * 202 As to the demurrer, two causes are assigned. First, that the replication is a departure; and, second, that it does not traverse the matter of the plea. *1st. Unquestionably, if it is a departure, it is bad. But if it is the only fortification of the declaration against the plea, it must be good. Co. Litt. 304. a. The replication is not repugnant to, nor inconsistent with, the declaration. It is the same in substance with that in the case of Winch v. Keely, 1 T. R. 619. which was adjudged good on demurrer. 2d. It is said that the replication ought to have traversed the matter of the plea. What part could the plaintiff have traversed? The bankruptcy is impliedly admitted in the replication. WASHINGTON, J. Part of the objection is, that the replication does not confess the matter of the plea. Simms. That is not set down as a cause of demurrer, and it is but matter of form. But it is no cause for demurrer even if it had been specially shown. In a plea of the statute of limitations, the defendant does not confess that he ever promised at all. So in a replication to such a plea, that the plaintiff was out of the country, he does not confess that the five years have elapsed. So in pleading a release, it is not necessary to admit the execution of the bond, &c. an No authorities can be produced in support of such objection. As to payments of money, it appears from the account itself, that Wilson, after the notes became due, received more cash from A. and W. Ramsay than they received from him; and it is evident, that the cash transactions were mere matters of mutual accommodation, by loans of small sums for short periods of time. As to the first bill of exceptions, it is said, that the plaintiff ought to have produced his letters testamentary on the trial; and that a judgment, in this suit, would not be a bar to an action by the rightful executor. This we deny. In a suit brought by the name of John, it is not necessary on the trial of the general issue *to prove that the plaintiff was baptized by that name. So if the plaintiff sue, as executor, when he is only administrator, and no advantage taken by plea in abatement, it is not necessary, on the trial, to produce letters testamentary. The 3d and 4th bills of exception raise two questions. 1. Whether the assignment ought to have been proved, on the trial, to be for value received. 2. Whether the assignment on the note varies from that stated in the declaration. It is said, that the probata and the allegata must precisely agree. This is not the law. This is not the law. It is sufficient if they agree in substance. In an action of assault and battery, the declaration, alleging it to be done with sticks, staves and swords, is sufficiently supported by evidence that the defendant pulled the plaintiff's nose. So if the declaration allege that goods were sold and delivered at the request of the defendant, it is sufficient to prove that the defendant reluctantly received them at the solicitation of the plaintiff. It is only necessary to prove the material averments to be substantially true. The substance, in the present case, is the note and the assignment. The manner is totally immaterial. No form of assignment is prescribed by the act of assembly; and it is not necessary, under the act, to state the precise words of the assignment. If the assignment had been in consideration of a horse received, it would have been sufficient to have stated, generally, that it was for value received. The words without recourse do not imply without value, nor do they alter the effect of the assignment as it regards the defendant. The declaration does not pretend to set forth the assignment in hæc verba; and, therefore, the case from Wilson V. Codman's Ex ecutor. * 203 Wilson Doug. 665. does not apply. 2 Salk. 658. Holman v. Codman's Ex- Borough. Doug. 193. The King v. May. V. ecutor. * 204 * 205 *MARSHALL, Ch. J. Does not your defence rely on there being no value received? Simms. I contend not. I shall presently take the distinction. WASHINGTON, J. The departure is alleged upon that ground. Simms. A moral obligation on the part of A. & W. Ramsay is a sufficient consideration for the assignment. They were bound in honesty and good faith to assign, and that is sufficient to support the allegation of value received. The maker of the note has no right to inquire into the consideration which passed between the assignor and assignee. If the note had not been, from the first, held in trust for Codman, the defendant might have offset all his claims against the Ramsays, which were due before notice of the assignment. No offset against the trustee can be set up against cestui que trust. The authorities cited in Winch and Keely can be produced if the court should require it. MARSHALL, Ch. J. There is no necessity to produce authorities. There can be no question on that point. If the agent, appointed to collect a debt, is indebted to the debtor, the latter cannot offset, against the debt due from him to the principal, claims against the agent. It cannot be contested. No man ever thought that a person who employs an agent to collect his debts, by this agrees to take on his hands the debts owing by his agent to his debtors, instead of looking to the ori ginal debtors themselves, C. Lee, in reply. 1st. As to the letters testamentary. *The act of congress does not take away the necessity of giving notice to the other party. It does not essentially alter the law on that subject. By that law a Wilson V. ecutor. scire facias must have issued, and would have been returnable to the next term. One of the clauses of each Codman's Exact is in the same words. The act of congress is equally applicable to the death of plaintiffs and defendants. A scire facias must issue in both cases. And if it had issued, the defendant would have been in time. 2d. The plaintiff ought to have produced his letters testamentary at the trial, to support his title, on the issue of nil debet. This has been spoken to before. 3d. As to the demurrer. It is an answer to the case of Winch v. Keely, 1 T. Rep. 619. that in our case the demurrer is special, in the other it was general. It will also appear that in that case the facts of the pleas were expressly admitted in the replication. The demurrer there was for the purpose of bringing into consideration an important question of law. The 1st cause of demurrer assigned is, that the replication is a departure. It is only necessary to know what the declaration is. The expression, for value received, means value received by the defendant of the Ramsays, and by them of the plaintiff. The declaration states it to be Ramsay's debt; the replication alleges it to be Codman's debt. 4th. The variance between the declaration and the note offered in evidence is material. If they had produced a note assigned for value received, the plea of bankruptcy of the Ramsays would have been good. If they had proved their declaration, they would have defeated their action. It is admitted, however, that it would be a question of some doubt, whether the variance would be absolutely fatal if the action were on a *parol agreement, upon the authority of the note at the end of the case of Bristow v. Wright, Doug. 669. (3d edition,) which confines this strictness of pleading to records and written contracts. But the present action is upon a written contract, and, therefore, according to all the authorities, a misrecital is fatal. 5th. As to the bill of exceptions respecting the testimony, it is only necessary to read the prayer of the defendant to the court, (without intermixing the testi mony offered by the plaintiff, which only confuses the * 206 Wilson question,) to show the impropriety of the court's deciCodman's Ex- sion. V. ecutor. * 207 The amount of the prayer is, that the payments ought to be presumed to be made on the notes, unless it is proved that they were made for some other purpose, or on some other account; it having been proved that the Ramsays had no right to demand money from the defendant except on account of those notes. March 6. MARSHALL, Ch. J. delivered the opinion of the court. The first question which presents itself in this case is, was the defendant entitled to oyer of the letters testamentary at the term succeeding that at which the executor was admitted a plaintiff in the cause? It is contended, on the part of the defendant, that on the suggestion of the death of either plaintiff or defendant, a scire facias ought to issue, in order to bring in his representative; or, if a scire facias should not be required, yet, that the opposite party should have the same time to plead and make a proper defence as if such process had been actually sued. 99 66 The words of the act of congress do not seem to countenance this opinion. They contemplate the coming in of the executor as a voluntary act, and give the scire facias to bring him in, if it shall be necessary, and to enable the court "to render such judgment against the estate of the deceased party," as if the executor or administrator had voluntarily made himself a party to the suit." From the language of the act this may be done instanter. The opinion that it is to be done on motion, and that the party may immediately proceed to trial, derives strength from the provision, that the executor or administrator, so becoming a party, may have one continuance. This provision shows that the legislature supposed the circumstance of making the executor a party to the suit, to be no cause of delay. But as the executor might require time to inform himself of the proper defence, one continuance was allowed him for that purpose. The same reason not extending to the other party, the same indulgence is not ex tended to him. |