{ "id": 8728730, "name": "Gov. for use of Lyon, Adm. against Lewis Evans and others", "name_abbreviation": "Gov. ex rel. Lyon v. Evans", "decision_date": "1839-01", "docket_number": "", "first_page": "349", "last_page": "375", "citations": [ { "type": "official", "cite": "1 Ark. 349" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "3 Lit. 9", "category": "reporters:state", "reporter": "Litt.", "opinion_index": -1 }, { "cite": "2 J. J. Marsh., 540", "category": "reporters:state", "reporter": "J.J. Marsh.", "case_ids": [ 8521773 ], "opinion_index": -1, "case_paths": [ "/ky/25/0540-01" ] }, { "cite": "2 Bibb, 22", "category": "reporters:state", "reporter": "Bibb", "opinion_index": -1 }, { "cite": "1 Bibb, 412", "category": "reporters:state", "reporter": "Bibb", "case_ids": [ 6686765 ], "opinion_index": -1, "case_paths": [ "/ky/4/0412-01" ] }, { "cite": "2 Marsh. 44", "category": "reporters:state", "reporter": "Marsh.", "opinion_index": -1 }, { "cite": "1 Bibb, 340", "category": "reporters:state", "reporter": "Bibb", "opinion_index": -1 }, { "cite": "4 Mon. 42", "category": "reporters:state", "reporter": "Mon.", "opinion_index": -1 }, { "cite": "15 Wend. 102", "category": "reporters:state", "reporter": "Wend.", "opinion_index": 0 }, { "cite": "2 Call, 379", "category": "reporters:state", "reporter": "Call", "case_ids": [ 6716147 ], "opinion_index": 0, "case_paths": [ "/va/6/0347-02" ] }, { "cite": "1 Call, 567", "category": "reporters:state", "reporter": "Call", "case_ids": [ 2094978 ], "opinion_index": 0, "case_paths": [ "/va/5/0205-01" ] }, { "cite": "3 Pick. 124", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2010358 ], "opinion_index": 0, "case_paths": [ "/mass/20/0124-01" ] }, { "cite": "4 Lit. 275", "category": "reporters:state", "reporter": "Litt.", "case_ids": [ 6807488 ], "opinion_index": 0, "case_paths": [ "/ky/14/0275-01" ] }, { "cite": "2 Pick. 614", "category": "reporters:state", "reporter": "Pick.", "opinion_index": 0 }, { "cite": "4 Bibb, 346", "category": "reporters:state", "reporter": "Bibb", "case_ids": [ 6411477 ], "opinion_index": 0, "case_paths": [ "/ky/7/0346-01" ] }, { "cite": "9 Pick. 432", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2058509 ], "opinion_index": 0, "case_paths": [ "/mass/26/0439-01" ] }, { "cite": "11 Mass. 327", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2053491 ], "opinion_index": 0, "case_paths": [ "/mass/11/0299-01" ] }, { "cite": "9 W. 3", "category": "reporters:state", "reporter": "W.", "opinion_index": 0 } ], "analysis": { "cardinality": 2010, "char_count": 77681, "ocr_confidence": 0.425, "pagerank": { "raw": 4.023497704524795e-07, "percentile": 0.9067242916478915 }, "sha256": "f20ccfc68f410a8d3281c0cd443931a1137bc354a407f7fac031922b8a98cea4", "simhash": "1:ba7ecda18667ee90", "word_count": 13812 }, "last_updated": "2023-07-14T20:13:03.293086+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gov. for use of Lyon, Adm. against Lewis Evans and others." ], "opinions": [ { "text": "Ringo, Chief Justice,\ndelivered the opinion of the court:\nThis is an action of debt commenced by the plaintiff against the defendants in error, in the Circuit Court of Washington county, found-e(j on the official bond of the defendant Evans, as sheriff of said county. The plaintiff in his declaration set forth the bond and the condition thereof in haec verba, and assigned three several breaches of the con-dilion: The 1st charges the escape of one George Robinson, out of cusj;0\u00bfy 0f said Evans, as sheriff of Washington county, in the lifetime of said Hancock, after he had been arrested and held in his custody on a capias ad respondendum issued at the suit of said Hancock, for a subsisting demand for $3000, and only endorsed for bail in that sum.\nThe 2nd also charges the escape of one George Robinson, out of thf custody of said Evans, as sheriff of Washington couilty, after the death of said Hancock, and after he had been arrested and held in his custody, in the lifetime of said Hancock, on a capias ad responden-dum, issued at his suit for a debt of $250, and duly endorsed/or bail', in the sum of $>300, and avers the same to have been to the injury of Sf\u00e1d Aaron W. Lyon, as administrator as .aforesaid..\nAnd the 3rd alleges the escape of one George Robinson, out of the custody of said Evans, as sheriff of Washington county, after he had arrested aid taken his body in execution, and held him in his custody, in execution, Ujon, and by virtue of an execution, duly issued upon a judgment of the Circuit Court of said county, in favor of A. W. Lyon, administrator of the estate of Peter Hancock, deceased, against the said George Robinson, for a debt of $271, and $36 64-100 costs \u2014 ' the said dejitand costs beiw wholly unsatisfied to the said A. W. Lyon, administrator as aforesaid.\nThe declaration also- contains\u00ab general breach as follows: \u201c[.Yet the said defendants, although often requited to do so, hath not yet paid the said sum of six thousand dollars, above demanded, or any part thereof\u2019 to the said Peter Hancock in his lifetime. 0r to A. W. Lyon, administrator of said Peter since his death, to whou letters of administration were granted by the county court of Pope couni-j, a. t. in due form of law, which letters of administration bear date the Igjfo day of October, 1830, and now here to the court shown, the dat* wher.eof is the day and year aforesaid; but hath hitherto wholly neglected and iefused so to do, and still doth neglect and refuse to pay the same,or any part thereof to the plaintiff, to the damages of the said plaintiff, oKe thousand dollars, and therefore suit is brought, &c.\u201d\nAt the return term ail of the defendants named in the declaration, (except Estes who was not served withjhe process to appear,) appeared, and moved the court to dismiss the suit, and to quash the writ, for a variance between it and the declaration, which motion being sustained by the court, was afterwards set aside, on the application of the plaiu-tiff, and the case reinstated \u201c on the docket:\u201d whereupon the defend-a a\u00f1ts craved oyer of the writing obligatory declared on, and also of the letters of administration set forth in the declaration, but without \u2022oyer having been either granted or refused, filed several pleas, to wit:\nFirst, \u201cThat the said Aaron W. Lyon never has been the legal administrator of the goods or chatties, rights or credits, which were of the said Peter Hancock, deceased, in manner, &c.,\u201d commencing and concluding in bar of the action.\nSecond, \u201cThat the said Louis Evans, sheriff, as aforesaid, did not permit the said George Robinson to go at large, and escape from his custody in manner,\u201d &c.\nThird, \u201cThat the said Lewis Evans, sheriff, as aforesaid, did not take the said George Robinson in execution in manner and form as set forth in the plaintiff's declaration.\u201d\nFourth, \u201cnul tiel record of the recovery in favor of said Lyon, administrator as aforesaid, against said George Robinson, in manner and form, &c.\u201d\nThe first, second, and third of said pleas appear to have been filed together, at the return term of said writ, on the 18th day of June, 1835; but it does not appear from the record at what time the said fourth plea was filed.\nIn the record of the proceedings of said term is the following entry: \u201cAnd now on this day came the parties by their attorneys, and the plaintiff demurs to the first and second pleas filed by the defendant,, to which the defendant joins issue, and the matters of law arising on said demurrer being argued, it seems to the court that the law is for the plaintiff; thorefore, it is considered that the said demurrer be sustained as to the first plea, and overruled as to the second plea.\u201d\nIt also appears that the said first plea to which the demurrer was sustained, was then amended in the commencement and conclusion thereof, so as to give it the form and prayer of a plea in abatement;\u2014 containing, however, in form and substance the same defence, interposed by it in the first instance, which being thus amended, an affidavit of the truth thereof, sworn to by the defendant, Evans, was endorsed on, or attached to it, and being again filed as amended, wasjdemurred to and the demurrer joined, and the question raised thereby taken under advisement by the court and the case continued.\nThe record of the next term states that the demurrer filed at the > previous term, w\u00e1s sustained, and the plea again amended and demurred to.and the demurrer overruled, and that upon the overruling of the demurrer, leave was granted to the defendants to withdraw all their \u00bffe case^ excep( tJi& plea in abatement, to which opinion of the court, granting the leave to withdraw said pleas, the plaintiff, excepted, and tendered his bill of exceptions, which_wasJ; signed by the judge, and ordered to be made a part of the record. The plaintiff then filed his replication to the plea remaining in the cause, to which issue was joined, and thereupon a verdict and judgment given in favor of the defendants; and the plaintiff has brought the case before this court by a writ of error.\nThe bill of exceptions, as transcribed in the record, states; \u201c that there were filed, or marked filed by the clerk; three papers, two to the merits, one in abatement, which pleas were filed together at the June term, A. D. 1835, and on the tenth day of the term; which pleas were severally demurred to, and the demurrer sustained to the pleas to the merits of the case, and the plea in abatement was taken under advisement to this term of the court, and the demurrer was sustained by the court, because there was no affidavit to the plea, but the court permitted . the defendant to amend his plea' in abatement \u201d \u2014 \u201c and that there were other pleas to the merits of the case filed at the previous term of this court, and which were not disposed of cither by demurrer or replication, and the court permitted the defendants to amend their pleas in abatement by swearing to the truth of the same, and the plaintiff demurred to the plea as amended in abatement, which was joined by the defendants; and on the argument of the demurrer to the plea in abatement, the court decided that while.the plea in abatement was pending all other pleas should be treated as a nullity, and permitted the defendants to withdraw their other pleas, and the Court overruled the demurrer to the plea in abatement, to all of which the plaintiff excepted.\u201d \u201c That on the trial of the case, the plaintiff offered the letters of administration granted by the judge of the county court of Pope county, in vacation, to the said A. W. Lyon, and the defendants objected because the letters were granted by the judge in vacation, and the court sustained the objection, and the plaintiff excepted. The plaintiff also \u201coffered to introduce the judgment obtain-edin the Circuit Court of Washington county in favor of A. W. Lyon, as administrator\u2019of the estate of Peter Hancock, deceased, against George Robinson, which was also rejected by the court,\u201d and the plaintiff excepted.\nThe plaintiff also assigns as error:\n1st. That the court permitted a plea in abatement, and pleas to the merits, to be filed together, and at the same time.\n2nd. That the court sustained a plea in abatement in defence, after pleasin bar had\u2019been filed to the merits of the action.\n3rd. That the court perrinitted the defendants to amend their plea iu abatement, after a demurrer thereto had been sustained.\n4th. In overruling the demurrer to the amended plea in abatement filed by the defendants.\n5th. In sustaining the plea\"in abatement, filed by the defendants which only'responded or applied to a part of the plaintiff\u2019s declaratoion.\n6th.|In declaring that, while a plea in abatement was pending, all other picas should be treated as a nullity.\n7th. That pending the demurrer to the amended plea in abatement, the court permitted the defendants to withdraw all their pleas to the merits, which had been previously filed in bar, and defend upon their plea in abatement.\n8th. In rejecting and excluding the letters of administration offered in evidence by the plaintiff. -\n9th. In rejecting and excluding a judgment recovered by the plaintiff as administrator, \u00e1te.,\"as set forth in the declaration, when offered in evidence by the plaintiff, showing that he had recovered the same judgment as such administrator upon which he had instituted this suit; and\n10th. The general- assignment that judgment was given for the defendants; whereas, by the law of the land, it ought to have been given for the plaintiff, against the defendants.\nTo which there is a joinder by the defendants.\nPreviously to examining the questions presented by the assignment of errors, and for the purpose of disincumbering the case of the most obvious inconsistencies appearing upon the face of the record; and presenting the points legitimately arising for adjudication in a viewless confused, it may not be improper to declare the opinion of the court, in regard to such repugnancies and inconsistencies.\nShall the facts presented by the entries in the record, made and kept by the court, or those stated in the bill of exceptions, prevail when they are pointedly inconsistent with each other, as they appear in this case, is the question to be decided. The Circuit Courts are courts of record, and are required by law to make and keep a record ^ j.}lejr proceedings in books provided for that purpose; which, by the uniform usage and practice in the courts of this country, from the time of its first organization as a territorial government, to the present period, now confirmed and enjoined by statutory regulations, are always publicly read in open court, and signed by the court, or judge presiding; and the records so made are required by law to be kept, by the clerk of the court, in his office, whole, safe and undefaced, as a perpetual and infallible memorial of the facts therein recorded. And the law attaches to them such uncontrolnble and incontrovertible sanctity, that it will not suffer them to be in anywise controverted or denied, except upon the ground of fraud. And the court itself, after the term in which the proceedings are so recorded has passed by, loses all control over them, and is not permitted to change or alter them, except in cases where there appears to have been manifestly a misprision of the clerk, and then only to correct such misprision by a new entry in the record, which, in some cases, may be considered and taken to operate nunc pro tunc.\nA bill of exceptions is founded upon some objection in point of law, to the opinion and direction of the court, upon a trial at law, either as to the competency of witnesses, the admissibility of evidence, or the legal effect of it, or for overruling a challenge or refusing a demurrer to evidence, and the like. Tidd, 786. The object of bills of exceptions is to preserve the evidence of facts, which, in the ordinary course of proceeding in the courts, would not otherwise appear of record in the case. The bill of exceptions must be tendered at the trial; for, if the party then acquiesce, he waives it, and shall not resort back to his exceptions, after a verdict against him, when, perhaps, if he had stood upon his exception, the other party had more evidence, and need not have put the cause on that point; not that it need be drawn up in form, but the substance must be reduced to writing, while the thing is transacting; because it is to become a record. Tidd, 788. And when the bill of exceptions is signed, the truth of the facts contained in it can never afterwards be disputed.' Tidd, 790. It then becomes a part of the record and proceedings in the cause, and is emphatically a part of the record of the court, and as such, it is deemed in law to be entitled to the same faith and credit; but it can only be so cOnsidered when the bill of exceptions contains in itself intrinsic evidence, that the exception Was taken and reserved while the thing was transacting, or the matter excepted to was passing before the court, and that it was reduced to form and signed by the judge or judges presiding in, or holding the court, at some time during the term of the court, at which the exception was taken and reserved; and no facts,other than those transacting in the court, or properly before it when the exceptions were taken and reserved, can be legally the subject of an exception, or inserted in the bill of exceptions. It results, therefore, from the nature and objects of bills of exceptions, that facts not excepted to when they were transacting in the court, or not properly before the court at the time the exception is taken, or over which the court has no control at the time, although incorporated into the bill of exceptions, cannot be regarded as legally comprising part thereof, or as composing any part of the record of the court; and con^quently they are not entitled by law to any credit, as facts appearing of record in the cause.\nBy applying these tests to the bill of -exceptions before us. it is manifest that almost every fact therein stated must be considered as forming no part of the record, and therefore be entirely disregarded.\nThis question being thus disposed of, we will proceed to examine the questions presented by the record, and raised upon the assignment of errors.\nThe first question to be decided is, whether the plea of ne ungues \\administrator, is properly a plea in abatement, or a plea in bar? In the record it is styled a plea in abatement, and appears to have been so considered and treated by the Circuit Court, and it is urged by the plaintiff in error that this is its true character; but the plea appears in the record, and we are at liberty to determine its character. In every treatise on the subject of pleading to which we have had an opportunity of referring, the ple\u00e1. of ne ungues administrator is classed with pleas in bar, and treated of as a plea belonging approprialely to that class, and the effect thereof would not be, in the opinion of this court, to suspend the plaintiff\u2019s right of action merely, but to defeat it absolutely, by establishing the fac\u00ed that he is notin fact the representative of the intestate Hancock. And it is stated in 1st Chitty\u2019s Pleading, 434, to be a general rule, \u201cthat whenever the subject matter of the plea or defence is, that the plaintiff cannot maintain \u00e1ny action, at any-time in respect of the supposed cause of action, it may and usually should be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement: there are, however, some matters which may be pleaded in abatement, or in bar; but where the plaintiff\u2019s disability merely suspends the right of action, and does not destroy it, it can only be pleaded in abatement.\u201d Here Lyon sues in his representative character as administrator of the estate of Hancock, deceased, for causes of action, a part of which atleast could only have accrued to him in that right. How then could he, at any time, maintain an action upon these causes of action, if he was not the administrator? And what better writ therefor could the defendants have given him, or the law permitted him to have? Certainly none. It follows, therefore, that if the plea did not set forth facts, which merely suspended his right of action, but destroyed it altogether, and if he could have no better writ therefor, it must, whenever it commences and concludes in bar, be regarded as a plea in bar, and not as a plea in abatement. And it has been held that where the action is by- an .administrator, stating a grant of administration from a bishop, of a peculiar diocese, a plea of bona notahilia should be in bar, and not in abatement; because it shows that the plaintiff has no right to sue at. all in the character of administrator. 1 Saund. 274, n. 3; 1 Chitty, 446.\nThe general rule which prevails in pleading is, that a mere prayer of judgment, without pointing out the appropriate judgment, is sufficient; because, thefacts being shown, the court are boundto pronounce the proper judgment; and upon that principle it has been held that if a plea which contains matter in bar of an action, conclude in abatement, it is a plea in bar, and final judgment shall be given upon it; for if the plaintiff have no cause of action, he can have no writ, notwithstanding the conclusion. 1 Chitty, 446.\nBut it has also been held, according to the maxim, conclusio facit jjlacitum, that the class and character of a plea depend upon its for-mular parts; and therefore if a plea commence and conclude as in abatement, and show matter in bar, it is a plea in abatement,, .and not in bar, the commencement and conclusion being in such form as to indicate- the view in which it is pleaded,# and to mark its object and tendency, as being either to the jurisdiction, in suspension, in abatement, or in bar. And upon this principle, Lord Holt, in the case of Medina vs. Stoughton, 1 Ld. Raym. 593, laid it down as a rule that 14 if a man pleads matter which goes in bar, but begins and concludes his plea in abatement, it will be a plea in abatement; but if he begins in bar, though he concludes in abatement, or concludes in bar, though he begins in abatement, it will be a plea in bar.\u201d And in conformity to the first part of this rule, the case of Godson vs. Good, 6 Taunt. 587, was decided. There the action was against the defendant as administratrix of her husband, on a contract entered into by him; her plea began and concluded in. abatement: the substance of it was in bar, viz: that the intestate made the supposed contract jointly with others, (naming them,) who were yet living, and so the action survived- against them. The plain tiff took issue on this, and at the trial it appeared that the contract was in fact joint; but that others besides those named by the defendant in her plea joined in it, and were alive.. If, then, the plea was to be considered as one in abatement, such proof was an answer to it, because the plea has failed to give the plaintiff a better writ; for if he had sued out a writ according to the plea, he might have been again foiled by another plea in abatement; and accordingly, as the court on the authority of the above case, held the plea, a plea in abatement, the rule to enter a verdict for the defendant was discharged. ( This appears, therefore, to be the settled rule, and we are not a,ware of any decision in direct conflict with the rule, although principles sometimes stated in the books appear rather to militate against it. We feel therefore bound to consider the amended plea of ne unques administrator, as pleaded in this case, a plea in abatement, notwithstanding the facts stated in the plea is-matter in bar.\nHaying thus ascertained the pharacter of the plea, the next question presented by the record and assignment of errors, is, whether the several causes of action set out in the declaration are such as may be joined in the same action by the administrator. On the part of the plaintiff in error, it is contended that the plea purports to answer the whole declaration, when it is only responsive to a part' thereof; the cause of action set forth in the third assignment of a breach in the declaration being for an escape out of the sheriff\u2019s custody, on an execution issued on a judgment recovered by Lyon in bis representative capacity after the death of Hancock, upon which he could sue without naming himself administrator; and therefore the plea is no answer to that part of the declaration, and the issue thereupon joined is immaterial. And on the part of the defendants, it is insisted that if the plea ^oes n\u00b0t answer the whole declaration, causes of action are joined therein, which cannot by law be joined in the same action; and therefore the plaintiff, having committed the first error, which is fatal to his action, cannot complain of the insufficiency of the plea.\n\u00bfetermjne these questions, it is necessary to ascertain what cause of action may be joined, when the suit is brought by an executor, or administrator as such. ' The rule first laid down in the case of Bull vs. Palmer, 2 Lev. 165, \u201cThat whenever the money when recovered would be assitts the counts may be joined,\u201d was, by a series of decisions, subsequently made in the courts of England, for a time, greatly shaken, if not entirely overthrown; and it was held in the cases of Herreden vs. Palmer, Hob. 88; Rogers vs. Cook, 1 Salk. 10; Bettes vs. Witchett, 10 Mod. 316; Hosier vs. Lord Arundel, 3 Bos. & Pul. 7; and Nicholas vs. Killigrew, 1 Ld. Raym. 437, \u201cThat money received to the use of an executor after the death of the testator, gives a different cause of action to the executor, from that which accrued to the testator by the receipt of the money in his lifetime; that in the latter case the executor must necessarily sue as such, and is not liable to cost if he fail in the action; but in the former case, he need not sue as executor, but may bring the action in his own name: and if he does sue as executor, he is liable to costs as any other person is.\u201d\nBut this rule, like that in the case of Bull vs. Palmer, was doomed to have but a temporary existence; and upon much consideration has been overruled by the same courts which established it, and the former rule, as laid down in the case of Bull vs. Palmer, has been established, and, by a series of more modern decisions, is declared to be the true rule, and appears to be at this timetheseltledlawin England. See Ord vs. Fenwick, 3 East. 104; Foxwist vs. Fremaine, 2 Saund. Rep. 207; Cowell vs. Watts, 6 East. 405; King vs. Thorn, 1 T. R. 487; Partridge vs. Court, 5 Price, 412; Court vs. Partridge, 7 Price, 591; Catherwood vs. Chaband, 1 Barn. & Cross, 150; Thompson vs. Stent, 1 Taunt. 322; Powley vs. Newton, 6 Taunt. 453; 2 Saund. Rep. 117, d. h. (e.) . But it must be stated in the count that the duty accrued to the plaintiff in his representative capacity of executor or administrator. It is not enough to say that it accrued to him, executor or being executor, it must be averred that it accrued to him as executor or as administrator; and therefore in the case of Henshall vs. Roberts, 5 East. 150, where a count, upon an account stated with the plaintiff, executrix, (not saying as executrix,) was joined with a count on a promise to the testator, it was held in error, after a judgment by nil dicit; and a writ of enquiry and final judgment that those two counts could not be joined, although it was urged that by necessary implication, where the parties to whom the promise was alleged to be made, named themselves \u201cexecutrix and executors,\u201d it must be taken to have been made lo them in their representative capacity, and meant the same as if it had been said \u201cas executrix,\u201d &c., more especially when it is said \u201c executrix, &c., as aforesaid,\u201d which refers to the antecedent counts, in which it was admitted they sued in their representative character. But to this argument Ld. Ellenborougii, C. J. answered, \u201cwe cannot import any thing from the other counts, we must look to this upon the account stated, and see whether it can be joined with the rest;\u201d and the court held that there was no allegation' of their suing in their representative character, and that nothing could be supplied by in-tendment, and for the misjoinder adjudged the decaration bad.\nThis question was incidently discussed in the case of Brown vs. Hicks, decided by this court at the last term; and it ivas then held that in actions by or against executors or administrators in their representative character, the allegation that the duty accrued to, or against them \u201cas executors,\u201d or \u201c as administrators,\u201d was essential in the pleading, to fix and determine the character in which they were sued or suing. And when there is no such allegation, Ihey must be regarded as being sued, or suing in their private, individual character, and not as executor or as administrator; and this, from the authorities then cited, appears to be the settled rule.\nIn the case before us, the first breach assigned shows a cause of action which accAied to the plaintiff\u2019s intestate in his lifetime; and in the second breach assigned, it is expressly stated that the defendant Exans, as sheriff of Washington county \u201ccontriving and intending to wrong the said A. W. Lyon, administrator of the estate of Peter Hancock, deceased, and to delay and hinder him from the recovery of his said debt as administrator as aforesaid,\u201d permitted a certain George Robinson to escape and go at large out of his custody after he had been arrested, and held in custody by him, on a capias ad respondendum issued out by the plaintiff\u2019s intestate against him, without taking any bail, &c.; clearly showing the arrest to have been made in the lifetime,and the escape to have taken place after the death of the plaintiff\u2019s intestate; but the third breach assigned wholly fails to state that judgment therein mentioned was recovered by the plaintiff as administrator, or that it was founded on any debt or duty to Hancock in his lifetime, or any liability which had accrued to the plaintiff as administrator of the Estate of Hancock after his death, or that it was, not for some debt or liability which had accrued to the plaintiff in his-private, individual character; but it is therein simply alleged, \u201cthat A,. W. Lyon, administrator of the Estate of Peter Hancock, heretofore, to* wit, on the 7th day of June, in the year A. D. 1831, in the circuit court in and for said county of Washington, by the consideration and .judgment of the same court recovered,\u201d &c. $\u00a1271, and also the sum of thirty-six dollars and sixty-four cents, which were adjudged to the said A. W. Lyon, administrator as \u00abaforesaid, for his costs,\u201d !;/ after issue joined. The same decision is found Crosse vs. Bilson, 6 Mod, 102; 2 Reblc, 769, 789, 225, 2 Saund. 319, b, (n. 6.)\nSo in Holbech vs. Bennett, 2 Lev. 12, Hale, C. .T. said \u201c The court cannot at this day award arepleader upon a writ of error, IS vbay. reverse the judgment, as was used anciently. This cause has been disused for above these hundred years, and cannot be practised now.\u201d\nAnd this is equally the case at this day, and in this country. Justice Stout, in the United States vs. Burnham, 1 Mason, 66, which was p lSe brought by writ of error from the District Court of Massachusetts to the Circuit Court, says, \u201cIf this were a case originally'depending in this court, a vepleader might perhaps have been proper to be awarded; for, although in geno ral, a vepleader is not grantable in form of the person, who made the first fault in pleading, nor where the court can give judgment upon the whole record; yet if it appear that substantial justice will not otherwise be done, the court might otherwise award it. . But this court sits in this cause as a court of error, and although the practice was anciently otherwise, a repleader is now never awarded by a court of error.\u201d\nIf this be, as it is with deference believed, it is the true doctrine upon the subject, it is most assuredly not changed by the statute quoted in the text, which allows a repleader after arrest of judgment.\nSo in Wells vs. Lain, 15 Wend. 102, it is stated by the chancellor, that \u201c no repleader can be awarded upon a writ of error, where it has not been asked for in the court below.\u201d", "type": "majority", "author": "Ringo, Chief Justice," } ], "attorneys": [ "Fow\u00e9er, for the plaintiff\u2019 in error;", "Walker, contra:", "Cummins\u2019 and' Pm\u00ae, for the same:" ], "corrections": "", "head_matter": "Gov. for use of Lyon, Adm. against Lewis Evans and others.\nError to Washington Circuit Court.\nAll bills of exceptions must be tendered at the trial \u2014 not that they need be draws-up in form, but the substance must be reduced to writing-, while the thing is transacting.\nA bill of exceptions can only be considered part of the record, -when it -contains in itself intrinsic evidence that the exception was taken and reserved-while the thing was transacting, or the matter excepted to was passing before the court; and that it was reduced to form and .signed by the judge or judges presiding, at sometime during the term.\nFacts not excepted to when they are transacting in the court, or not pr operly before the court at the time the exception is taken, or over which the court \u25a0has no control at the time, although incorporated into the bill of exceptions, cannot be regarded as legally comprising part thereof, or as composing-any part of the record of the court, and consequently are not entitled by law to any credit, as facts appearing of record in the cause.\nThe plea of ne ungues administrator is a plea in bar.\nBut if it begin and conclude in abatement, it will be considered as a plea in. abatement.\nThe established rule in England now is, that when a suit is brought by an ex* ecutor or administrator as such, and the money when recovered would be assets, counts may be joined upon causes of action accruing to the testator or intestate in his lifetime, and to the executor or administrator after death..\nBut in such cases it must be stated that the cause of action accrued to the plaintiff as \u201cnsexecutor\u201d or \u201cas administrator.\u201d\nThe act of 1831, with regard to the actions on bonds, &c. for a penalty, is substantially the same in most respects, with St. 8^-9, Wm. 3, ch. 11, see. 8; and the provisions thereof are compulsory.on the plaintiff to assign or suggest breaches. If they are not assigned, in cases within the Statute, the plaintiff cannot recover; and unless the condition and breach appear on the record, the proceedings will be erroneous.\nWhere Statutory bonds are payable to the Governor, in his official character, he holds the legal interest therein, merely as a naked trust; and in suits upon such bonds, the persons for whose use such\u2019 suits are prosecuted are regarded as the real plaintiffs in the case.\nThe breaches assigned in such cases must, therefore, have all the essential requisites of so many different counts in the same declaration, whether they are assigned in the declaration, or in the replication, or appear on the record; And they are subject to the same rule as to the joinder of different and distinct rights and causes of action, as are applicable to such joinder in different\nAcounts, or a single count of a declaration.\nA misjoinder of causes of action which cannot be joined, in different breaches, in such suits, cannot be aided by entering a nol. pros, after demurrer, and is fatal on general demurrer, in arrest of judgment or on error.\nWhere, therefore, in the first breach a cause of action is assigned which ac* crued to plaintiff\u2019s intestate in his lifetime ; in the second breach the. defendant is charged, as Sheriff, with permitting a prisoner to escape, aftec the death of the intestate; hut where in the third breach it is merely alleged that the plaintiff administrator of P. H. recovered judgment; and does not ighow that such judgment was recovered by him as administrator, or that it was founded on any. debt or duty to the intestate, or any liability which had Accrued to the plaintiff as administrator, this must be considered as,;setting forth a cause of action belonging to the plaintiff in his private, individual right; and there is, therefore, a misjoinder of breaches, which is fatal.\nThe plea of ne unques adm. is, therefore, no answer to the third breach, and as it olaimsto answer the whole declaration, it is invalid as to any part thereof;\nBut the plaintiff having, after his demurrer to that plea was overruled, replied to the plea, and tendered an issue thereon, he is now precluded from assigning the judgment on the demurrer as error, as he waived his demurrer by replying.\nBut the issue upon the plea is immaterial \u2014 because a finding upon it would not determine the right to recover on the third breach \u2014 and therefore judgment on a verdict upon the issue to the plea of ne unques adm. is erroneous, and must be reversed.\nAnd although the plaintiff committed the first error, by the misjoinder of breaches in his declaration; yet, as no objection was made to the declaration by the defendants, and as the defendants were permitted to file an amended plea in abatement after pleas .in bar had been filed and demurrer to one of them overruled, which plea in abatement the plaintiff might have \u2022 treated as a nullity, but was precluded by the decision of the court below ; and as all the pleas in law were permitted to be withdrawn, which left no valid defence in the case \u2014 for these reasons, and under the Statute of 1807, which authorises a repleader after arrest of judgment, this judgment is not affirmed; but a repleader is awarded, to commence with the declaration.\nThis is not a case, in which the proceedings on the part of the plaintiff' are so entirely defective and erroneous, that the judgment ag-ainst him would not har another action properly brought for the same cause.\nThe facts of this case are so fully stated in the opinion of the court, that it is unnecessary here to repeat them, and tbe reader, therefore, is referred to the opinion.\nFow\u00e9er, for the plaintiff\u2019 in error;\nThe plaintiff contends,\n1st. That a plea in abatement must be filed within the four first 'days of the return term, or it is a nullity. In this case it was filed on the tenth day. Arch. Pr. p. 1, et seq. 1 ch. p. 489,490. .\niindly. That any plea or defence to the merits of the case \u2014 even a prayer of oyer \u2014 precludes a defendant from pleading afterwards in abatement. 1 Ch. PI. 471 et seq.;474 etseq.\n3rdly. Where pleas in abatement and in bar are filed together, and at the same.time, the pleas in abatement are, and must be treated as, nullities \u2014 -the pleas in har being a legal waiver of the right to plead in abatement. Defendants could not plead both at,the same time.\u2014 1 Ch. PI. 491,\n4-thly. A plea in abatement, if imperfect or void, cannot be amended; and even if amendable, the amendment in this case was made after pleas in bar had been filed, and could only be considered a plea from the time it was made perfect by amendment; consequently it was precluded by the pleas to the merits. 1 Ch. PI. 500; Tidd. Pr. 638.\nSthly. A plea in abatement, filed without affidavit, is void, and cannot be amended. Pope, Steele, McCampbelPs Dig. 321; 1 Ck. Pi. 500.\n6thly. The plea in abatement was insufficient, extending to the whole, when it ought to have extended only to a part of the declaration, and the demurrer thereto ought.to have been sustained. 1 Ch. PL 493. -\n7thly. Tile pleas in bar could not be withdrawn, to be let in or sustain a plea in abatement. They were not nullities \u2014 the law is precisely the reverse.\n8thly. The withdrawal of said pleas in bar, was giving the defend, ants an undue and illegal advantage, which no court should permit. It was injustice and error.\n9thly. The letters offered were competent evidence.\nlOthly. The judgment offered in evidence, in favor of said Lyon, as such administrator, against said Robinson, being the same judgment set out in the declaration, and upon which the action was mainly predicated, as assigned in the third and principal breach, was competent to show said plaintiff\u2019s right to sue, and ought to have been permitted to go to the jury. 1 Saund. PI. & Ev. 503 et seq.\nllthly. The issue upon which the case was determined, and judgment rendered, was an immaterial issue, and the defendants can have no benefit from it. 1 Ch. PI. 691.\nOn the argument of a demurrer to a plea in abatement, or to a replication thereto, the defendant cannot take any objection to the declaration. 1 Ch. PL 500, and references there.\nWalker, contra:\nThe plaintiff in error assigns for error that the plea in abatement was filed too late, and that the court erred in overruling the demurrer. Defendant insists that the plea was filed in good time. If filed with other pleas, the court should have disregarded them until this was disposed of. See 1 Littell, 4; 5 Munford, 1; 1 Monroe, 55.\nIt came too late; the plaintiff should have moved the court to disregard it. See 1 Ck. PL 491 & 492., By demurring, he waived the time, admitted the facts, but denied the law. The plea was a good plea \u2014 if it was not, by replying he waived his right to question the law; for an issue of law and fact cannot exist at the same time.--See 2 Marshall, 496; 3 Marshall, 613; 1 Chitttfs'Pl.707.\nBut if a doubt could arise on this point, still the declaration is defective, and it was the duty of the court to render judgment against committed the first error. See 1 Saunders\u2019 PL-fy Ho. 43 iq 4. Bibb, 27; 4 Monroe, 17G.\nThe-other positions assumed i a error are entirely untenable; for there is nothing in the record which will authorise an investigation of e;t{ler 0f them. This court will not, I am sure, decide that the court below erred in rejecting- evidence, unless they could s\u00e9e what that evidence was; nor upon-the finding of the jury for the same reason. See 4 Mon. 42; 1 Bibb, 340.\nThe'assignment of e\u00a1rror based upon the supposition that the declaration's good in part, is untenable: the demurrer to the plea reaches-the whole declaration. Nee 1 Ckiity, 525.\nThe declaration is wholly defective: there is clearly a misjoinder of \u25a0 causes of action. See 1 Chilly, 234.\nThe plea, although called in the pleadings a plea in abatement, is, properly a plea in bar. Sec Lord Raym. 1207; 1 Chilly, 491,\nCummins\u2019 and' Pm\u00ae, for the same:\nThere is some contradiction between the bill of exceptions, and the remainder of the record; .but, from both taken together, it may be collected1 that four pleas were filed at the first term, to two of which neither demurrer nor replication was filed \u2014 and that in this situation the demurrer to the first pica, ne unques administrator, was taken under advisement, and \u2019the case continued; another plea also was dumurred to, and the demurrer overruled, and that plea also remained unanswered.\nAt the next term the court below sustained the demurrer to the first plea, treating it as a plea in abatement, and therefore defective, be-' cause not sworn to. Yet the want of affidavit, even had it been a plea in abatement, could only be taken advantage of by motion to strike out, or treat the plea as a nullity, was no ground for demurrer, and was waived by demurrer. See 2 Marsh. 44, Patrick vs. Conrad, et al.\nThe defendants then amended the plea by swearing to it, and the plaintiff demurred to it, as amended. On the argument of this demurrer, the court below decided that it was a plea in abatement, and' that'while it was pending, all the pleas should be treated as nullities, ana permitted the other pleas to be withdrawn. The demurrer was then overruled, and the plaintiff filed his replication to the plea of nc unques administrator. The issue thus made was tried by a jury, who found for the defendants,and-judgment was rendered accordingly.\nIa order to. determine* the questions involved-in this case, it is a a-ecssarj, first, to ascertain,the character of ibis plea, it is called on the record a plea in abatement, was so treated in the court below, and is claimed to be such by the plaintiff here. The defendants filed it there as a plea in bar, and still contend that it is one-. The plea as originally filed, commenced and concluded in bar, and averred, in precise technical form, that Lyon never was administrator, in manner' and form, &c. As amended, it commenced and concluded with praying judgment of the writ and declaration, but contained the same positive allegation as before, in the same words.\nThat ne unquss adm. is a' plea in bar, see 1 Ch. PI. 485; 2 Maul\u00e9. & S. 555 \u2014 matter which shows that the plaintiff cannot maintain any action, for the same cause of action, is proper for a plea in bar. A plea in abatement should give a better writ or bill. 1 Ch. PL 445; Stephen, 483. If Lyon is,not the administrator of Hancock, he can maintain no action in the premises; nor could the defendant, by pleading that 'matter in abatement, by-any possibility give him a better bill or writ. And even where a plea which contains matter in bar, commence^, and concludes in abatement, it is considered a plea in bar. Ch. PI. 446; 2 Saund. 209,\u00bb. c. (I) \u2014 1 Arch. 304.\nA plea in bar is sufficient, which prays judgment generally, and the \u2022court will award the proper, 'legal consequence. 1 Lev. 222, Pit vs. Knight; 2 Lev. 19, Barnes vs. Gladman; Sir. 520, Curwenvs. Fletcher. At all events, the want of proper form could only be objected to by special demurrer.\nThis being settled, the first, second, and third assignments of error at once disappear as unfounded in fact. The fourth assigns tor error the decision of the court below, overruling the demurrer to the amended plea.\nOf this, even if it were error, the plaintiff cannot now avail himself. St is settled by adjudications of this court, as well as of others, that having replied to the plea after demurrer overruled, he waived the demurrer and the decision thereon, and can now take no advantage thereby. See Gage vs. Melton, decided in this court at the July term, 1838.\nAs to the position that the court below erred in deciding that while a plea in abatement is pending, all other pleas are to be treated as nullities, that decision, although it may be wrong, is on an abstract point, not existing in this case, inasmuch as no plea in abatement was pending; and it does not follow that because it was wrong, therefore' cour^ erre