JAN. TERM, 1856. FOWLER V. KEATTE3. FOWLER V. KEATTS AS AD. In an action of debt by al executor or administrator, upon a note executed to the testator or intestate, in his lifetime, the declaration may be either in the debet et detinet or in the detinet alone And where, in such case, one of the obligors bath departn d this life, before suit brought, the breach may negative the payment by the deceased obligor , , not sued, as well as by the defendant ; or by the defendant alone. Appeal frorn Pulaski Circuit Court. ON. JOHN J. H CLENDENIN, Circuit Judge. Fowler, for appellant. Bertrand, for appellee. HANLY, J. The appellee, as administrator, with the will annexed of Lemuel H. Goodrich, deceased, brought debt against the appellant, in the Pu
FOWLER V. KEATTS. VOL. 17 laski circuit court, to the June term, in his lifetime, nor to the said plaint-1855, on a writing obligatory, made by iff, as such administrator, since the the appellant and one Chase, deceased, death of the said Goodrich, nor has the and not sued, payable to the order of legal representative of the said Chase, 47039 the appellee's testator. *At the since his death, paid said snm of mo-return term of the writ sued out in this ney, or the interest thereon, either to cause, the appellants appeared—craved the said Goodrich, before his death, or oyer of the bond sued ou, which being to the said plaintiff, since his death," granted, he demurred to the declara- & c. tion, setting out the following special This demurrer being submitted grounds, to-wit : to, and considered by the court, 1. "Because said plaintiff, as such was overruled, and the appel-administrator, counts in the debet as lant saying nothing further, final well as in the detinet, whereas, by law, *judgment was rendered for the [*471 he should have counted, as such ad- appellee, and from which the appel-ministrator, in the detinet alone." lant appealed. '2. "Because, the breach alleged in The only question presented by the
said declaration, is broader than the transcript in this cause, and the only contract." error assigned by the appellant, is as to As the demurrer relates to the com- the sufficiency of the declaration it mencement and breach, we will, to this behalf, or the propriety of the rul-show its application, copy those parts ing of the court below, in respect to the-in our statemen t of the case. They are demurrer thereto. in these words: 1. As to the ground—in general, the "James B. Keatts, as administrator declaration should be, in the debet and with the will annexed, of all and singu- detinet ; but upon the principle that, a lar the goods and chattels, rights and man may complain of only a part of credits, which were of Lemuel H. his grievance, and not of the whole, Goodrich, deceased, plaintiff herein, the plaintiff may abridge his demand, by attorney, complains of Absalom and declare in the detinet only, instead Fowler, defendant herein, of a plea that of the debet and detinet. And in . ache render unto him, as such adminis- tions by and against executors and ad-trator, the sum of S650, with interest ministrators, the declaration should, thereon, according to the tenor and ef- technically, be in the detinet only. See fect of the hereinafter mentioned writ- 1 Chitty's Pl. 361, 362. ing obligatory, which, to him, as such The usual form prescribed for the administrator, he owes, and from him commencement of declarations, in ac-unjustly detains. tions of debt by an administrator, "Yet the said defendant has not, where the cause of action originated in though often requested so to (.1), paid the lifetime of his intestate, in the said sum of $650, or any part thereof, English common law courts, is thus or the interest, or any part thereof to, given by Mr. Chitty, in his work on said plaintiff, as such administrator, Pleading : "A. B., as administrator, since the death of the said Goodrich, &c., complains of C. D., being &c., nor did he pay said sum of money, or of a plea that he render to the the interest, or any part of either, to said A. B., the sum of of lawful said Goodrich in this lifetime, nor did money of Great Britain, which he un-the said Chase, in his lifetime, pay justly detains from him," &c. But it said sum of money, or the interest, or has been ruled by this court in Mitchell any part of either, to the said Goodrich, v. Conley, 13 Ark. Rep. 416, as it had,
JAN. TERM, 1856. before the decision in that case, been ration. In Green et al. v. Thornton, 7 similarly ruled in England, that a dec-Ark. Rep. 385, this court, by Johnson, laration would be good in such case if Chief Justice, said : "The breach must commenced, thus: "A.B.,as administra-obviously be governed by the nature of tor, &c., complains of C. D., of a plea of the stipulation. It should be assigned debt" (see also, 2 Chitty's Pl., 13 text, in the Words of the contract, either and note G., citing 11 East 65, and negatively or affirmatively, or other authorities), holding that the in words which are co-extensive other words, usually found in floe pre-with the import and effect of cedents, as first above given, are use-it." See also Mitchell v. Conley, ubi less—consequently, surplusage, and not sup. ; Clary v. Morehouse, 3 Ark. Rep. ground of demurrer, if omitted. 261 ; Bank of Louisiana v. Watson, 4 It was the usual course of adjudica-Ark. Rep. 518. tion in England, as our extract as We hold, therefore, that the court above from 1 Chitty's Pleadings im-below did not err in overruling appel-plies, where the form found in the lant's demurrer to the declaration in books of precedents is pursued, and the this behalf, on the ground hereinbe-declaration was in the debet and detinet, fore stated. Considering the demur-instead of the detinet only, to hold rer taken as utterly frivolous, and that a technical objection, and, if wholly without merit, the judgrfient of ground of demurrer at all, only the Pulaski circuit court will be af-472.9 *of special demurrer. We, firmed, with 5 per cent, damages on therefore, hold that the apppellant's the amount of the judgment recovered lemurrer was not well taken, for the below, and costs. first ground assigned. Absent, Mr. Justice Scott. 2. As to this ground—It is manifest to us, the demurrer was not well taken, for the reason, that the breach is not broader than the contract declared on would warrant. It is certain, the ap-pellee made his breach broader than he was required to make it, by the strict rules of pleading in such case. All that he need have averred in the breach, was, that the sum demanded was not paid to this testator, prior to his death, nor to him since. See 1 Chitty's Pl. 334. The fact whether it had been paid by Chase, the deceased co-payor, to the testator, before his death, or to the appellee since, was a matter of defense for the appellant, and need not have been negatived by the breach, by the rules of pleading. But certainly, this breach, though unnecessary, is warranted by the terms of the contract declared on, and the incidents which have occurred in respect to it and the parties, since its execution, as appears by the decla-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.