rectly stated; 106 and in an action by an administrator de bonis non it is held that the authority and the liability will not satisfactorily appear, unless the appointment of the original administra 166 "The proper mode of pleading the fact (that one is administrator) is by a direct allegation that letters were granted. * Whether he was duly appointed or not is a question of law. The defendant (ordinarily the plaintiff) should have stated how he was appointed, and then the court could de termine its sufficiency upon demurrer; or if an issue to the country was joined upon the fact of having obtained letters, the question could be tried by a jury." Beach v. King, 17 Wend. 197. If the plaintiff allege that he is the executor, and that he has been duly and legally authorized to act as such executor, that defendants received the property, etc., which belonged to the deceased during his lifetime, and that as such executor the plaintiff has demanded payment, the pleading is not demurrable. Welles v. Webster, 9 How. Pr. 251. Nor is it demurrable if the plaintiff should describe himself as administrator, etc., giving name of decedent, stating that he died intestate, and that the plaintiff was duly appointed. English v. Roche, 6 Ind. 62. In both these cases the allegations would be subject to criticism, on motion; yet there is no absolute failure to show the plaintiff's authority. The correct doctrine is recognized in Missouri, although the cases are not in harmony. In Duncan v. Duncan, 19 Mo. 368, it is held that a petition stating that the plaintiff sued as administratrix upon an indebtedness due her intestate is a sufficient statement of her right to sue. In State v. Matson, 38 Mo. 489, the administrator de bonis non, as authorized by statute, had sued in the name of the state, to their use; but though named as such administrators, there was no allegation of their appointment. The court held that the petition was fatally defective in not stating the facts showing the appointment of the administrators de bonis non, and reversed the judgment on error, although there had been no demurrer or motion below. It may be doubted whether the court did not go too far, even if the rules as to showing their appointment are the same as though they were the plaintiff's, inasmuch as the want of capacity is waived, if not objected to by demurrer or answer. In another more recent case (Bird v. Cotton, 57 Mo. 568), a demurrer to the petition, because it did not show that letters testamentary had been granted, and by a court of competent jurisdiction, was overruled below, and the court sustained the ruling, Wagner, J., saying: "The capacity in which the plaintiff sued was not as clearly stated as it should have been. But the petition styled the plaintiffs as executors, stated that the note was made payable to their testator, averred his death, and then brought their letters into court and offered to make profert of them. All these facts, taken together, showed unmistakably the capacity in which the plaintiffs sued, and their right to sue, and enabled any person to know what was intended." The court would, doubtless, have sustained a motion to make the pleading more precise. See, tor be set out, and the negative averred that the demand was not paid to him.167 169 Notwithstanding the plaintiff describes himself in the title as executor, as trustee, etc., yet the body of the pleading must show that he sues in his representative capacity,168 and if, in this the title is defective, the defect may be cured by proper averments.16 In showing the plaintiff's authority, no form, of words is essential and the pleading is not demurrable if the facts appear substantially, or even obscurely, provided they appear.170 But the approved way is to allege the death of decedent, that letters of administration upon the estate, or testamentary, as the case may be, were issued to the plaintiff upon a day named, by a court named, and that he is still acting as such administrator or executor.171 also, State v. Patton, 42 Mo. 530, and Headlee v. Cloud, 51 Mo. 301. In California the same view is taken. Halleck v. Mixer, 16 Cal. 574; Barfield v. Price, 40 Cal. 535. 167 Vanblaricum v. Yeo, 2 Blackf. 322. The present statute of Indiana is peculiar, and not only excuses the plaintiff from making profert of his letters, but provides that his right to sue shall not be questioned unless the defendant shall file a sworn plea denying the right, when the plaintiff must file a copy of the letters issued to him. 2 Gavin & H. St. Ind. p. 527, § 152. See Nolte v. Libbert, 34 Ind. 165. 168 Scranton v. Farmers' & Mechanics' Bank, 33 Barb. 527; Bennett v. Whitney, 94 N. Y. 302. There are cases in New York, where the plaintiffs described themselves as commissioners, as supervisors, etc., and suing as such without stating their appointment, in which the pleading was held good on demurrer. Smith v. Levinus, 8 N. Y. 472; Fowler v. Westervelt, 40 Barb. 374. 169 See ante, § 145. 170 See cases last above cited. 171 [The following will show a sufficient allegation when action is brought by or against an administrator or executor: [State of [County of [In the Circuit Court.] [E. F., as Administrator of the Estate of C. D., Deceased, Plaintiff. [vs. [A. B., as Executor of the Last Will and Testament of G. H., Deceased, Defendant. [The plaintiff complains of the defendant, and alleges: [1st. That on the day of one G. H., in his lifetime, executed § 265. 4. Partnership Demands and Liabilities. A claim by partners is a joint demand, and one against partners is for a joint obligation. No partner has a direct interest in any specific indebtedness owing to his firm-as, upon a note or bill payable to, or owned by it. It is a single demand in favor of the firm that is, in favor of all the partners as one person, as though it were a corporation-and the interest of each person is not in any particular demand, but in the general stock or fund, after all claims and liabilities have been adjusted. Unless the contrary has been provided in the articles, the partnership.is dissolved by the death of any member of the firm, and it becomes the duty of the survivors to wind up its affairs. Actions thereafter are in the name of the survivors; the cause of action survives to them, and the representative of the deceased partner has no interest in any specific demand, because-and only becausedecedent had no such interest. Hence, in such case, there is a survivorship in fact, because the demand is joint in fact. The right of the survivors to enforce partnership demands in their own names, springs from the fact that such demands are joint; for survivorship is an incident to a right really joint. The pleader will not describe the obligation as given to the plaintiffs, but to A., B. and C., who composed the firm at the time; will allege that one of them-as, C.-has since died, and that they are the surviving members of the firm.172 and delivered his certain promissory note to C. D., of which the following is a copy: (Set out copy.) [2d. That after the making of said promissory note, and before the commencement of this action, to wit, on the departed this life, and said plaintiff was, on the pointed administrator of his estate. day of the said C. D. day of duly ap [3d. That after the making of said promissory note, to wit, on the day of, G. H. departed this life, leaving a last will and testament, which was duly admitted to probate, by which the plaintiff became, and now is, the executor of said will. [This is sufficient to show general form of allegation of authority. Other allegations must be made depending upon the statutory provisions of each state as to how claims are presented against estates of deceased persons.] 172 The common-law right of the surviving members of a firm to wind up Except where local statutes make the joint obligations several,173 all the living members of the debtor firm, and those only, must be joined in a suit to enforce a partnership obligation; and if one of them be dead, the fact must be stated. § 266. In ordinary joint Rights and Obligations. In treating of parties to actions, reasons were given for sup posing that the common law rule which required all joint rights to be prosecuted in favor of, and all joint obligations to be prosecuted against, the survivors only, and which forbade the joinder with the survivors of a personal representative of a deceased obligor or obligee, had been abrogated by the Code.174 But inasmuch as in most of the states it has not been so held, the pleader will be only called on to omit the name-as, parties in the actionof the deceased co-obligee or co-obligor, stating the fact of their death, when the representative character of survivors will appear. In states, however, where the administrator of the deceased is permitted to join or be joined in the action, then not only the death, but the appointment of the representative, must be shown, as in actions by or against executors or administrators. It should, however, be noted that the interest of executors, administrators, and trustees, as between themselves, is joint in fact; that survivorship to their joint rights and to their joint obligations is actual; hence the representative of a deceased co-executor or administrator, or co-trustee, has no interest in such right or obligation, and, upon principle, the survivors only should be parties, the death of the others being stated. § 267. 5, 6. Husbands, Committees, etc. In treating of parties to actions, the rights and liabilities of the husband, at common law, in respect to injuries suffered or done by its affairs has, in some of the states, been modified by statute-as, in Missouri-by requiring the survivors to give security as administrators of the partnership estâte; or, in default, that the representative of the deceased partner take charge of both estates. Wag. St. 78, 79. 173 As noted in section 93. 174 Ante, §§ 62, 105-107. the wife, and in respect to contract debts due to or from her, were briefly noticed. In this connection it is only necessary to say that, whether the husband be plaintiff or defendant, if his right or his liability arise from his marital relation, that relation must be stated, and, also, that it existed at the commencement of the suit; other wise, no right or liability will be shown. Guardians are not, ordinarily, allowed to sue in their own name, but sometimes, by statute, a committee, or guardian of an insane person, may sue and are subject to be sued, in which case the same particularity as to the author ity or liability should be observed as in actions by or against execu tors or administrators. A complaint against a committee appointed for a drunkard under a statute, should show by what authority he was declared a drunkard, and guardianship given to the defendant.15 § 267a. Consent of Court-When necessary-Must be alleged. 176 Where the consent of court is necessary before suit can be brought, the complaint or petition must show the authority; it is not matter of defense.177 RULE V. In Actions upon Contract, Consideration must be shown. § 268. The Rule and Exceptions at Common Law. Contracts, to be valid, must be founded upon a consideration, and, except as to those that import it, the consideration must be proved, and, consequently, should be stated.178 The petition should set it 175 Hall v. Taylor, 8 How. Pr. 428. 176 [See Code Civ. Proc. N. Y. § 2101; GRAHAM v. SCRIPTURE, 26 How. Pr. 501; Lyon v. Manly, 32 Barb. 51; Id., 10 Abb. Pr. 337, 18 How. Pr. 267; Baldwin v. Roberts, 30 Hun, 163; Bank v. Risley, 19 N. Y. 369; Scofield v. Doscher, 72 N. Y. 491. Remedy for not showing that leave had been granted is by motion to set aside the summons and complaint. Lane v. Salter, 4 Rob. (N. Y.) 239; Finch v. Carpenter, 5 Abb. Pr. 225; Farish v. Austin, 25. Hun, 430.] 177 Scofield v. Doscher, 72 N. Y. 491. 178 [As to what is a sufficient allegation of consideration, see Bank of River Falls v. German Am. Ins. Co., 72 Wis. 535, 40 N. W. 506; Meyer v. Hibsher, 47 N. Y. 265; Leonard v. Sweetzer, 16 Ohio, 1.] |