English Cases.-In the Exchequer. the testator. Thomas Hunter died, and, a former day is unchanged: the decree will, Before Sir JAMES WIGRAM, Vice Chancellor. ster solely in his character of agent of the Sweet v. Hunter-April 16th and 18th. agent of Thomas Hunter, and he was bound 1845. PRODUCTION OF DOCUMENTS. to hand over the payments to him. When Thomas Hunter, the executor, died, Webster became personally liable to his repreA Bill was filed by a creditor of a testator for an ac-sentatives for any balance due from him to count of the estate against the surviving executrix and A., who had acted only as agent for the deceased executor in getting in the estate. A., by his answer, admitted the plaintiff's title, and that he had in his possession documents relating to the testator's estate: Held, upon motion for production, that A., as he had submitted to answer the bill, was bound, notwithstanding that he was improperly made a party, to put in as full an answer as a person properly made a defendant might be compelled to put in. But as the personal representatives of the deceased executor, to whom A. was accountable, and who might, therefore, have an interest in the documents, were not made parties to the bill, the court refused to order the production except upon an understanding to amend by making them parties. This was a motion on behalf of the plaintiff, for the production of certain documents which Webster, one of the defendants, had by his answer admitted to be in his possession. The facts of the case sufficiently appear in the judgment. Hubback in support of the motion. Sir JAMES WIGRAM.-In this case of Sweet v. Hunter, which was a motion for the production of papers, the bill was filed by a creditor of the late Charles Hunter, for the payment of his debt. The defendants are Ann Hunter, widow and executrix of the testator, and a gentleman of the name of Webster. Charles Hunter appointed two persons his executor and executrix, namely, Thomas Hunter, his brother, who resided in Scotland, and his widow Ann. Thomas Hunter proved the will, and appointed a person of the name of Webster, who was a writer to the signet to act as his agent in respect of the testator's property. Webster during the life of Thomas Hunter, received a considerable part of the estate, and applied it in the payment of debts, and also got into his possession certain leases and various documents relating to the estate of Thoms Hunter, in like manner as the debt- Queen's Bench.-Scarpellini v. Atcheson. There is no reason, prima facie why the rule should not apply, that is, as between the plaintiff and Webster. There is, however, another point: Webster, in truth, says that he himself is a creditor in respect of this transaction; and he says he is a creditor, not merely upon the estate of Thomas Hunter, but upon the estate of the testator; thus completely identifying himself with the estate of which Ann Hunter is the representative. Therefore, as between the plaintiff and the defendant, I should have no hesitation in ordering the production of the documents. But this further point occurs, and it is one more of form than of substance, that, as Webster is accountable as agent to Thomas Hunter, to Thomas Hunter's representatives, who are not made parties to the suit, it will be clearly ordering him to produce documents in the absence of a party who may have an interest in the documents and in the account. There are many cases, Lambert v. Rogers, 2 Mer. 489; Murray v. Walters, (Lord Chancellor, Lincoln's Inn Hall, 7th August, 1829;) Grane v. Cooper, (Lord Chancellor, Lincoln's Inn Hall, 15th December, 1828,) which say, that, as between a plaintiff and defendant, although the plaintiff has a right to call for the documents, yet, if an absent party has an interest, the court will not order them to be produced unless the absent party is made a party to the record. The only question therefore, is, whether I shall order them to be produced, the plaintiff undertaking to amend the bill, by making the representatives of Thomas Hunter parties, or let the motion stand over, with liberty to the plaintiff to amend the bill, and with liberty to bring this motion on again after the bill is so amended. It really makes no difference in this case, as far as the justice of the case is concerned, which course is taken. It will be perhaps better to take the latter course to avoid making a precedent, Let the motion stand over, with liberty to the plaintiff to amend the bill by making the representatives of Thomas Hunter parties, with liberty to bring on this motion again after the bill is amended. I do not mean to say, that, in this case, I could not make the order; but I would rather not make a precedent where it is not absolutely necessary. Third plea, the Statute of Limitations. Replication, that, when the cause of action on the note accrued to plaintiff, she was a feme covert, and the wife of T. S., and so remained until his death, when she became discovert; and that the action was commenced within six years next after the death of her said husband. Rejoinder, after stating the coverture of plaintiff at the time of making said note, that said note was payable to the order of plaintiff; that before it became payable, T. S. authorized her to indorse in her own name and deliver, and she did by such authority indorse and deliver the note to W. F., for value by him paid: that when said note became due and payable, it was in the hands of Messrs. G., the holders and indorsees, and entitled to sue thereon, and the note came into the possession of plaintiff from them by delivery: held first, that if the meaning of the rejoinder was, that the note came into the hands of plaintiff due and satisfied, and that therefore, she had no right of action, it was a departure from the plea. Secondly, that, as an answer to the replication, it was defective, for not containing a denial of the death of plaintiff's husband within six years. Fifth plea, that plaintiff, at the time of making said note, was the wife of T. S., and that while plaintiff was so the wife of T. S., he elected to take and have said note in his marital right, and then caused plaintiff to indorse and she by his authority, did then indorse said note, and that T. S. then delivered said note so indorsed by plaintiff, to W. F.; that afterwards T. S. died, and afterwards the promissory note came into possession of plaintiff by delivery from W. F. Held on special demurrer, that the plea did not show with sufficient certainty that the note was reduced into possession by the husband, so as to prevent the cause of action from surviving to plaintiff. THE Substance of the pleadings is stated in the judgment of the court. Ogle, in support of the demurrer to the fifth plea and of the demurrer to the rejoinder on the third plea. Upon the fifth plea, the question is as to the nature of the wife's interest in the note. The doctrine in M'Neilage v. Holloway, 1 B. &. A. 218, is not consistent with Pillishkirk v. Pluckwell, 2 M. & S. 393, and has been qualified by Gaters v. Madeley, 6 Mee. & Queen's Bench.-Scarpellini v. Atcheson. W. 423, 427. The words of the plea must in the plaintiff, it is a departure from the be taken most strongly against the de- plea. Hickman v. Walker, Willes, 27; fendant. The defendant ought to have Roberts v. Mariott, 2 Saund. 188; Kinder v. made it appear that the husband parted Paris, 2 H. Black. 561. with his interest in the note. It may be J. Henderson, contra.-The question assumed that it was merely delivered by upon the fifth plea is, whether the circumForbes as agent of the husband, and was stance of the plaintiff being a married woreturned by Forbes to the wife without man at the time of the making of the note, consideration. Nash v. Nash, 2 Madd. and of the indorsement of it, renders it im133; Richards v. Richards, 2 B. & Adol. possible for the note to return to her as 447, 452, 454; 1 Rop. Husband and Wife, payee. The indorsee could never have a 221; Purdue v. Jackson, 1 Russ.; Honner cause of action against the wife, upon her v. Morton, 3 Russ. 65; Elwin v. Williams, indorsement during her coverture. The 12 Law Journ., N. S., C., 120. [PATTESON, note can return only to the person who, in J.-The plea does not state that the note construction of law could sue upon it jure came to the wife after she was discovert; proprio. Here it does not appear that the "afterwards" does not mean after the death wife was the meritorious cause of action. of the husband.] It will be contended that In the cases in equity there was no quesif the note came to the wife after the death tion as to a chose in action. Mason v. of the husband, she could not sue upon it as Morgan, 2 Adol. & Ell. 30 Coles v. Davis, payee. But, suppose the consideration for 1 Camp. 485. The indorsement of the the note was the work and labor of the note by the husband is a reduction of it wife as a laundress, could not she have into possession; it is not necessary to sued upon the original cause of action if allege that any consideration was given; the note was dishonored? The original for the presumption is, that a consideration right of action is not merged until the note was given upon the indorsement. But if is paid; it is only suspended until the note no consideration was given, it would stil is due. Sayer v. Wagstaff, 5 Beav. 423. be a reduction of the note into possession. The plaintiff took the note as a feme sole, The plaintiff might be invested with the and her right to sue as such is admitted; rights of an indorsee; but the attempt here she has a right to treat the indorsement by is to illude the consequences of taking the .her husband as a nullity. If the plea be note, subject to the legal and equitable inconstrued as stating that the note came to cidents of the indorsee; Prestwick v. Marher during coverture, she took it as agent shall, 7 Bing. 565; Gaters v. Madeley, 6 of her husband; and she might sue subject Mee. & W. 423. The plea sufficiently to a plea in abatement. Bendix v. Wake-shows that the intention on the part of the man, 12 Mee. & W. 97; 1 D. & L. 450. As to the rejoinder on the third plea, a plea of the Statute of Limitations admits the cause of action, but denies the remedy. Gale v. Capern, 1 Adol. & Ell. 102. The defendant, therefore, admits by that plea that the note was made payable to the plaintiff; and, therefore, she had a cause of action from the time when the note be-shows, by collateral circumstances, that came due up to the time of bringing the action. The replication is good; and the rejoinder repeats statements already made in the plea, and then goes on to say, that the plaintiff received the note from parties who were entitled to sue upon it. The question of whether there has been a reduction into possession, does not arise on this plea. If the rejoinder is intended to put forward, as a defence, that the note was satisfied when it came into the hands of the plaintiff, and that so there never was any cause of action husband to exercise his marital right was carried into effect. The word "afterwards" refers to the immediate antecedent -the death of the husband. The husband alone was liable upon the note. The rejoinder on the third is also good. The Statute of Limitations operates upon the debt, not upon the remedy. The rejoinder the remedy is barred, and that the reasons stated by the plaintiff, in her replication, for taking the action out of the statute, do not apply. No departure is involved in showing that the exception relied on does not apply. A departure from a former pleading, is where another and different ground from that relied upon in such pleading is set up. The rejoinder does not contain a denial expressed or implied, of any allegation in the plea; it is consistent with and sustains it, though it unavoidably dis closes some other defence. Queen's Bench.-Scarpellini v. Atcheson. In Whitehead tion from surviving to the plaintiff, his v. Walker, 9 Mee. & W. 506, which was wife; and, on this part of the case, we may an action for not accepting a bill of ex- consider it now to be clear, and, we may change-plea, that six years had elapsed add, not disputed on argument, that a prosince the refusal-it was held, that a fresh missory note given to the wife during covright of action does not accrue on non-pay- erture is not a personal chattel which is ment of the bill when due. The replica- vested absolutely in the husband. This, tion is bad. It does not allege that the we think, is settled by Richards v. Richards, note was made to the plaintiff dum sola, or 2 B.and Adol. 447, Gaters v. Madeley, 6 Mee. that the husband assented to her taking it. & W. 423 and the recent case in this court Barlow v. Bishop, 1 East, 432. If so, the of Hart v. Stevens, 9 Jur. 225 and it folrejoinder shows that another person is en- lows, as a consequence upon those decisions, titled, who would be barred by the statute. that, in such case, upon the death of the In Richards v. Richards, 2 B. & Adol. 447, husband, the remedy survives to the wife, it was impossible that any action could be unless, as the expression in this and many brought in the lifetime of the husband, be- other cases is, the husband by some act cause he was both payee and maker: if has reduced the chose in action into posthe holder of the note is barred, all those session. who claim under him are barred also. Ogle in reply. Even in the case of a bond, the husband might sue alone upon the original consideration; so that he would be barred by the statute, though his wife would not. Cur. ad vult. Although this, however, may be considered no longer doubtful, what, in each case, shall amount to a reducing into possession, is a question of much greater nicety and difficulty. In all the cases referred to, an action brought by the husband is mentioned as an instance at least, if no more, of what constitutes a reduction into possession. LORD DENMAN, C. J., now delivered the And in Richards v. Richards, 2 B. & Adol. judgment of the court.-The first count in 447, Lord Tenterden, C. J., quotes Co. the declaration is upon a promissory note, Litt. 25 b., where, after noticing the effect of which the defendant is maker, and the of marriage upon chattels generally, it is plaintiff payee. To this count, the third said, "But, if they be in action, as debts plea is the statute of limitations: to the by obligation, contract, or otherwise, the same count, the fifth plea states in sub- husband shall not have them unless he and stance, that the plaintiff, at the time of the his wife recover them." To the like effect, making the said note, was the wife of the is the language of Lord Hardwicke in Garsaid J. Scarpellini; and that, while the fort v. Bradley, 2 Ves. 675, where he plaintiff was so the wife of the said J. observes, "Choses in action, coming to the Scarpellini, he elected to take and have the wife before or after marriage, survive to her said note in his marital right, and then with this distinction, that, as to those which caused the plaintiff to indorse, and she, by come during coverture, the husband may his authority, did then indorse the said note; for them bring an action in his own name, and the said J. Scarpellini then delivered and may disagree to the interest in the the said note so indorsed by the said plain- wife; and the recovery in his own name is tiff to one William Forbes; that, after-equal to a reduction into possession." wards, and before the commencement of like manner Lord Kenyon in Milner v. this suit, J. Scarpellini died, and afterwards, Milner, 3 T. R. 627, after noticing the effect and before the commencement of this suit, of marriage upon chattels generally, rethe promissory note came into the posses- marks, "When a chose in action of a wife sion of the plaintiff, by delivery from the is to be reduced into possession, and it is said William Forbes. To this plea there necessary to bring an action for that puris a special demurrer, several causes being assigned; and the question thereby raised is, whether the plea contains any answer to the first count, and especially whether it be shewn with sufficient certainty that the note was reduced into possession by the husband, so as to prevent the cause of ac In pose," he does not, indeed, say bringing an action is the only method, it must be brought in the name of husband and wife." And in the recent case of Hart v. Stevens, to a question from the court as to what is reducing a note into possession, the answer is, "receiving the money due, or bringing Queen's Bench.-Scarpellini v. Atcheson. an action upon it;" no third case was sug- then averred that the action was commenced gested. This, at least, then, is certain, within six years next after the death of her that something precise and specific should said husband. It is clear, then, that the be stated, from which the Court may rea- replication contains a sufficient answer to sonably infer that disagreement of interest the plea, and it remains only to be consid in the wife, mentioned by Lord Hardwicke, ered whether the rejoinder is a sufficient as an extinguishment of her rights. No answer to that replication. Now, the recase in its circumstances the same was joinder states the coverture of the plaintiff cited; and that, perhaps, hardly can be at the time of making the said note as in expected. It remains for us, therefore, to the replication mentioned; that the said decide upon the language of the plea itself. note was payable to the order of Louisa Now, the allegation that the husband elect- Scarpellini, the plaintiff'; that after the ed to take and have the said note in his making of the note, and before it became marital right must be considered rather as payable, J. Scarpellini, the husband of the the legal conclusion from the facts stated, plaintiff, authorized her to indorse in her than as an averment sufficient in itself. If own name and deliver, and she did, by such not, as it is really an allegation of matters of authority, indorse and deliver the note to fact, the plea may be open, as was contended William Forbes for value by him paid; for by the counsel, to the objection of dupli- that, when the said note became due and city. Passing this, however, and supposing payable, it was in the hands of Messrs. the indorsement in the plaintiff's name by Glyn & Co., the holders and indorsees of the husband's authority, according to Coles the said note, and entitled to sue thereon, v. Davis, 1 Camp. 485, to be equivalent to and who then presented the note for paythe husband's indorsement, what does the ment, and the note came into the possession statement of the delivery by him to Forbes of the plaintiff from the said Messrs. Glyn & necessarily import? Are we to infer, in Co. by delivery, they being such holders the absence of any statement to that effect, and indorsees, and entitled to sue thereon. (such statement is to be found in the re- The first question is, what answer is injoinder hereafter to be considered) that it tended to be set up to the replication. If was delivered for a valuable consideration, the meaning be that the note came into the at the time given, or to satisfy a debt before hands of the plaintiff due and satisfied, and due from the husband to Forbes; or, in that, therefore, she had no right of action short, that it implies a delivery inconsistent thereon, the rejoinder is a departure from with the rights of the wife. We think the plea; because the effect of the plea of that this ought not to have been left in un- the statute is to admit a right to sue upon certainty, and that the plea which rests the the note, but to say that the plaintiff has defence on this point of reduction into pos- lost her remedy by lapse of time. session by the husband is defective. If, case of Gale v. Capern, 1 Adol. & Ell. however, it can be said, that although no 102, bears strongly upon this point. In that value appears for the delivery to Forbes, case the declaration was in assumpsit upon yet the statement is of a gift to him, and an award: plea, set off upon a promissory that that would equally amount to the hus- note, stating the making and indorsement band's disagreement to the interest in the of the note: replication, that the supposed wife, it is left equally open to inference debt, the cause of set-off upon the note, that Forbes may have given the note to the did not accrue within six years next before plaintiff before the commencement of the the commencement of the suit. The effect suit, and in this respect the plea contains of that replication coming into considerano answer to the action. tion, on the question, whether any evidence was necessary in order to establish the plea of set-off on the part of the defendant, it was holden, that no proof was necessary, but that the making and indorsement of the note stood admitted upon that state of the pleadings. It is plain, therefore, if the facts disclosed in the rejoinder do really constitute any defence to the action, they should have been pleaded originally, and that they can The second question arises upon the plea of the statute of limitations, the replication and the rejoinder thereto. The replication states, that, when the cause of action, in the first count mentioned, on the promissory note accrued to the plaintiff,she was a feme covert, and the wife of the said J. Scarpellini, and so remained until his death, when, by reason thereof, she became discovert; and it is The |