Prieto et al. v. Duncan.

against the estate only, are to be found and entered. In such case, if the executor or administrator sue, such creditor must have the right, resulting from the design of the statute itself, to plead his own demand by way of set-off, and the executor or administrator can only recover the balance, for that balance is all that is due the estate. If a creditor claims a balance in his favor, and it is so found, we see no reason why a judgment may not pass against the executor or administrator for such balance, to be paid as other debts against the intestate, out of assets to be discovered and inventoried, and this, to avoid an unnecessary suit. The result of this reasoning is, that a party bringing suit against an executor or administrator and proving his claim, is entitled to a judgment, whether his claim was presented within two years or not, provided it be not barred by the general act of limitations. If he does exhibit it, his judgment is to be satisfied in due course of administration of the estate inventoried. If he does not exhibit it, then his judgment is to be satisfied out of such property as may be subsequently discovered and inventoried. If, instead of suing, he is sued by an executor or administrator, he can plead his claim by way of set-off, and the balance be adjudged to him to be paid out of any estate thereafter discovered or inventoried.

The judgment of the Common Pleas is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.

Judgment reversed.

SARAH ANN PRIETO et al., Plaintiffs in Error, v. JOHN DUNCAN, Defendant in Error.

ERROR TO LA SALLE.

Where a subpoena in chancery is served upon husband and wife, by leaving a copy for the wife with the husband, at her place of residence, etc., it will be presumed, in the absence of proof to the contrary, that the residence of the parties is identical. Where a bill to foreclose a mortgage, sets it out, with a copy of the acknowledg ment, etc., and states that the date of the mortgage, the signing, etc., and “that it was executed as aforesaid," the averments will be sufficient to show that the party complained of executed it.

It is erroneous to decree the payment of money, out of a fund belonging to persons not made parties to the suit.

THIS was a suit in chancery, brought to foreclose a mortgage, executed in favor of Duncan, by William Whaley, in his lifetime, to which his wife, now Sarah Ann Prieto, one of the plain

Prieto et al. v. Duncan.

tiffs in error, was a party. A default was entered against Mrs. Prieto, and a decree taken. The facts are stated in the opinion of the court.

B. C. Cook, and D. L. HOUGH, for Plaintiffs in Error.

J. STRAIN, for Defendant in Error.

WALKER, J. The first assignment of errors questions the sufficiency of the sheriff's return of service on plaintiff in error. His return is this: "Served by reading this sums to Joseph A. Prieto and delivering to him a copy thereof; also left with him. a copy of this writ for Sarah Ann Prieto, wife of the said Joseph A. Prieto, at her place of residence, informing him of the contents thereof, said Joseph being a white person above the age of ten years." The objection urged against the sufficiency of this service is, that it fails to state that Joseph A. Prieto is a member of the family of plaintiff in error. The provisions of the statute require that the service shall be by delivering to the defendant a copy of the summons, or by leaving such copy at the usual place of abode of the defendant, with some white person of the family of the age of ten years or upwards, and informing such person of the contents thereof. This service states that a copy was delivered to the husband at her residence, and that he was a white person of the proper age, and that its contents were explained to him. In law, the husband and wife being one person, the legal presumption is that they reside together, and that they are members of the same family; and the presumption will not be indulged, in the absence of all evidence, that they reside apart from each other. But, even if such an intendment could. be made, this return states that this copy was left with the husband at her place of residence, and if the return is true, it creates a strong presumption that as he was found at her residence, they were residing together. Until rebutted, this presumption must be acted upon as true. If a departure in the officer's return, from the precise language adopted by the legislature, may be tolerated in any case and the service be held good, we think this is sufficient. We perceive no error in the return, and by it the court acquired jurisdiction of the person of plaintiff in error.

It is likewise urged as a ground of reversal, that the complainant's bill fails to allege that plaintiff in error executed the mortgage. The bills sets out a copy of the mortgage at length, also a copy of the certificate of the acknowledgment. She purports to have been a party, and her name purports to have been signed to it, and the officer certifies that she acknowledged it,

McDonnell v. Harter, use, etc.

and the bill contains this allegation: "Which mortgage bearing date the day and year last aforesaid, was executed as aforesaid." How executed as aforesaid? Why, as set out by copy in the bill. No other inference can be drawn from the language. It appears then, to have been signed, sealed and acknowledged by her. We are at a loss to perceive in what manner an averment could have been more directly and positively made. There is no force in this objection.

It is also insisted that the court erred in decreeing the payment of any balance of this debt, after the sale of the mortgaged premises, out of the estate of William Whaley, deceased. His representatives were not made parties to this proceeding, and it was error to decree the payment of any portion of this debt out of assets in their hands, unless they had been made parties and were properly before the court. It could only be by having them properly before the court, that it could acquire jurisdiction to make a decree affecting that fund. Before such a decree was made, they had a right to be heard and have their rights fully presented.

The decree must therefore be modified, so as only to authorize the sale of the mortgaged premises for the satisfaction of the debt; and reversed in so far as it requires any balance of the sum that may remain unsatisfied after the sale of them, to be paid out of the assets of the estate of William Whaley, deceased. And that each party pay one-half of the costs of this court.

Decree modified.

CHARLES MCDONNELL, Appellant, v. WILLIAM HARTER, for the use, etc., Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

The Common Pleas should not assess damages, as if by default, while a plea of the general issue is on file, though verified by an insufficient affidavit. The plea should first be struck from the files.

THIS was an action of assumpsit. There was a plea of the general issue filed. The affidavit of merits to the plea, states that defendant had a good defense on the merits, except as to $458 of plaintiff's demand. The court, with this plea on file, entered a default, and gave judgment for plaintiff.

W. H. L. WALLACE, and THOMAS DENT, for Appellant.

J. W. CHICKERING, and SHUMWAY, WAITE & TOWNE, for Appellee.

Hurd et al. v. Burr et al. Davis v. Chickering.

CATON, C. J. The plea of the general issue was regularly filed, and was never stricken from the files. On this state of the record the court assessed the damages as if upon a default. If the affidavit of merits, which was filed with the general issue, was insufficient, the plea should have been stricken from the files. While it remained it was a bar to the action, till tried by a jury, or by the court with the consent of the parties in place of a jury, and found to be untrue. There was no such trial, nor indeed was there any issue formed on this plea. It stands upon the record as a simple naked bar to the action. The judgment must be reversed and the cause remanded.

Judgment reversed.

EDWARD B. HURD et al., Plaintiffs in Error, v. MELANCTHON BURR et al., Defendants in Error; and

JOHN W. DAVIS, Plaintiff in Error, v. JOHN W. CHICKERING, Defendant in Error.

ERROR TO COOK COUNTY COURT OF COMMON PLEAS.

In Cook county, where a note is the cause of action, and the declaration besides special, contains the common counts, the affidavit of merits to a plea, may be general, and go only to a part of the damages claimed. Former decisions reviewed.

If a plaintiff shall abandon the common counts, and the defendant shall then refuse to swear that he has a meritorious defense, the plaintiff will be entitled to a judgment.

If the plaintiff, after a plea filed, shall limit his demand, and the defendant refuses to make a further affidavit, judgment may pass as by default.

Judgment against several cannot go, upon service of notice, etc., on one; nor does filing notice, in the office of the clerk of Cook County Court, meet the exigency of the statute.

THE following shows the state of the record in the case of Hurd et al. v. Burr et al.:

This was an action of assumpsit in the Cook County Court of Common Pleas, by the defendants in error, against the plaintiffs in error.

Summons issued on the 20th day of June, 1855, returnable on the 1st Monday of July, then next, and was served on the 21st day of June, 1855, on Hurd, Periam and Ruckel, and returned "not found," as to Beebe.

On the 20th of June, 1855, declaration counting on a promissory note for $171.23, with the common money counts for

Hurd et al. v. Burr et al. Davis v. Chickering.

$2,000, was filed with a general breach, and damages laid at $2,000.

Attached to this declaration, was an affidavit showing a service on the 21st day of June, on Joseph Periam, one of the defendants below, of a copy of the declaration, and that the same had been filed "in the office of the clerk of the Cook County Court," and that a rule to plead in ten days had been entered.

On the 22nd day of June, the defendants below filed with the clerk of the Cook County Court of Common Pleas, a plea of non-assumpsit, with an affidavit thereto attached, sworn to by their attorney, stating that he was advised and believed that defendants below had "a good defense to said suit, or a portion of the same, upon the merits."

At the July vacation term, on motion of plaintiffs below, the said plea was stricken from the files, and a judgment by default for want of appearance.

Thereupon, the court upon proof, assessed the plaintiffs' damages at $1,125.69, and rendered final judgment against all of the defendants below, and ordered execution therefor.

In the case of Davis v. Chickering, the record is as follows: This was an action of assumpsit, brought by John W. Chickering, defendant in error, against John W. Davis, plaintiff in error, in the Cook County Court of Common Pleas, to the January term, A. D. 1858.

The defendant, for plea, filed the general issue, and defendant's affidavit of merits January 5th, 1858.

Plaintiff moved to strike defendant's plea from the files, for want of a sufficient affidavit of merits.

This motion was allowed by the court. Defendant's default was thereupon ordered to be taken, and judgment entered against defendant.

The affidavit of merits was as follows:

John W. Davis, being duly sworn, according to law, on oath says, that he is defendant in the above entitled cause, and that he believes he has a good defense, upon the merits, to a part of the amount of damages claimed by said plaintiff in said

action.

Defendant, by his counsel, prayed an appeal in said cause to the Supreme Court, which was allowed.

DICKEY, MATHER & TAFT, for Hurd et al.

B. E. GALLUP, for Burr et al.