Claiborne County MsArchives Court.....Cushing, Elijah June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

CUSHINGS LEGAL REPRESENTATIVES vs. JAMES GIBSON.


Upon an obligation of A B promising to pay C D Curator of the estate of E F, 
deceased, or to the legal representatives of said estate the sum of nine 
hundred and fifty-five dollars an action cannot be maintained in the name of 
certain persons describing themselves as the legal representatives of the 
estate of E F deceased without stating how or in what manner they are the 
representatives of such estate. 

Such an instrument, being a chose in action, belongs to the executor or an 
administrator, and not the heir.

The term legal representatives, is a generic term embracing several species, 
as heirs, executors, administrators, de bonis non, or with the will annexed 
and the exact character in which the plaintiff sues, should be stated in the 
declaration, or it might not be in bar to a second suit.


OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.

From a view of the record, I find, the plaintiffs have declared against the 
defendant in the following words: State of Mississippi, Clairborne County, 
Superior Court, September term 1820. Edward Cushing, Isaac Cushing, John 
Cushing, by his guardian, Edward Cushing, Ralph Cushing, Anna Cushing, Gideon 
Backer and Terese his wife, Ira Thomas and Betsey his wife, legal 
representatives of the estate of Elijah Cushing deceased by Martin D. Cushing 
their attorney, complain of James Gibson in custody &c. Joseph Panel, not 
found, of a plea of trespass on the case. That the said Gibson render unto the 
said plaintiffs the sum of nine hundred and fifty-five dollars, which he owes 
to and unjustly detains from them. For that whereas, on the twenty fifth day 
of November 1818, the said James & Joseph at said county, to wit, did make 
their certain instrument in writing, obligatory; commonly, called a bill 
single, of the date aforesaid, which is to the court now here shown, with 
their own proper names thereto subscribed under seal, and then and there 
delivered the same to the plaintiffs, whereby, on the 23d day of May 1820, 
they did jointly, and severally, promise and oblige themselves, they, or 
either of them, to pay unto John Ruth, Curator of the estate of Elijah Cushing 
deceased, or to the legal representatives of said estate, the sum of nine 
hundred and fifty-five dollars, and, to which declaration, there is a general 
demurrer filed, which on argument was sustained by the court. Whereupon the 
plaintiffs by their counsel except to the opinion, and pray that their bill of 
exceptions may be signed, sealed and enrolled, &c. It is a well established 
principle in pleading, that the plaintiff must set forth the cause of his 
complaint with clearness and precision, to a certain extent in general, which 
should pervade the whole declaration, and is particularly required in setting 
forth the parties, times, p1ace, and other circumstances, necessary to 
maintain the action. 1 Chitty 255. Tidds Practice, 3d edition 405. If a 
different rule were to prevail, the informality and looseness of a plaintiff's 
declaration, might work the greatest injustice, by taking the defendant by 
surprise. There should then be an allegation of all the circumstances 
necessary for the support of an action and it should contain, a full, regular 
and methodical statement of the injury which the plaintiff has sustained, with 
the time and place and other circumstances, with such precision, certainty, 
and c1earness, that the defendant, knowing what he is called upon to answer, 
may be enabled to plead to and traverse the facts alleged against him, so that 
the jury may be empowered to pass with justice upon the rights of the parties, 
and that the court may render such judgment as the law directs. 6, East 422, 
3, 5, Term Reports 623. Edward Cushing and others, came into court, and filed 
their declaration against the defendant, in the character of the legal 
representatives of Elijah Cushing deceased. The word legal representatives may 
be considered a generic description, out of which we may have many species, 
such as heirs, aliens, executors and administrator, administrators de bonis 
non, and administrators with the will annexed. If this be a fact, and the 
declaration be held sufficient, it is manifest that the defendant will be 
deprived of the privilege of controverting their existence under either head 
of the species, for they do not describe themselves as being one or the other. 
If the plaintiffs were suffered to recover under the present state of the 
pleadings, could such a recovery be pleaded in bar by the defendant, in the 
subsequent suit for the same cause of action, by an executor or administrator? 
I think not. For every plea in bar must be adapted to the nature of the 
action, and conformable to the court, in order to bar the action, which cannot 
be done by the present defendant, as he would have to make the judgment of the 
court in the former recovery, the basis of his plea in bar. 1 Chitty 567. 1 
East. 411. Then it would be clearly contrary to every principle of law and 
justice, to make him answerable in this case, where he would be liable to be 
harrassed by the same persons, under different descriptions, for the very same 
cause of action. I will further illustrate my views upon this subject, by a 
reference to some of the most approved precedents. In 2d Chitty 64, it is said 
if an administrator come into court as the representative of his intestate, he 
must declare in the following words: "A. B. administrator of all and singular 
the goods and chattles, rights and credits, which were of E F deceased, at the 
time of his death, who died intestate, complains of C D, being in custody &c. 
From an examination of the case of Cook vs. Calcraft 3 Wilson 380, I find the 
same doctrine recognised. So of an executor, or of an administrator de bonis 
non, they must be represented in the pleadings in their special representative 
character, or the defendant will not be put to answer. The rights of executors 
and administrators are very different, both in and out of court, and this is 
sufficient to establish the justice of the principle of the law we have laid 
down. In the first case, executors have all those powers given by the testator 
in his will, which are not inconsistent with the established laws of the 
country, while in the latter instance, the administrator derives his power and 
authority in England from the ordinary, and from the Orphans Court in this 
state, and he can only exercise those rights, which appertain to him as an 
administrator. In the case of Epps vs. Dumorel referred to by defendant's 
counsel, in 2 Call, is not in point. There it was decided by three judges 
against two, that the heir may maintain an action of debt on a bond to his 
ancestor, conditioned for quiet enjoyment of lands, when the breach has 
happened since the death of the ancestor. But in the case now before us, the 
writing obligatory was entered into since the death of Elijah Cushing, and 
made payable to Job Ruth, the curator, or the legal representative of the 
estate of said Cushing, and cannot be likened to the case cited where it was 
determined by the court, the bond of the ancestor, conditioned for quiet 
enjoyment, was the right of the heir, as the legal representative of the real 
estate of the testator, the breach being after his death. But if; before the 
rights of the executor, created, have accrued, as the legal representative of 
the decendents personal chattels, and the recognition of this doctrine, at 
once proves, the necessity of the plaintiff’s shewing precisely in what 
character he comes into court, for upon this will materially depend the right 
he has to recover. The heir at law of Elijah Cushing deceased, could not 
sustain an action on the note mentioned and described in plaintiff's 
declaration, because it is a chose in action, and belongs to either the 
executor, or administrator, yet they are the legal representatives of the 
estate of the deceased. From every view of this case, we have not been able to 
discover, that the decision of the judge who presided below was incorrect.

Let the judgment of the court below be affirmed.



Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 80-83.

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