488 v. Hill. CASES DETERMINED IN THE JAN'Y 1831 defence, between these parties, and that they are not broad enough to embrace it. This statute, after allowing the assignFerguson ment of various instruments named, provides, that in all actions to be commenced on every such assigned bond, &c., the defendant shall be allowed the benefit of all payments, discounts and sets-off, made, had, or possessed against the same, previous to notice of the assignment, any law, usage, &c. to the contrary notwithstanding." These words are very broad and comprehensive; and the legislature, by using them, evidently intended greatly to enlarge the rights of payors and, obligors of notes, bonds, &c. The words "set-off," and " payment," are oftener used in law, and have perhaps a more definite and precise meaning attached to them, than the word discount. Certain it is, that, even in common parlance, the two former are more restricted in their signification, than the latter. At all events, it seems to me, that, as used in this statute, and in the connection it is, "discount," must be understood to mean evey detention or abatement of the claim-or, more properly speaking, every equity against the claim. Prior to this enactment, the law on this subject, is known to have been very different. The single circumstance of the assignment Laving been made before, or after the maturity of the note, varied, most radically, the defence, which the payor could make When made before, he could avail himself of no payment which he might have made, nor of any equity which he had against the payee; but where the assignment was after maturity, all such defences were let in. The legislature, seeing this distinction, and esteeming it an evil, no doubt, designed to remedy it, by subjecting notes in the hands of every assignee to the same equities and discounts, as they had previously been, when held by assignment, after they were due: provided, that such matter of defence existed anterior to notice of assignment. Thus to construe the statute, would be to advance and give effect to its remedial provisions, and that, as I conceive, according to its true spirit. Taking this, then, to be the proper construction of the act of 1812, the plea, in this case, is good. For, the books are full of authority, that a payor of a note, when sued by an assignee, to whom it has been assigned, after maturity, is allowed, in defence, to introduce, not merely payments, which he may have made to the payee, or previous holder; and sets-off, which he may have against him, but the broad principle is that any equity, and every defence, which would have been good for him, against the payee, is available against such assignee. v. To this point, one authority will be sufficient, as it is full to JAN'Y 1831 the purpose, and refers to many others. In the case of O'Callaghan v. Sawyer, the court say, "The set-off ought to have Cleveland been received. The note had long been due and dishonored, et al. Ex'rs. when it was indorsed; and, the point has been too long set- Chandler. tled, and too repeatedly recognised, to require any discussion 5 Joan.' now, that the indorser took the note, subject to all the equity, Rep. 118. and to every defence, which existed against it, in the hands of the original payee." Then, as the facts stated in this plea, would have abated the suit, if brought for the use of Robertson, with whom the agreement was made for longer day of payment, they are equally available against the writ sued out for the use of De Jarnette, a subsequent holder. There was, therefore, no error, in overruliug the demurrer, below: and the judgment must be affirmed. JUDGE COLLIER concurs in the result, but not in the reasoning, of the opinion of the court. JUDGE CRENSHAW not sitting. Judgment affirmed. CLEVELAND, et al. Ex'rs. v. CHANDLER. 1. An agreement by the plaintiff to accept a plea, presenting abatable matter, as a plea in abatement, after pleas in bar are filed, is a waiver of all objections as to matters of form. 2. A demurrer cannot reach the order of pleading; and where a plea in bar and in abatement are pleaded together, the proper rule is to move to strike out the latter, or treat it as a nullity; a replication would be an admission that it was regularly filed. 3. Executors here, are not entitled to cxercise any power as such, other than collecting, and taking care of the estate, until they have given bond, and taken the oath prescribed. 1 Cleveland, A. Carson, sen and H. Brantly, as executors of David Carson, dec'd, brought an action of debt, in the Circuit court of Dallas county, against Chandler, founded upon a promissory note, executed by him to the plaintiffs' testator.To the declaration, the defendant filed four pleas in bar, and, in the fifth place, pleaded, "that Adam Carson, sen. and Har 62 490 CASES DETERMINED IN THE JAN'Y 1831 ris Brantly, two of the plaintiffs, had never taken upon them☑ selves the execution of the will of the said David Carson," Cleveland which was received as a plea, in abatement. Issues were taet al. Ex'rs. ken upon on all but the last, to which the plaintiffs replied, "that Chandler. Adam Carson, sen. and Harris Brantly, were named together v. with the other plaintiff, as executors, though they had not qualified, by giving bond and taking out letters." To this replication, the defendant demurred, generally, and the demurrer was sustained. The sustaining of the demurrer, by the Circuit court, is here assigned as error. PICKENS & CALHOUN, for the plaintiffs in error, relied not only on the ground, that all those named in the note, must join, but on the further ground, that a defendant cannot be admitted to plead several pleas of different grades. He cannot plead the general issue, and in abatement also. They cited, 1Chitty's Pleading, 13; 1 Saunders, 426, note; 2 Saunders, 209 and 212; Toller, on Executors, 351, 445 and 446; 1 Comyn's Digest Abatement E. 13; 3 Bacon's Abridgment, 13. H. G. PERRY, for the defendant in error. By JUDGE COLLIER. The agreement of the plaintiff, to accept the fifth plea of the defendant, as a plea in abatement, is a waiver of all obligations as to matters of form. It was competent for the plaintiff to have declined noticing the plea, on the ground that it contained abatable matter, and that pleas in bar had already been pleaded. The law has prescribed the order which the defendant must observe in pleading; and if matters, posterior, in the order of time, are pleaded, those which are prior, are tacidly waived. Pleas in abatement must come in, if at all, before pleas in bar; and, if both are pleaded together, the latter supersede the former, without the action of the court upon the question. Such would have been the course of the law, uncontrolled by the agreement of the parties, or by the manner in which the plaintiff may treat the defendant's pleas, either of which may prevent its operation.In this case, there is no agreement upon the point: the plaintiff has, however, replied, and must be understood to accept the plea, as if pleaded in the proper order; and this inference is the more rational, as the judgment, if in favor of the plaintiff, would have been final. The demurrer cannot reach the order of pleading, by the defendant; the correct course, if a plea in abatement and in bar be pleaded together, is to move to strike out the former, or treat it as a nullity. I will not say, JAN'Y 1831 that a demurrer would not be sustained, if taken by the plain tiff, to the defendant's plea; but, when the plaintiff replies, he Cleveland impliedly admits that the plea is regularly filed, and cannot et al., Ex'rs have the benefit of the defendant's demurrer, farther than to Chandler. question the legal merits of his plea. It remains, now, to consider the sufficiency of the plaintiff's replication. At common law, the executor derived the authority to administer his testator's estate, from the will, exclusively, probate was required that its genuineness might be ascertained, and its registration was intended as evidence to It would, therefore, folthe world of who was the executor. low, that, as all persons, named as executors in the will, derive a joint interest, they should join in the prosecution of actions, in regard to the estate. And no injury could result from such requisition, since no bond, or other indemnity was required, In this country, for the correct administration of the estate. the case is very dissimilar: an executor, here, before he obtains letters testamentory, (which is his authority to execute the directions of the will) is required to enter into bond, with sufficient security, conditioned for the performance of all the duties, which may, by law, be required of him, as such.a V. aAct 14th Laws of A bSec. 12 By the same act; executors are required, before letters testa- June, 1821, mentary issue, to take an oath to perform their duties, as such; Sec. 13;and may, at pleasure, resign their authority. From thence, lab. 195. it is obvious, that executors here, derive not their authority entirely from the will; and, that they are not entitled to exer- and 15. cise any power, as such, until they have given bond, and taken the oath prescribed; and, if they assume to act as executors, until these shall have been done-other than in the collection, and in taking care of the testator's estate-they act in their own wrong. -cited f'm In Frask v. Donoughue, the Supreme court of Vermont cl Aik.370 decided, none can joint-executors, but such under the statute. act as as give bond, 5 Am. Dig. I have not taken occasion to examine the 271. act of Vermont, with a view to ascertain its similarity with the provisions of our act, but suppose it to be substantially the same. What object had the legislature in view, in requiring an executor to give bond and security? It was, doubtless, to provide an indemnity for the payment of the debts and legacies. To permit an executor, who has not complied with this requirement, to join in the prosecution of suits, would be to afford an opportunity, by which that object would be thwarted, 492 v. CASES DETERMINED IN THE JAN'Y 1831 and frequently frustrated. If all must join in actions, in relation to the testator's estate, then each would be competent to Davis receive money or property, sued for, and give a discharge, which would be binding on all. This, surely, is not allowaM'Connell ble, by our law. There is, then, no error, in sustaining the cited in demurrer, and the judgment must be affirmed: and, of this 5 Am.Dig. opinion, is a majority of the court. al Aik. 28 271. Judgment affirmed. DAVIS v. M'CONNELL. 1. An agreement to perform an award, is upon the same footing with all other agreements, and where violated, it must be proceeded upon by regular ac tion. 2. And where a party agrees, that an award thall be entered the judgment of the court, yet the summary remedy of a judgment upon motion, cannot be given against him. Writ of error, from the Circuit court of Monroe county.It appears, from the record, that while this suit was pending, in the court below, the parties agreed to submit all matters of difference between them, to arbitration; that, Davis, the defendant below, entered into a bond, to M'Connel, in the penalty of ten thousand dollars, by which he bound himself to perform the award, which the arbitrators should make. The condition of the bond concludes as follows: "And it is here stipulated, by the said Henry Davis, that the award and umpirage above contemplated, shall be entered the judgment of the Circuit court of Monroe county, at its ensuing session."And, accordingly, at the October Term, 1828, of said Court, the following entry was made: "It appearing, to the satisfaction of the court now here, that the said Henry Davis, heretofore, to wit, on the sixth day of October, 1828, executed his certain bond to the said William M'Connell, conditioned, that the said Henry Davis should stand to, abide by, observe, perform, fully, and keep the award, order, arbitrament, and final determination, of William C. Coolidge, Lee Slaughter, and Charles O. Foster, of, and concerning all manner of action and actions, cause, and causes of action, suits, bills, bonds, pro |