in this respect by the subsequent act of

The primary question, therefore, is, are heirs and devisees, in actions under the statute, representatives of the deceased debtor? I think they are. Mr. Bouvier, in his Law Dictionary, under the title Representative," uses this language: "The heir represents his ancestor, (Bacon, Abr. Heir and Ancestor,' A;) the devisee, his testator; the administrator, his intestate." It seems entirely undeniable that in actions like the present the heir or devisee stands instead of, and so represents, the deceased debtor. The statute which confers the right of action is modeled upon that of 3 & 4 Wm. & M. c. 14. The object of the statute is to subject the real estate of the deceased debtor to a liability for all classes of debts left unpaid by such debtor. As before the passage of those acts the personalty could be reached by an action against the executor or administrator, who represented the deceased in respect to this kind of property, So after the act the real estate was reach. able by an action against the heir or devisee as representative of the deceased debtor in respect of the realty. The heir or devisee certainly represents the testator or intestate as obviously as the estate of such deceased party is represented by an executor de son tort under our statute, (Revision, p. 396, § 3.) In an action against such an executor, as in an action against the heir or devisee, the judgment goes only for an amount equivalent to the value of the assets which have come to the hands of the defendants. It has been ruled by this court that in an action against an executor de son tort the plaintiff is excluded as a witness by the terms of the statute. Parker v. Thompson, 30 N. J. Law, 311. The defendants in this case were sued in a representative capacity. It follows, therefore, as a matter of course, that the testimony of Pauline Joss, the plaintiff, in respect to the transactions an I statements of the deceased debtor, should have been excluded.

The competency of the other witness, Josephine Mobn, stands on a different ground. As already remarked, she was One of the devisees under the will of Fredericka, and a codefendant in this action. The query is whether the plaintiff could call her as a witness, although she stood upon the record as a party sued in a representative capacity. The language of section 4 of the statute (Revision, p. 378) seems to distinguish between the act of admitting a party to a suit, in a representative capacity, as a witness, aud the result which flows from the admission of such party as a witness in his own behalf. There seems to be nothing in the language of the statute which excludes such party from being a witness, but it is only when he is called as a witness in his own behalf that his testimony coufers compe tency upon the opposite party. This was the view taken by Chancellor Runyon in Daw v. Vreeland, 30 N. J. Eq. 576, and it seems to be a plain statement of the language of the statute, which is not changed

construction applies to all actions where the party called is really as well as nominally a defendant,—a defendant in interest, as well as upon the record. So far as appears from the record, this is the position of this witness in the present case. The circuit is advised that the testimony of the first-named witness should have been excluded, and that the testimony of the second witness was properly admitted.

DUNKLEE v. GOODENOUGH. (Supreme Court of Vermont. Windham. May 19, 1893.)

PLEADING-FORMER RECOVERY-REPLICATION AND REJOINDER-EFFECT OF Demurrer.

1. A plea in assumpsit setting forth that defendant was theretofore impleaded before a justice of the peace for not performing the iden tical promises and undertakings mentioned in the declaration, and that he recovered judgment in said action upon said several causes of action, sufficiently alleges that the judgment was on the merits.

2. A replication to a plea of former recoFery admitted a previous judgment before a justice of the peace, but averred that it was on a plea in abatement; that an appeal was taken to the county court; and that pending the ap peal, and before the term to which the appeal was taken, plaintiff discontinued said cause. Held, that the replication must be construed as a confession and avoidance, and, as such, was bad, plaintiff having no power to discontinue his suit in vacation.

3. Where a plea of former recovery sets up a previous judgment on the merits, and an averment in the replication that the judgment was merely in abatement is admitted by the rejoinder, plaintiff is entitled to judgment on de murrer to the rejoinder, though his replication be fatally defective, and the plea, on its face, good, since it necessarily appears from the whole record that the judgment pleaded is no bar to the action.

Exceptions from Windham county court; Munson, Judge.

General assumpsit by Scott Dunklee against C. M. Goodenough. Judgment overruling a general demurrer to defendant's rejoinder, and plaintiff excepts. Reversed.

To the plaintiff's declaration, which was in the common form, the defendant pleaded a former recovery. The questions considered arise upon the subsequent replication and rejoinder, which were as follows: "And the said plaintiff, as to the said plea of the said defendant, by him above pleaded, saith that the said plaintiff, by reason of anything by the said defendant in that plea alleged, ought not to be barred from having or maintaining his aforesaid action thereof against the defendant, because he says that, though true it is that the said plaintiff impleaded the said defendant before said justice of the peace for the cause therein mentioned, the defendant appeared before said justice at the time and place mentioned in said plea, and filed a plea in abatement of said writ, in the words and figures following, to wit: 'Scott Dunklee v. C. M. Goodenough. Before Royall Tyler, Esquire, justice of the

peace. And now the defendant comes and says that the writ in said suit was made returnable on the 5th day of December, 1887, at ten o'clock in the forenoon, at the office of Waterman, Martin & Hitt, in Brattleboro, in the county of Windham, and by the declaration therein contained the plaintiff declared against the defendant for money had and received by the defendant to the plaintiff's use; for money lent and accommodated by the plaintiff to the defendant; for money laid out and expended by the plaintiff for the defendant; for work and labor done and performed by the plaintiff for the defendant; for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant; for money found due from the defendant to the plaintiff on accounting; and for money due from the defendant to the plaintiff for the use and occupation of premises of the plaintiff, as by the writ and declaration more fully appears. That by agreement of the parties before the return day of said writ the same was continued to this 19th day of December, 1887, at the same hour and place. That since said continuance the defendant has craved a specification of the claim of the plaintiff upon which said suit is breught, and it is now read to him. That thereapon the defendant further says that said suit is brought to recover a demand for goods, wares, and merchandise, to wit, one sewing machine, sold and delivered by the plaintiff to the defendant, to wit, on the 16th day of October, 1883, and not upon any promissory note given in liquidation of said demand. That said sewing machine was sold and delivered by the plaintiff to the defendant in Newfane, in the county of Windham, and not in said Brattleboro. That at the time of the bringing of this suit the defendant resided, and has ever since resided, in said Newfane, and not in said Brattleboro, and that said suit should be brought and tried in said Newfane, and not in said Brattleboro. Wherefore, be prays judgment of said suit, that the same may abate. C. M. Goodenough.' And the plaintiff joined issue on said plea, and said plea in abatement was sustained by the court, and the defendant recovered judgment upon said plea in abatement, and for his legal costs, which are the same impleading and judgment set forth in the lefendant's second plea; and the said plaintiff appealed from said judgment to the next term of said county court, and failed to enter an appearance in said court us therein set forth. But he says that after the rendition of said judgment, to wit, on the 1st day of March, A. D. 1889, before said term of court, and before the commencement of this suit, and while said cause was pending on said appeal, he discontinued said cause, and notified the defendant thereof, wherefore said appeal was not entered at said term of Court as set forth in the defendant's plea; and this he is ready to verify. Wherefore, he prays judgment, and his damages | by him sustained by reason of the not performing of the said several promises and undertakings as in his declaration mentioned." Rejoinder: "And the said

defendant, as to the sald replication of the said plaintiff to the plea of the said defendant by himself secondly above pleaded, says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, the said defendant, because he says, though true it is that upon the issue joined on said plea of abatement the defendant recovered judgment upon said plea of abatement, and for his costs, as stated in the plaintiff's replication, that judgment was also rendered upon said same plea in abatement, and issue joined thereon, by the said justice, for the said defendant, as by the record still remaining in said justice court fully appears; and this he is ready to verify. Wherefore, he prays judgment if the said plaintiff ought to have or maintain his aforesaid action thereof against the said defendant."

Waterman, Martin & Hitt, for plaintiff. Haskins & Stoddard, for defendant.

TAFT, J. The questions in this case are raised by general demurrer to the rejoinder. The declaration is sufficient. The defendant pleads former recovery. He alleges in his plea, with proper averments of time, place, and court, that he was theretofore impleaded before one justice of the peace, Tyler, for not performing the very same identical promises and undertakings, each and every one of them in said declaration mentioned, and that he recovered judgment in said action upon said several causes of action, and for his legal costs. This is a sufficient allegation that the judgment was upon the merits. The allegation cannot be sustained by proof that the disposition of the case was upon a plea to the jurisdiction, in abatement, nonsuit, discontinuance, etc. It is alleged in the plea that in the proceedings before Justice Tyler, after judgment was rendered for the defendant, the plaintiff appealed to the then next term of the Windham county court, but failed to enter his appeal, whereby the judgment remained in force. Rev. Laws, §§ 1064, 1065. The plea, on its face, is good, for it shows a former recovery for the same cause of action.

It

The next question that arises is, what is the character of the replication? should be either in denial, or in confession and avoidance. It is not, in terms, a plea nul tiel record. It admits that the defendant recovered a judgment, but alleges that it was upon a plea in abatement,-an argumentative way of saying that the defendant did not recover the judgment set forth in the plea. If there was nothing more in the plea, it might be regarded as one of nul tiel record, in an argumentative form. But there is added a fact that we think makes the replication one more in the nature of confession and avoidance than of denial. It admits the impleading and judgment, setting forth that the latter was upon plea in abatement; that an appeal was taken, and a failure to enter it,—and avers that after the judgment and appeal, and before the term of the county court to which the appeal was taken, and while sald cause was pending on appeal, the plaintiff discontinued said cause,

and notified the defendant thereof, wherefore the said appeal was not entered as set forth in said plea. The plea set forth in the replication, and styled a "plea in abatement," is in reality a plea to the jurisdiction. Cunningham v. Caldbeck, 63 Vt. 91, 20 Atl. Rep. 974. The plaintiff could not discontinue the suit in the manner alleged. In Jenney v. Glynn, 12 Vt. 480, it was held that after an appeal was taken from a justice's judgment, and before it was entered in the county court, the plaintiff could not discontinue the suit. The case of Hill v. Dunlap, 15 Vt. 645, cited by plaintiff, was a case in which the discontinuance was before the entry of the case in the justice court; and in Ballou v. Ballou, 26 Vt. 673, the question was not involved, as the suits were for different causes of action, and the question of discontinuance was immaterial. It is suggested that the replication does not confess the judgment set forth in the plea; that it alleges a different kind of a judgment. It is not necessary that a pleading in confession and avoidance should admit the truth of the adverse statement absolutely, and to all purposes. It is sufficient if the pleading gives color, i. e. confesses the matter adversely alleged, to such an extent, at least, as to admit some apparent right in the opposite party, which requires to be encountered and avoided by the allegation of new matter. The plaintiff admits a judgment, but attempts to give it a more limited effect than what is claimed for it by the defendant, and then, whatever its character may be, avoids it wholly by alleging a discontinuance. The pleader, by the rejoinder, takes the same view of the matter, for he reiterates the broader scope of the judgment which is denied by the replication. See Heard, Civil Pl. p. 150. If the character of the replication is ambiguous it must be construed adversely to the pleader, and, as a traverse or denial of the plea would be good, it must be held to be a replication in confession and avoidance, for as such it is clearly bad, for the plaintiff could not discontinue his suit in vacation. In some respects the replication is more like a denial and avoidance than a confession and avoidance, i. e. it argumentatively denies the judgment, and then avoids it by a discontinuance. This the plaintiff cannot do, for one cannot deny and avoid. He must either deny, or confess and avoid; and he cannot confess and avoid, and at the same time traverse. Gould, Pl. c. 7, § 34; Com. Dig. "Pleader," G 3; Bedel v. Lull, Cro. Jac. 221; Oystead v. Shed, 13 Mass. 520. To deny the judgment would be repugnant to the pleader's own confes sion that there was a judgment, and he took an appeal, and then discontinued his suit. The pleader evidently did not attempt to plead nul tiel record. He says there was a judgment, but it was avoided by a discontinuance. The gist of the rep. lication is the discontinuance, and it is in fact immaterial whether the judgment set forth in the plea is confessed or denied, for the discontinuance in vacation was legally impossible; and the replication, for that reason, is bad, in substance, and therefore Lo answer to the plea.

The defendant, in the rejoinder, does not attempt to answer the replication, i. e. the allegation of the discontinuance of the action, but concedes that the judgment was rendered “on said plea in abatement, for his costs, and alleges that the judg ment was "in chief upon, and in bar of, said action,”—a thing impossible in law, for no judgment upon the merits could have been rendered for the defendant upon the plea to the jurisdiction, and therefore the rejoinder is bad in substance. Now, the question arises, what effect has the rejoinder upon the plea? The legal intendment of the plea is that the former judgment pleaded was rendered upon the merits, but the rejoinder shows that it was rendered upon a plea to the jurisdiction, and therefore could not have been what the plea alleges it was. The rejoinder shows that the former judgment was no bar to the action, and therefore vitiates the plea. Upon the whole record it appears that the first substantive defect is in the plea. It is an established rule in pleading that upon the argument of a demurrer the court will give judgment against the party whose pleading is first defective in substance. Gould, Pl. c. 9, §§ 37, 38. A demurrer reaches back through the whole record, and in general attaches ultimately upon the first substantial defect in the pleadings, on whichever side it may have occurred. Gould, Pl. c. 9, § 36. But the whole record must be considered, and it is the duty of the court to look to, and adjudicate upon, all the prior pleadings in the cause. Iglehart v. State, 2 Gill & J. 235.

It is suggested that if the plea in bar is good on its face, in the order of pleading, and the replication and rejoinder both bad in substance, the plea cannot be affected by what is contained in the rejoinder, although the latter contains facts which show the plea in bar lacking in substance. This would not be judging upon the whole record, for the whole record shows that the defendant has made no answer to the declaration. In its application to a case like the one at bar the rule is well stated by Mr. Gould in his logical work on Plending, (chapter 9. § 39:) "When the replication to an insufficient plea is not only defective in matter, but also shows that the plaintiff has no cause of action, ** judgment, on demurrer to the replication, must be for the defepdant, though his plea is radically insufficient; for in every such case it will necessarily appear from the whole record that the plaintiff is not entitled to judgment." So, in this case, upon demurrer to the rejoinder, judgment must be for the plaintiff, though his replication be fatally defective, and the plea, on its face, good, for it necessarily appears from the whole record that the defendaut is not entitled to judg. ment, though his rejoinder is a sufficient answer to the replication, for it appears from the rejoinder that the judgment pleaded in bar is no bar. This rule was applied in Turnor's Case, 8 Coke, 132, and stated thus: "And a difference was taken when, by the replication, it appears that the plaintiff has no cause of action. There the plaintiff shall never have judgment, although the bar be insufficient." And in

Bonham's Case, 8 Coke, 120b: "But when the plaintiff makes replication, surrejoinder, etc., and thereby it appears that upon the whole record the plaintiff has no cause of action, he shall never have judgment, although the bar, rejoinder, etc., be insufficient in matter, for the court ought to judge upon the whole record, and every one shall be intended to make the best of his own case." Rigeway's Case, 3 Coke, 52, is similar. The declaration was good; the plea bad; the replication showed that the plaintiff had no cause of action; and it was said: "And now, on the whole record, it doth not appear to the court that the plaintiff hath cause of action, wherefore the plaintiff, perceiving the opinion of the court, did discontinue his suit; but it was agreed that if the plaintiff had demurred upon the bar he should have had judgment. In Gewen v. Roll, Cro. Jac. 131, it is said: "But where the replication is to entitle himself to the action, and by the plaintiff's own showing in the replication he hath not any cause of action, there judgment shall be against the plaintiff, although the bar beill." To the same effect are Freeman v. Sheen, 2 Bulst. 94; Brickhead v. Archbishop of York, Hob. 197a; Le Bret v. Papillon, 4 East, 502; Com. Dig. · Pleader," (M.) 3, and cases there cited. The rule is as applicable to the pleadings of the defendant as to those of the plaintiff. The view that you must judge of each part of the pleading by itself, without ref. erence to the whole record, is too narrow and restricted. It would enable a party to obtain judgment in his favor, when the right, as shown by all the pleadings, was against him. If the declaration in a case is insufficient, the general rule is that the plaintiff cannot recover; but when the defect in the declaration is cured by subsequent pleading-in a case that stands upon demurrer to the replication-the plaintiff has judgment, although upon the declaration itself he would fail, for, as the court well say," upon the whole pleadings we are enabled to come at the justice of the case. Probate Court v. Vanduzer, 13 Vt. 135.

The court below held that the rejoinder was a sufficient answer to the replication, overruled the demurrer, and adjudged the rejoinder sufficient. While it is true that a poor rejoinder is a sufficient answer to a defective replication, the latter is a sufficient answer to a faulty plea; and the ruling should have been, deinurrer sustained, and plea adjudged insufficient. The judgment overruling the demurrer is reversed, and cause remanded.

BANGOR SAV. BANK v. NIAGARA FIRE INS. CO.

(Supreme Judicial Court of Maine. Aug. 13, 1892.)

INSURANCE-PROOFS OF LOSS-ARBITRATION.

1. An umpire, appointed by two appraisers mutually chosen, and who were unable to agree upon the amount of loss under a policy of fire insurance, after making an examination of the premises and estimates of his own, inquired of an experienced and disinterested painter respecting the cost of painting. In his report he

certified that such painter's cost correctly represented his own judgment. All three joined in a unanimous award and appraisal. In an action upon the policy, held, that an appraiser, in such case, has the right on any special branch of the appraisal, as an appraiser, to make use of the judgment of another skilled in that special branch, upon whom he can depend, and the valuation of that person is his if he chooses to adopt it.

2. Also, that an appraiser or arbitrator may call in the aid of a third person skilled in a special branch embraced in the appraisal, and may give to the estimate of such third person such weight and credence as he sees fit, even to the point of founding his judgment upon that estimate, provided he adopts that as his real judgment.

3. Of valuers and appraisers, as distinguished from referees and others acting in a judicial capacity.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action on a policy of insurance by the Bangor Savings Bank against the Niagara Fire Insurance Company. Plaintiff had a verdict of $1,095.39, and defendant brings exceptions. Exceptions sustained.

C. P. Stetson, for plaintiff. Baker, Baker & Cornish, for defendant.

a

WHITEHOUSE, J. Assumpsit on policy of insurance against loss or damage by fire to an amount not exceeding $2,000 on the hotel building known as the. "Bangor House." The contract in suit was one of eight policies issued by different companies on the same property, amounting in the aggregate to $15,000.

The house was damaged by fire on the 5th day of May, 1889, and it was not in controversy that the policy in suit was valid, and that the defendant corporation was liable to pay the plaintiff its proportional part of the damage, according to the terms of its contract. The amount of damage which the plaintiff was entitled to recover, and the mode of its adjustment, were the only subjects of contention between the parties.

The policy in suit contains the following, among other stipulations: "This company shall not be liable beyond the actual cash value of the property at the time, if loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by ap. praisers, as hereinafter provided; and, the amount of loss or damage having thus been determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss having been received by this company in accordance with the terms of this policy.

"In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two com pe. tent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating

separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss."

"The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required."

No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements."

Having reference to these provisions of the policy, but before any disagreement had in fact arisen with respect to the amount of the damage, the parties entered into a written agreement, in which it was stipulated that two appraisers named, duly selected, one by each party, (together with a third person to be appointed by them if necessary, to decide upon questions of difference only,) should "appraise and estimate at the true cash value the damage by fire to the prop erty," etc. Failing to agree, these appraisers selected an umpire, and the three performed the duty to which they were appointed, and made and signed a unanimous report, appraising the aggregate damage at $6,953.50. Proofs of loss were accordingly signed and sworn to by the insured and delivered to the agent of the defendant company, claiming from the company the sum of $927.40, being its proportional part of the aggregate damage as fixed by the report of the appraisers. Subsequently, however, notice was sent to the defendant by the insured that these proofs of loss were withdrawn.

Thereupon the defendant pleaded in de fense a "legal and valid award in writing" respecting the amount of damage, and introduced in evidence the written agreement for submission, the report or award signed by the original appraisers and the umpire, and the "proofs of loss" above described. A draft sent by the defendant company in payment of the sum claimed in the proofs of loss was also offered in evidence by the defendant's counsel, for the purpose of showing its acceptance of the proofs of loss, and compliance on its part with the provisions of the policy.

for fraud or misconduct on the part of the appraisers, or on other grounds, which vitiate all awards. On the other hand, it is obviously competent for the parties to modify or waive any provisions of their written contract by a subsequent mutual agreement not in writing. Wiggin v. Goodwin, 63 Me. 392; Goss v. Nugent, 5 Barn. & Adol. 65; Hall v. Insurance Co., 57 Conn. 105, 17 Atl. Rep. 356. The last-named case is precisely in point, and the court say: "The provision in the policy referred to was not designed to prescribe, and it does not intend to prescribe, any form of submission. It only gives certain leading features of the submission which were in fact substantially complied with. * But the capacity of the parties to contract could not be restricted by the policy so that they could not waive its requirements and make a submission to suit themselves, provided, of course, it was not otherwise unlawful." So far, therefore, as there is any material difference respecting the duties of the appraisers or the umpire between the provisions of the policy and the terms of the written agreement for a submission, the former is presumptively superseded by the latter, and in such a case the duties of the ap praisers and of the umpire are to be ascer tained, and their conduct examined with reference to the terms of the submission actually signed by the parties.

With respect to the conduct of the appraisers it appears that Willard Cutter, of Bangor, the umpire, had resided in that city for more than 40 years, had been a contractor and builder for 30 years, and was familiar with the prices of labor and materials in Bangor. In regard to his action as an appraiser he testified as follows: "I come to painting now. I partially figured that myself, and then I thought I would get a painter to figure it. * To a certain extent this is what I got from Marston & Gorham. These are the figures which I adopted as my own." He further testified expressly that the figures made up by him after obtaining this information were his own judgment of the actual damage to the property. There was no claim that Mr. Cutter had not acted throughout with entire disinterestedness, and from an honest purpose and desire to reach a just and correct appraisal. His estimate of the aggregate damage had been adopted by the original appraisers as the amount of the unanimous award which was made and

Upon this branch of the case the presiding judge said to the jury:

"I am requested to give you this instruction: "That an appraiser in the case here has the right on any special branch of the appraisal, as an appraiser, to make use of the judgment of another skilled in that special branch, upon whom he can depend; and the valuation of that person is his if he chooses to adopt it.' I cannot give you that instruction. I do not think I can change the instruction I gave yon upon that subject. If, after getting an opinion,-if after getting an estimate,-the appraiser does not treat it as his own judgment, but acts upon it as the judgment of