
    Pope and Others v. Oliver Towles, Who Was Executor of Thomas Towles, Who Was Executor of Nicholas Lewis.
    Wednesday, October 19. 1808.
    Abatement of Suit — Death of Defendant — Rights of Executor. — If a suit in Chancery abate by the death of the defendant after answer filed, and the cause set for hearing; it seems, that his executor cannot regularly demur to the equity of the bill, or plead any matter which the testator himself might not have pleaded in that stage of the proceedings; but, if no objection be made, and the parties afterwards proceed to take depositions, it will be an implied waiver of any objection to such irregularity.
    An appeal from a decree of the Superior Court of Chancery, for the Richmond District, pronounced by the late Judge of that Court, dismissing, with costs, the bill of the complainants.
    *Nicholas Lewis, being indebted by bond to John Wily, the latter brought suit thereon, in the General Court, and employed Mr. Duval, an attorney of that Court, to conduct it. Pending the suit, he gave Mr. D. (to whom he is stated to have been indebted,) an order on Lewis for 12,0001bs. of tobacco, which appears to have been the principal of the debt mentioned in the bond. On the same day, he drew an order on Duval for 4,5001bs. of tobacco, in favour of Mr. Pope, and at subsequent periods it is alleged that he drew two separate orders on him, in favour of the two other complainants; all which Mr. Duval accepted conditionally.
    Wily’s order on Lewis is not pretended to have been accepted by him, or even presented to him, in his life-time, and probably was only meant as an authority to Mr. D. to receive the debt of Lewis, when recovered, and to pay himself out of it. Lewis died after a judgment was confirmed in the office, but before the ensuing tei;m, as is alleged. The Clerk probably not being informed of his death, the judgment was entered up, as a final judgment of the October term of 1783. No abatement of the suit was ever entered, nor any execution sued out upon it, nor any scire facias to revive it, as far as appears. It stands as a regular judgment of that Court; though, if the fact as above stated be true, liable to have been reversed by a writ of error, coram vobis, if applied for in due time. The bill states, that Thomas Towles, the executor of Lewis, being informed of the above circumstances, often promised Mr. D. that if he could be satisfied the tobacco ‘ ‘recovered by the said judgment,” was not due on account of gaming, he would discharge the same, provided he should recover certain slaves of one White, for which he had brought suit; and that he gave the like assurances to Mr. Pope, and to Chiles, another of the plaintiffs, if they would wait with him till the event of the suit, against White, should be known, and he should recover the slaves; to which the complainants and Duval agreed: after which, the latter procured an affidavit of one Charles Yan-cey, and the certificate of one William Pettit, each shewing that the tobacco due on the bond, was on a *fair contract, for value received; of which he gave notice to Thomas Towles, the executor, who thereupon promised to pay the tobacco, if he should recover the slaves of White; which he did, prior to the year 1788: after which he refused to pay the tobacco. “Whereupon, the complainants directed the said D. to commence an action for the recovery of the said tobacco, in the name of the said John Wily', but for their benefit, as Duval’s own claim against Wily was then otherwise discharged.” That he did bring an action accordingly, In which sundry depositions were taken, which, with sundry other papers are annexed to the bill, and prayed to be taken as part thereof; on some of which, with the indorsations thereon, they relv to shew, that the said Thomas Towles, the executor, after Wily had become insolvent, and after he knew it, (which they aver to be facts,) fraudulently, and in order to defraud the complainants, procured from Wily an order to dismiss that suit, in consideration of a horse, not worth 251. “all which is contrary' to equity,” &c. They then proceed to interrogate him, whether he did not promise to discharge the tobacco due on the said bond, for the use of the complainants, in I case it should be proved that the same was not given for a gaming debt, &c. and whether the said bond was given for a gaming debt? Whether he had not recovered the slaves; and whether the complainants had not waited the event of that suit as by agreement? Whether the depositions were fairly taken ; and whether they do not contain the truth? Whether Wily was not insolvent, and known to him to be so, at the time he procured from him the order for dismissing the suit brought in his name? And, after some other questions, the bill concludes with a prayer for particular and general relief.
    The answer of T. Towles states, that he recollects W. D. called at his house some time between the years 1781 and 1785, on the subject of the bond due to Wily, by his testator Lewis; that, as well as he can now recollect, (May, 1798,) Duval attempted to convince him the bond was not *due for a gaming consideration; but does not recollect that he promised to pay the same, if he recovered the slaves from White, though he might have said that if they were recovered, there would be enough to pay the bond; nor does he recollect having promised the complainants, at any time afterwards, that, if they could convince him the bond was not for a gaming consideration, he would discharge it, if they would wait, &c. nor did he, after seeing Yancey’s affidavit, and Pettit’s certificate, promise that he would pay the bond; of which he is convinced, because he does not recollect, that he was, any time, before or after, convinced that the bond was not given for a gaming consideration; that, when he made the payments to Wily, he knew nothing of his insolvency, and believed him to be justly, and solely entitled to receive the payments, if any person was entitled to the amount due on the bond; that he made several payments, exclusive of the horse, in money and tobacco; that he always suspected the bond to have been given for a gaming debt, but was not convinced of it until some time after the payment to Wily, as will appear by the depositions of A. Parker and T. Davenport, annexed; to which he refers as a part of his answer; as also T. Wash’s deposition; all of which were taken in Wily’s suit against him ; and that he does now believe the bond was given for a horse lent to game with, as stated in those depositions; that he does not know that Wily was insolvent when he gave the order to dismiss the suit; and is informed he carried several negroes out of the State when he removed; admits he recovered the negroes; believes Pettit’s certificate was intended to deceive him, inasmuch as it differed from a deposition made by him, which, however, does not appear in the record.
    To this answer the plaintiffs replied generally, in June, 1798, and commissions were then awarded the parties to take depositions; but no depositions appear to have been taken in the cause, at that time, except those of William Burrus and Anthony Hew, both of which relate to a transaction between Wily and Burrus, in 1782, in which, Hew *was Wily’s security for about 251. which he was afterwards obliged to pay with interest, in 1784, 1785, and 1786; after which New states, that he made frequent inquiry, and understood and believed that he continued insolvent. And in March, 1799, the cause was set for hearing on the plaintiff’s motion.
    On the 5th day of March, 1801, the suit was abated by the death of the defendant, Towles; a subpoena to revive was awarded; and a bill of revivor filed against Oliver Towles, executor of the former defendant, Thomas Towles, deceased.
    The bill prays, that the suit may be revived against him, and that the whole of the proceedings may stand as against him, as in the same state and light, as they stood against Thomas Towles, in his lifetime, and that the complainants may have the same relief against him, as against his testator, un'ess the said Oliver shall shew cause to' the contrary.
    To this bill of revivor, the executor, Oliver Towles, appeared, and put in a demurrer, plea, and answer; to the admission of which no objection appears to have been made. The Chancellor dismissed the bill; and the complainants appealed to this Court.
    Warden, for the appellants, contended; 1st. That the demurrer and pleas of Oliver Towles, came in too late to be received and made the grounds of a decree, after an answer by his testator, containing no such matter, and after the cause had been once set for hearing. 2d. That it was necessary to resort to a Court of Equity, to obtain a discovery from Thomas Towles, whether he had recovered the negroes from White, or not; therefore, so much of the demurrer as objected to the jurisdiction of the Court, would not avail; that the plea of the act of limitations could not be sustained, because this s'uit was instituted the moment the action at law of Wily v. Towles was dismissed ; that the act of frauds could have no effect, because Towles was not called on to pay out of his own estate; and that the statute against gaming could not avail, because Towles ^promised to pay the mone3, if proof were exhibited that it was not a gaming debt; and the proof to that effect was very abundant.
    The Attorney-General, for Pope, insisted, that as the bill expressly charged a promise by Towles to Pope, which the answer did not deny, but only evaded, there ought to have been a decree in Pope’s favour; especially as Towles had recovered the negroes from White, in which event he was bound to pay; and had, moreover, by his promise of payment, prevented recourse to Wily; that the conduct of Towles, in paying Wily himself, after he was cautioned against it, ought to subject him to the payment of the money out of his own estate. On the point of the demurrer and pleas, he cited Mitford’s Pleadings, 31, 77, 114, 112, 107.
    Williams, for the appellee, relied on the following points: 1st. That the promise stated in the bill was never made by Thomas Towles, and, even if it had been, that it was not such a one as ought to bind him; it being a verbal promise made by an executor, and the object of the suit being to subject him to payment out of his own estate. 2d. That the claim is barred by the act of limitations, if it ever did ex-1st. The promise, as charged, was made in 178S; the suit of Wily v. Towles, was dismissed in 1791; and this suit brought in 1797. 3d. That if the appellants have any claim, the remedy is purely at law, and not in equity; and 4th. That the bond from Lewis to Wily, having been given for a horse, clearly proven to have been lent to game with, at the time of playing, was void bv the act to prevent unlawful gaming.
    Friday, November 4. The Judges pronounced their opinions and decree.
   JUDGE TUCKER,

after stating the case as above, proceeded as follows.

The first point stated by the appellant’s counsel, as a ground of complaint against the decree, . is, that the demurrer *and pleas of Oliver Towles, the executor of Thomas, came in too late to be received, and made the grounds of a decree, after an answer by his testator, containing neither; and after the cause had been once set for hearing.

As this appears to me to be an important point relating to practice, I shall consider it, before I proceed, to the other questions relating to this cause.

If a suit abate by the death of a defendant, before he has put in his answer, and thereupon a subpoena to revive is issued against his executor, it would seem, upon principle, (and I make no doubt the practice is according thereto,) that the executor is entitled to defend himself in any and every way that his testator could have done. We are then to inquire what defence the testator, Thomas Towles, could have been admitted to make after answer filed, a general replication, a commission to take depositions awarded, and executed; publication of those depositions made; and the cause set for hearing thereupon? I presume, no further defence could be admitted, at this stage of the proceedings, unless some new matter utterly unknown to the defendant at any former period, or stage of the proceedings, should have been discovered by him, since the last step which had been taken in the cause.

Upon suggestion of this new matter, in the nature of a plea puis darrein continuance at ccmmon law, he might, I presume, be admitted to plead the same, if proper for a plea, or to file an amended answer, stating the new matter thus discovered, but nothing more: as in the case of Bacon v. Lewis, senior, (during the present term,) where the defendant, the executor, was permitted, after the cause was set for hearing, to file an amended answer, in consequence of his having discovered a memorandum, written by his testator with a pencil, in an old pocket-book, of which he had no knowledge before. A demurrer, which always lies to a bill for the defects aj parent upon the face of it, would then appear to be inadmissible in such a case, and so would a plea, or answer, as to any matter which the defendant might or could have offered in his defence before. ''Upon these grounds, I conceive the executor had no right to demur, plead, or answer to the bill, for or on account of any defect, or cause, of which the testator, Thomas Towles, might have availed himself, in either of those modes of defence, before the cause was set for hearing. But, this objection, like every other, may be removed by consent of the opposite party, either express, or necessarily implied. There is no express consent, nor even leave of Court, given to the filing of the demurrer, plea, and answer filed by the executor, Oliver Towles, to the bill of revivor. But there is, in the record, what, I conceive, concludes the plaintiffs, the now appellants, from making any objection thereto, in this Court. The subpoena to revive was executed, August 4th, 1801, and the answer of the executor was sworn to, April 2d, 1802; the time of filing it does not appear; but, six days after, we find the deposition of William Duval, taken in Richmond, in the suit between the complainants, and Oliver Towles, the executor; on which occasion, both Mr. Pope, the complainant, and the defendant, appeared to have attended, and examined the witness. Alexander Parker’s second deposition, appears to have been taken in the same manner, at Fredericks-burg, July the 6th, following; and the cause was not heard till the 26th of September, 1803, and no objection whatsoever appears in the record to any, or either, of these proceedings. I think, therefore, the plaintiffs must be considered as assenting, or at least, waiving all objections, to the proceedings below, subsequent to the return cf the subpoena to revive; and, therefore, that it is too late to make the objection here.

But, suppose it were otherwise, and that the cause now stood upon the original bill, answer, exhibits, and depositions. It is difficult to conceive how an order, drawn by Wily, on Nicholas Lewis, which was neither accepted, nor even presented, to pay to his attorney a debt, for which he had actually brought suit, should attach upon Lewis’s executor, so as to make him liable, further than the bond itself might make him so. It is still more difficult *lo conceive how that executor could be made responsible for the amount of orders not drawn upon his testator, (or known to him,) but upon the drawee’s own attorney, who had the conduct of the suit against Wiiy, and probably, (as the general practice is,) had the bond in his possession at the very time these orders were drawn.

If it had been Wily’s intention to have transferred the debt to Duval, why did he not assign the bond itself to him? The answer might be found in Duval’s deposition ; but I shall not notice it, because that deposition was not taken till after the suit was revived; and I am now considering the case as it stood before. As to all that passed between Mr. Duval, M.r. Pope, and the executor, Thomas Towles, as charged in the bill, it relates only to the payment of the judgment, which had been entered up by mistake, after Lewis’s death, or of the bond: not a word is said about these orders. Towles’s promise amounted, then, to no more than what the law itself would compel him to perform, viz. to pay the bond, if not founded upon a gaming consideration, provided he should have assets, which he admitted would be the case if he should recover the slaves. The complainants evidently understood it so; for they allege that they directed Mr. Duval to bring suit upon it, after Towles recovered the slaves, and still refused to pay the bond. Suit was brought; but in the name of Wily, the original obligor; why did they not, then, get an assignment of the bond, if the tobacco due thereon, belonged to them? But, they charge that the suit was brought for their benefit. But they do not charge that Towles knew of that matter, otherwise than by referring to Mr. Duval’s deposition, annexed to the bill, and prayed to be taken as part thereof. The defendant’s answer, “that at the times he made the payments to Wily, he believed him to be justly, and solely entitled to receive them, if any one was,” appears to me to contain a sufficient answer to a charge thus indirectly made, and of which there is no proof whatsoever, except that deposition taken in a suit at common law, between Wily, plaintiff, *and Towles, defendant; but whether upon the bond in question, or any other, does not appear; there being no copy of any part of the record in that suit, except the dismission of it at the plaintiff’s costs. The depositions taken in that cause, though annexed to the bill, as exhibits, and prayed to be made a part of it, certainly can be no evidence against Towles in this cause, without something more to substantiate them. The answer then stands wholly uncontradicted in every particular; even as to the defendant’s knowledge of Wily’s insolvency, if that were the fact. Taking the case then as it stood at the time the suit abated, I am of opinion that the bill ought to have been dismissed. But, if the irregularity of the proceedings, after the suit was revived, be cured by the complainant’s consent, necessarily implied from the circumstances before noticed, I can entertain no doubt that the bond was given for the value of a horse lent to game with, at the time of playing, and therefore void, under the statute against gaming; and that there is nothing in this case to take it out of the statute; consequently, that the decree of dismission ought to be affirmed.

JUDGE ROANE.

There is no error in the decree; and it ought to be affirmed.

JUDGE ELEMING.

It appears by the depositions of Alexander Parker and Thomas Wash, that the bond executed by Nicholas Lewis to John Wily, in August, 1781, conditioned for the payment of 12,000 lbs. of tobacco, (which bond is the foundation of this controversy,) was given on a gaming consideration, (of which Thomas Towles, executor of Lewis, had al-waj's a strong suspicion,) being for a horse worth about 121. or (at that time) about 3,0001bs. of tobacco, and lent by Wily to Lewis for the express purpose of gaming; with this condition, that, if the latter lost the horse, he should pay him 12,0001bs. of tobacco,, which being the case, he, *next morning, with Samuel O. Pet-tus, and Gabriel Poindexter, his securities, executed the bond to Wily.

Whatever irregularities may have taken place in the proceedings in Chancery, subsequent to the revival of the suit against the appellee, as executor of Thomas Towles, the case being rotten in its foundation, cannot be supported. I am therefore of opinion, that the bill was very properly dismissed, and am for affirming the decree, which is the unanimous opinion of the Court. 
      
       Laws Virginia, 1794, c. 96.
     