
    
      John R. Thames & wife, admr. & admx. v. W. H. B. Richardson.
    
    
      Profert of the letters of administration is never necessary except "where the cause of action accrued to the intestate or testator.
    A special demurrer is not an issuable plea.
    2d McMull." 169. 506. rwovpo fir
    3d McC. 371 '
    
      Before O’Neall, J. at Sumter, Spring Term, 1849.
    REPORT OP HIS HONOR THE CIRCUIT JUDGE I
    This was an action of debt on a note under seal, payable, either to the estate of the intestate, or to the plaintiffs as administrator and administratrix of the estate of the intestate. The defendant did not plead ; an order for judgment, for want of plea, was made. The case was called on the inquiry docket, and an order of transfer on the usual terms made. The defendant filed a special demurrer; one of the causes assigned, and that altogether relied on, was, that profert had not been made of the letters of administration. The plaintiffs moved to strike out the demurrer, and restore the case to the inquiry docket, on the ground, that it was not an issuable plea, under the 2d rule of Court. In lsf Chitty’s Plead, it is said, “ when the defendant, being under the terms of pleading is-suably, pleads a sham plea, or demurs for want of form, judgment may be signed.”
    I*1 McFarland v. Dean, and Moore v. Burbage, it was held that on a special demurrer, the judgment was “ that the party against whom it was pronounced should plead over or amend on payment of costs.” This placed a special demurrer on the footing of a dilatory plea, and much more here than in England should it be held not to be an issuable plea. If the note was made payable to the plaintiffs, as administrator and administratrix, this was a mere descriptio personee, and 'profert was unnecessary. Seabrook ads. Williams, admr. The same rule must also prevail, if the note be to the estate of the deceased, and of course made after his death. In such case it might be necessary to allege and prove that the single bill was made to the plaintiff by the name and style of the estate of the deceased: but profert of the letters of administration is in no case necessary, save when the cause of action belonged to the deceased, in his life time. The special demurrer was, at best, a mere objection for want of form, and did not go to the merits. It was therefore not an issuable plea under the 2d rule of Court, and was struck out. The plaintiffs proved their case, and took a verdict on the inquiry docket.
    The defendant moved the Court of Appeals to set aside the verdict and to reverse the order of his Honor, striking out the demurrer:
    
      5 Dow. & Ry. com.L Rep '345.
    1st. Because his Honor erred in ordering the demurrer to be stricken out, and refusing leave to the defendant to plead thereupon.
    2d. Because his Honor erred in ruling, that where plain tiff suing as administrator omits to make profert of his letters testamentary, the defendant must file his special demurrer before the rule to plead expires, and if he fail to do so that it is a waiver of all exceptions to the declaration for that cause.
    
      Spain, for the motion.
    
      Dyson, contra.
   Evans, J.

delivered the opinion of the Court.

If the note was payable to the plaintiffs, on a contract made with them, then they did not sue in their representative character, and profert of their letters of administration was unnecessary. It would be equally unnecessary if the note was payable to the estate. The plaintiffs, by proper averments, must shew their title to the note, and that they were entitled to receive the money. Profert is never necessary except where the cause of action accrued to the intestate ox testator. This shews that even if the demurrer had been putin before the order for judgment by default was given, it could not •have availed the defendant. But on the 2d ground 1 think the Circuit Court was equally right in ordering the demurrer to be stricken out. Under the 2d rule of Court where a case is on the inquiry docket, for want of plea, the defendant may vacate the judgment on motion, “ on payment of the plaintiff’s costs in obtaining such order, the defendant at the samez time pleading an issuable plea and submitting to such terms as the Court upon the merits shall see fit to impose.” An issuable plea I suppose must mean such plea as tenders, or necessarily tends or leads to, an issue on the merits of the case, either of law or fact. It is not a plea which produces mere delay. The case of McFarland v. Dean, quoted by the Circuit Judge, shews that a special demurrer does not conclude the case. If it be to the declaration, the plaintiff will be allowed to amend on payment of costs; and if it be to the plea, the defendant is ordered to plead over. In the case of Lawtitles v. Gaillard, it was decided in the King’s Bench that the defendant when under the terms of pleading issuably, cannot demur specially to the replication, and if he does, the plaintiff may sign judgment. Abbott, C. J. said, “ where the party has obtained time on the terms of pleading issuably, and by his plea fails to bring the merits of the case, or some fact or principle of law arising upon the facts, in issue, he does not comply with the order.”

We think it clear that a special demurrer is not an issuable plea, and that the Circuit Court was right in ordering it to be stricken out.

The motion is dismissed.

Richardson, J. — O’Neall, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion refused. J  