
    Lovering, Adm’r, v. McKinney & Williams.
    Where the defendant, in the first instance, craves oyer of the plaintiff’s letters of administration, it will be in time to plead to the capacity of the plaintiff as soon as the letters shall liavo been filed.
    Where tho succession was opened in 1S37, in the county of Shelby, where the deceased resided at tho time of his death, and was in progress of administration in that conni.v «t the time. it. was held that the Probate Court of Matagorda county had not jurisdiction fin ISil) to grant letters of administration of the same estate to another; and that the letters so granted were consequently void. (Note 73.)
    Where the court below improperly overrules a plea which discloses a good defense, and afterwards improperly admits the same defense in evidence under the general íssup, the judgment will not bo reversed because of the improper admission of the evidence under tlie general issue, where the result, finally attained, appears from the statement of facts to bo in accordance witii the law of the case.
    Appeal from Harris. This suit was instituted to tlie Spring- Term, 18-12, by Thomas Harvey, (for whom the appellant was afterwards substituted,) as administrator of John W. Buckner, deceased, against (he appellees, oil a promissory note made by them, payable to Buckner. Oil tlie petition was indorsed, without date — unless the date of the filing of the petition be imputed to it—
    “And tlie defendants deny all and singular the allegations in the plaintiff’s petition contained. “JONES, for Def'ts.”
    The original citation was returned, served on both defendants. At the Spring Term, 1842, there was no order, except a short entry of “judgment by default.” At the Fall Term, 1842, the defendants craved oyer of tlie plaintiff’s letters of administration, and pleaded the statute of limitations. The cause, was then continued from term to term until the Fall Term, 1846, when tlie death of I-Iarvey ivas suggested, and the suit “revived in tlie name of the representatives of jolm W. Buckner, deceased.” At same term, after continuance of the cause, the plaintiff, for tlie first time, filed liis letters of administration. At tlie next term, May 5,1847, the defendants pleaded, in substance, that the original plaintiff, Ilarvey, was not the administrator of Buckner; that the Probate Court of Matagorda, which issued letters to him, had no jurisdiction, for that Buckner dietl testate in 1837, and in the same year his succession was opened in the county of Shelby, where he resided at the time of liis death, by tlie issue of letters testamentary to his widow, and tlie estate was in progress of administration by the executrix when the plaintiff applied and obtained his letters in 1841. The same plea was repeated as to Lovering. On exception of the plaintiff, these pleas were overruled. There was also a general denial formally filed. There was a trial, and the court below appears to have admitted evidence under the general denial (the plaintiff excepting) that the plaintiff Harvey was not the lawful administrator of Buelcuer. And there was a judgment for the defendants. Motion for new trial; statement of facts; and many points reserved. But it was conceded that the plaintiff could not recover, if the plea to his capacity as administrator was filed in proper time and in due order of pleading. There was a certificate of the appointment of Lovering on the 28th .day of September, 1846, administrator of Buckner’s estate, by the Probate Conft of Matagorda county.
    
      W. Alexander, for appellant.
    Oyer should have been demanded before issue joined. (Dallam, 456.) As to what was the correct order of pleading. (Id., 451.) AIL of tho defeases should have been filed at once. (Id., 461.) Sn«h was the practice anterior to tlie declaratory act “ to regulate proceedings in the District Courts.” (Hart. Dig.. 244, art. 68S, sec. 29.) By that act tlie defendant in his answer may plead “as many several matters of law or fact as he shall think necessary for liis defense, and which may be pertinent to the cause, provided that he shall tile them at (he same time and in due order of pleading.” In order to take the benefit of the act, the requirements of the proviso or condition of the aet must be conformed to; the matters of defense must he filed simultaneously and in due order of pleading. (1 Tex. B., 42 ; Id., 653; Id., 203 ; Id., 147; Id., 3G4; 2 Tex. R., 541; Id., 485; Id., 370; Id., 531; Townes v. Sayre, 4 Tex. II., 28.)
    The foregoing- arc the decisions o£ the Supremo Courts of the Republic and State of Texas. The authorities of Louisiana are to the same effect. (5 M. S., 344; 2 Id., 387; 3 Mart. R., 37S; I La. It., 113; Id., 283; 4 Id., 328.)
    The common-law authorities also sustain the positions of the appellant. (Stephen on PI., 80, 88, 430; 0 Bac. Abr., 328; 3 Oowen’s Treatise, 208; 2 Dali. R.,100; 1 Pet. R., 647; 4Id., 480; 8 Wheat. R., 071; 2 M. & S. R., 553; 4 Biackf. R., 469; 1 Bibb R., 571; 2 Marsh. R., 20-1: 7 J. J. Marsh. R., 2i 9; 15 .Johns. R., 208; 4 Port. R., 441; 1 Hill (S. C.) R., 153; 3 Rich. R., 285; 1 Bail. R., 540; 2 Id., 461.)
    
      John B. Jones, for appellees.
    I. The plea of debt was a plea in bar and not a plea in abatement. (1 Cliit-t. PL, 525, 520; Story on PL, 137.)- Ne ungues executor is a plea to the merits. (0 Ala. R., 509; Slatting v. Williams, 1 Pike R., 349 : Codding- v. Whitaker, 5 Biackf. R., 470; 1 Supp. U. S. D., 815, Ho. 541; 1 Sannd., 274, noto 3; 3 McCord; 2 Brevard; Worthington v. McRoberts, 7 Ala. R., 814.)
    II. But appellees insist that under (he oyer craved the plaintiff showed that lie had no right and that he was not administrator.
    III. But under the general issue the plaintiff was bound to prove that ho was administrator. The plea put in issue every material fact; and certainly no fact could be more material. Oiu-general denial is more than the general issue at common law; and though the defendant could not, under that plea, introduce new affirmative matters in evidence, he would he permitted to reínit the evidence adduced by the plaintiff. Examples without number might be oiled in support of this proposition, but it is so apparent upon principle and reason that none are deemed necessary.
    IV. The appellant relies on the presumed fact that the memorandum, in the shape of a plea, indorsed on the petition was filed before the plea ne ungues administrator. There is nothing in the record to show when that in-dorsement on the petition was made. And if the fact that it is there raises any presumption xt all, that presumption would be that the indorsement was made before the petition was filed. This presumption is entirely refuted by the whole record.
    But even if it be a plea and filed at the time contended for by appellant, it would not have the effect sought to bo attached to it by appellant. At the first term, the defendants, by craving oyer of the letters of administration, notified the plaintiff that his right to sue in tliat character was questioned; upon giving oyer, the very paper filed by plaintiff, to wit, the record from Matagorda, showed he had no rig-lit, and as soon as oyer was given the defense was filed.
   Wheblee, J.

It is insisted by tlio appellant that the defense cannot be entertained, because not pleaded in time.

The. plaintiff made profert of his letters of administration, omitting, however, to state when or where they were issued; and on oyer asked by the defendants lie failed to exhibit ins letters, and either neglected or refused to do so until years ailer. The delay of the defendants in pleading- appears to have been occasioned by that of tiie plaintiff, in giving oyer of liis letters of administration. And upon the facts and pleadings disclosed by the record it is by no means clear that the defense was not pleaded at as early a period as practicable, or, at least, as the plaintiff, under the circumstances, had the rig-lit to require.

It very satisfactorily appears that the deceased died testate iá 1S37, and in that year his succession was opened in the county of Shelby where he resided al, and for some time previous to his death; that the estate was in progress of administration by his widow, as his executrix in that county, when the plaintiff applied (o the Probate Court of Matagorda county, and obtained letters of administration on the estate, in 1841. In his application he states no fact which entitled him to administer, and, in his subsequent applications to the court, made from year to year, to obtain extentions of the term of his administration, lie discloses no right in himself, as creditor or otherwise. He made an inventory, which, however, embraced no property but the note in suit in this case, and he made affidavit that the deceased died intestate, and that the note in question constituted all his estate within the plaintiff’s knowledge, when, at the same time then' was evidence in the records of the Probate Court of the county that the widow of the deceased iiad qualified as executrix of his will in the county of Shelby, and her authority had been recognized by the Probate Court of Matagorda county, in executing an order of the court in Shelby, obtained by her, for the sale of real estate of the deceased, situated in the county of Matagorda.

Note 73. — Fisk v. Norvell, 9 T., 13; Hurt v. Horton, 12 T.,285; Francis v. Hall, 13 T., 189; Grande v. Herrara, 15 T., 533; Grande v. Chaves, 15 T., 550; Burdefct v. Silsbee, 15 T., 505; Soya v. McCallister, 18 T., SO; Wardrup v, Jones, 23 T., 489.

It does not appear in what manger or by what right the plaintiff obtained possession of the note sued on. The sole object of his administration appears to have been to enable him to collect it; and it was commenced and conducted in a manner calculated to east suspicion on the integrity and fairness of the proceeding.

It is, however, sufficient for the disposition of the case that, the succession having been opened, and being in the progress of administration in the county of Shelby, where the deceased resided at the time of bis death,, the Probate Court of the county of Matagorda liad not jurisdiction to grant letters of administration on the estate to the plaintiff, and the letters so granted were consequently void, and conferred on him no right to maintain the notion.

The result attained by the District Court was in accordance with this conclusion, and is therefore, upon the whole, correct; and in this view the rulings of the court during the progress of the cause are wholly immaterial.

We are of opinion that the judgment be affirmed.

Judgment affirmed.  