
    Elias F. Grinstead et al. v. Jacob F. Fonte.
    1. Executor and administrator: survivorship. — The legal title to a bill single, payable to two joint executors, upon the final settlement and discharge of one, is vested in the other, and he may maintain suit on it in his own name; and it makes no difference, in this respect, that the executors gave separate bonds, each administering a portion of the assets separately from the other, and that the bill single was taken by the discharged executor in the course of his separate administration.
    2. Same : effect of final settlement. — The mere settlement of a final account, by an executor, does not discharge him from his office as trustee in respect to matters not embraced in the account; and he may afterwards maintain a suit as executor, to enforce the collection of choses in action due to him in his trust capacity.
    3. Pleading. — Under the new Pleading Act of 1850, the defendant is not bound to state his defence specially in all cases ; but may plead the general issue as at common law.
    IN error from the Circuit Court of Lawrence county. Hon. John E. M‘Nair, judge.
    The defendant in error, as executor of one T. Y. Grinstead, sued the plaintiffs in error as makers of a bill simple, dated 2d January, 1852, and payable to the plaintiff in error and one Hil-liard, jointly, as executors of said Grinstead. The complaint showed that Hilliard had, since the execution of said note, resigned his letters testamentary, and made a final settlement and been discharged.
    The plaintiffs in error filed two pleas as follows:—
    1st. And the said defendants, for answer to said complaint, say they are not indebted to the said plaintiff as therein alleged and claimed by him
    2d. And the said defendants, for further answer, say they are not bound to pay to plaintiff tbe amount of said bond sued on, because they say tbat said plaintiff and said John H. Hilliard, were appointed executors of T. Y. G-rinstead, deceased, at tbe July term, A. d. 1847, of tbe Probate Court of Lawrence county, and entered into a joint bond in tbe sum of $100,000, as sucb executors, witb security, under tbe order of said court; and tbat at tbe December term, 1847, of said court, upon petition of some of tbe legatees, said executors were ordered to give additional security; and tbat at tbe January term, A. D. 1848, of said Probate Court, tbe said executors gave new bond, witb other security: tbat is to say, tbe said Hilliard gave a several bond as executor as aforesaid, in tbe sum of $50,000, witb security, and tbe said plaintiff gave a several bond, as executor as aforesaid, in tbe sum of $50,000, witb security; and tbat tbe said executors tbereafterward, were in all things, except form, separate representatives of said estate, independent of each other, and not liable for each other’s acts about tbe estate. Tbat tbe bond here sued on was actually made to and went into the bands of said Hilliard, as executor, as aforesaid, as a part of tbe assets of said estate, for which said Hilliard was liable on bis several bond. Tbat, at tbe January term, A. D. 1853, of tbe said Probate Court, tbe said John H. Hilliard made a final settlement of bis accounts, as executor, and was discharged. Tbat by tbe decree s.o discharging him be was directed to band over to a receiver, therein appointed by tbe court, tbe uncollected assets in bis bands, to be kept by said receiver until tbe further order of said court; and tbat in pursuance of said order, be delivered tbe bond sued on to said receiver; and tbat said receiver has never been ordered to deliver tbe same to said plaintiff, but is now entitled to tbe possession and custody thereof; and that said bill never came to tbe bands of tbe said plaintiff, from said receiver, in tbe course of” bis administration as executor. * * * Tbat at tbe July term, A. D. 1853, of tbe said court, tbe said plaintiff made a final settlement of bis accounts as executor, as aforesaid, by which it appeared there was a balance due' by him of $3,262, after deducting bis commissions, and tbat said final account was received and confirmed, and tbe said balance ordered to be paid to tbe legatees of said Grinstead; tbat tbe bond sued on was not embraced in said final account, and was never administered on or accounted for by him, and that be has obtained possession of tbe same since bis said final settlement, without any legal order from said Probate Court, and not in due course of administration, and that neither he nor said Hilliard has ever paid to the said estate any thing on account of said bond; that both said Hilliard and said plaintiff are now discharged and freed from all further liability to said estate, except for the balance found to be due' against them on their said final settlement; and that no other further administration has been taken out on said estate.”
    Defendants also filed a third plea, relying upon the matter set up in their second plea.
    The plaintiff demurred to all the pleas, and his demurrer was sustained. The defendants failing to plead further, judgment was rendered for the plantifffor the amount of said bond and interest; and from this judgment the defendants sued out this writ of error.
    
      Freeman and Dixon, for plaintiffs in error,
    Cited Henderson v. Winchester, Opinion Book G. 211. See 31 Miss. R. 290.
    
      W. P. Harris, for defendant in error,
    Cited Henderson v. Winchester, 31 Miss. R. 290; Cfriffith v. Frazier, 8 Cranch, 9; 12 S. & M. 106; 7 How. 138; Williams on Ex. 209, 527, 778.
   Haítdy, J.,

delivered the opinion of the court.

This was an action upon a writing obligatory, brought under the Act of 1850, in relation to pleadings in actions at law.

The defendant below pleaded, among other pleas or answers, that he was not indebted to the plaintiff as alleged in the complaint. The other pleas went to the right of plaintiff to sue in virtue of his power as executor of the estate of Thomas Y. Grinstead.

The plaintiff filed a demurrer to all the pleas which were sustained, and judgment rendered thereupon for the plaintiff; the defendants failing to answer further.

We think it manifest that the demurrer was properly sustained as to all the answers except that generally denying the indebtedness.

It is contended, in behalf of the defendant in error, that that answer is contrary to the spirit of the Act of 1850, because it leaves the particular matter of defence,, upon which the defendant might rely, entirely uncertain, and without notice to the plaintiff. That is true. But the question is, whether that evil, which existed in the common law forms of pleading, was intended to be remedied by the Act of 1850.

The forms of pleadings were clearly intended to be abolished by that Act. But the objection, on the ground of uncertainty, does not pertain to matter of form in pleading. That is an objection to matter of substance, and is perhaps the only substantial defect in the system of pleadings at common law. It is the objection to that system which has been most urged; and it is scarcely to be supposed that, if the legislature intended to remedy the defect by the Act of 1850, it would not have been done in terms not to be mistaken.

Upon examination of the statute, we find no provision which could properly be held to forbid such general modes of answer as would amount, at common law, to pleas of the general issue; and we do not feel authorized to say that such, a change was intended to be made. •

If the answer, then, amounts to what would be a good plea of the general issue at common law, or if, without regard to the form of the action, it shows a defence which, if established by any of the rules of evidence known to the law, would defeat the action, we think it is not prohibited by this statute.

Under this view, the judgment sustaining the demurrer to this plea is erroneous, but correct as to the other pleas.

Judgment reversed, and cause remanded.  