U.S. Supreme Court McCoul v. Lekamp's Administrator, 15 U.S. 2 Wheat. 111 111 (1817)
McCoul v. Lekamp's Administrator
15 U.S. (2 Wheat.) 111
ERROR TO THE CIRCUIT COURT
FOR THE DISTRICT OF VIRGINIA
A.L. brought an action of assumpsit in the circuit court, and after issue joined, the plaintiff died and the suit was revived by scire facias in the name of his administratrix. While the suit was still depending, the administratrix intermarried with F.A., which marriage was pleaded puis darrein continuance. Held that the scire facias was thereupon abated, and a new scire facias might be issued to revive the original suit in the name of F.A. and wife as the personal representative of A.L. in order to enable her to prosecute the suit until a final judgment under the judiciary, act of 1789, ch. 20, sec. 31.
Where a witness, a clerk to the plaintiff, swore that the several articles of merchandise contained in the account annexed to his deposition were sold to the defendant by the plaintiff and were charged in the plaintiff's day book by the deponent and another person who is dead, and that the deponent delivered, and further swore that he had referred to the original entries in the day book, held that this was sufficient evidence to prove the sale and delivery of the goods.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
Albert Lekamp brought this suit in the Circuit Court for the District of Virginia for the recovery of money claimed to be due to him from Neil McCoul, the defendant below. After issue joined, the plaintiff died, and the suit was revived in the name of his administratrix. While the suit was still depending, the administratrix intermarried with Frederick L. E. Amelung, which marriage was pleaded puis darrein continuance. The scire facias was thereupon abated and a new scire facias issued to revive the original action in the names of Amelung and wife, as the personal representatives of Albert Lekamp.
At a subsequent term, the cause was tried on the original issue and a verdict found for the plaintiff on which the defendant prayed that the judgment might be arrested for the following reasons:
"Because he saith that after the plea pleaded the original plaintiff, Albert Lekamp departed this life, and Sophia Lekamp, his administratrix, sued forth a scire facias to revive the suit on 4 July, 1811; that while the suit stood revived in her name as administratrix, the said Sophia Lekamp intermarried with Frederick L. E. Amelung, and 4 December, 1812, this defendant having pleaded the intermarriage aforesaid, it was ordered that the scire facias be abated, whereupon the said Frederick L. E. Amelung and Sophia, his wife, as administratrix aforesaid, sued out a new scire facias to revive the suit, and there being no new plea pleaded or any consent that the cause should be revived in any
other manner than the law would direct, the jury was empanelled and a verdict found as aforesaid, and the said defendant saith that the act of Congress in that case made and provided doth not warrant the revival of the suit in the name of the said Amelung and wife under the circumstances aforesaid."
These errors were overruled, and a judgment rendered conforming to the verdict of the jury.
At the trial of this cause, the plaintiff offered in evidence the deposition of Zachariah Roberts, with the accounts thereunto annexed. The deponent states that he was clerk of Albert Lekamp from 10 January, 1804, to 9 June, 1809. That the account B., annexed to his deposition, is a just and true account current taken from the books. That on 8 November, 1805, Neil McCoul paid up the balance for goods purchased previous to 26 April, 1805, with the interest due thereon as stated. He then recapitulates in his deposition the several items on the debit side of the account current, which is composed of the sums total of goods delivered on particular days, and
"states most positively that the said items are taken from the account current of the said Neil McCoul on the said Lekamp's books, which books he kept, and has had reference thereto. That viewing and referring to the other paper writing annexed, marked also with the letter B., beginning with the words, 'a statement of merchandise sold and delivered to Neil McCoul,' he saith that the several articles of merchandise therein enumerated, specified, described, and at large set forth and
charged, and contained also in the before-mentioned account current, marked B., were sold by said Albert Lekamp in his lifetime and at the respective times at which they are charged to the defendant, Neil McCoul, and were charged in the day book of the said Albert Lekamp by the deponent and Mr. Vithake, who is now deceased, and the deponent delivered them,"
&c.; The deposition then proceeds to state that the prices are correctly stated, that all due credits, so far as he knows, are given, and that the balance is truly struck, and adds that the deponent, before giving in his deposition, had reference to the original entries on the day books of Lekamp, which entries were made by Mr. Vithake himself.
The first account, marked B., is, as is stated in the deposition, the account current. The second account, also marked B., is a particular and detailed enumeration of the articles sold and delivered, with their prices, and agrees in amount with the account current.
The counsel for the defendant moved the court not to allow the said accounts to go in evidence to the jury as not being copies of the original entries in the day books or original books of the plaintiff's intestate, but the court was of opinion, that the account B., beginning with the words "statement," &c.;, was substantially stated by the witness to be a copy from the day books, or original books of entries, and that the same was sufficiently proved to go in evidence to the jury, together with the said deposition. The defendants excepted to this opinion.
Two errors are assigned in the proceedings of the court below:
1st. In reviving this suit after the abatement of the first scire facias, which error ought to have arrested the judgment.
2d. In permitting the account, marked B., to go in evidence to the jury.
The first error assigned is of some consequence, as the decision upon it furnishes a rule of practice for all the circuit courts of the United States.
The argument for the plaintiff in error is briefly this. At common law, all suits abate by the death or marriage of the plaintiff, if a feme sole, and such suit could not be prosecuted in the name of the representative or of the husband and wife unless enabled so to do by statute. The act of Congress provides for the case of death, but not for the case of marriage. Consequently the suit of a feme sole who marries abates as at common law.
This argument, if applied to an original suit instituted by a feme sole, would certainly by conclusive; but this suit was not instituted by a feme sole. It was instituted by Albert Lekamp, who died while it was depending. The law says
"That where any suit shall be depending in any court of the United States and either of the parties shall die before final judgment, the executor or administrator of such deceased party, who was plaintiff, petitioner, or defendant in case the cause of action doth by law survive, shall have full power to prosecute or defend any such suit or action until final judgment."
When, therefore, Albert Lekamp died, his administratrix,
since the cause of action survived, had full power given her by the statute to prosecute this suit until final judgment. The suit did not abate, but continued on the docket as the suit of Albert Lekamp. It did not become the suit of the administratrix, but remained the suit of the intestate, to be prosecuted by his representative. The marriage of this representative would abate her own suit, but could not abate the suit of her intestate. That still remained on the docket, to be prosecuted by her according to the letter of the law as well as its spirit, "until final judgment." If her marriage abated her scire facias, and the original suit still remained on the docket, was still depending, then its state was the same as if a scire facias had never issued, in which case all will admit a scire facias ought to issue in the name of husband and wife.
This Court is unanimously of opinion that as the original suit did not abate, the scire facias in the name of the administratrix, while a feme sole, constituted no bar to a scire facias in the name of the husband and wife after her marriage, to enable her still "to prosecute that suit until a final judgment."
The question which grows out of the bill of exceptions is entirely a question of construction. All admit that in this action the delivery of the goods sold must be proved and that the entries to which the witness may refer must be the original entries made in the day book. The doubt is whether, upon right construction, the deposition of Zachariah Roberts amounts to this. He says that the several articles of merchandise contained in the account
annexed to his deposition were sold to the defendant by Albert Lekamp and were charged in the day book by the deponent and another person who is dead, and that the deponent delivered them. He further swears that he had referred to the original entries in the day book. He could not swear more positively to the delivery of the goods than he does, but as it is clear that he could not, even for a week, recollect each article which is enumerated, he accounts for his recollection by saying that they were entered in the day book partly by himself, and partly by another clerk who is dead, and that he has referred to this day book. This is an account taken from the original entries made at the time of delivery, and is therefore admissible. The account current, though agreeing with the account taken from the day book, appears not to have gone to the jury.